Citation: Croaker v R [2008] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 7 November 2008
Judge(s): Bell JA; Latham J; Fullerton J
Background
The applicant pleaded guilty in the District Court to aggravated break, enter and commit a serious indictable offence (assault occasioning actual bodily harm) under s 112(1) of the Crimes Act 1900 (NSW). He also asked the sentencing judge to take into account two related offences of malicious damage on a Form 1. The offending arose from an early morning home invasion in which the applicant forced his way into the home of his former de facto partner in Orange and assaulted her by throwing a steel dining chair at her.
The relationship had ended in 2004 following a prior assault by the applicant on the same complainant. At the time of the offence, the parties had some social contact but had not resumed cohabitation. The sentencing judge imposed three years' imprisonment, comprising a non-parole period of two years and three months with a balance of nine months, commencing 18 November 2006.
The applicant sought leave to appeal against the severity of the sentence, contending that the District Court had made a legal error in the sentencing process.
Legal Issues
- Whether the sentencing judge committed a De Simoni error by treating the applicant's conduct as a repeat domestic violence offence, thereby taking into account an aggravating circumstance that would have supported a more serious charge than the one to which the applicant pleaded guilty
- Whether the sentencing judge correctly identified the aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999
- Whether special circumstances existed to justify a variation from the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
Decision
The Court of Criminal Appeal identified a De Simoni error in the sentencing judge's remarks. The principle from R v De Simoni (1981) 147 CLR 383 prohibits a sentencing court from taking into account, as an aggravating circumstance, conduct that would have constituted a more serious offence than the one for which the offender was convicted. The District Court had treated the fact that this was a repeat assault on the same complainant in a domestic context as a significant aggravating factor, but this went beyond what was permissible given the charge on which the applicant was sentenced.
Bell JA also found that the sentencing judge had incorrectly identified the sole aggravating factor as the use of a weapon (the thrown chair). The court concluded that, correctly analysed, there were no formal factors of aggravation applicable to the charge as sentenced, though the mitigating factors identified by the sentencing judge remained relevant.
On the question of special circumstances, the Court declined to make a finding in the applicant's favour. Although the applicant had expressed willingness to undertake the Weigelli Centre alcohol rehabilitation program, the Court noted there was little evidence he had previously taken up similar opportunities, and his age and criminal history did not support the conclusion that special circumstances had been established.
Taking into account the De Simoni error, the applicant's favourable progress in custody, the 25 per cent discount for the early guilty plea, and the modest increment warranted by the Form 1 offences, the Court imposed a reduced sentence.
Orders Made
- Leave to appeal granted
- Appeal allowed and the District Court sentence quashed
- In lieu thereof, the applicant was sentenced to a non-parole period of two years, commencing 18 November 2006 and expiring 17 November 2008, with a balance of term of eight months from 18 November 2008
- The applicant was directed to be released to parole at the expiration of the non-parole period
Key Takeaways
- A De Simoni error occurs where a sentencing court treats conduct as an aggravating circumstance when that conduct would have constituted a more serious charge than the offence actually before the court; the Court of Criminal Appeal confirmed this principle applies equally in domestic violence contexts.
- Identifying prior assaults on the same victim as a repeat domestic violence aggravating factor may miscarry if the sentencing framework for the charge does not accommodate that circumstance without elevating the offending beyond the convicted offence.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, aggravating and mitigating factors must be applied only to the extent supported by the offence as charged and proven; errors in their identification can constitute appealable error.
- Expressed willingness to undertake rehabilitation, standing alone, is insufficient to establish special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, particularly where the offender has not previously acted on earlier rehabilitative opportunities.
- Favourable progress in custody is a relevant consideration when the Court of Criminal Appeal re-sentences, and may support a reduction even where the original non-parole period was otherwise within range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44(2)
- Criminal Appeal Act 1912 (NSW)
Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Fernando (1992) 76 A Crim R 58
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- R v Astill (1992) 63 A Crim R 148
- R v Atonio [2005] NSWCCA 200; (2005) 154 A Crim R 183
- R v Burton [2008] NSWCCA 128
- R v Cocking [1999] NSWCCA 311
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v Millar [2005] NSWCCA 202
- R v Ngati [2008] NSWCCA 3
- R v Petrie [2003] NSWCCA 208; (2003) 141 A Crim R 396
- R v Price [2005] NSWCCA 285
- R v Timu [2002] NSWCCA 421
- R v Tory [2006] NSWCCA 18
- Sharpe v R [2006] NSWCCA 255