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Court of Criminal Appeal 4 December 2009

Barton v R

[2009] NSWCCA 285

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE AGREED STATEMENT OF FACTS AGGRAVATING CIRCUMSTANCES

Citation: Barton v R [2009] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 4 December 2009
Judge(s): Macfarlan JA, Blanch J, Howie J

Background

The appellant was sentenced in the District Court on three offences: perverting the course of justice (arising from giving police a false identity after a traffic stop), malicious wounding (glassing a man at a Balmain hotel in 2005), and break and enter with intent (forcing entry into a Lilyfield home armed with a shovel in 2006, threatening occupants and pursuing them into the street). The effective sentence was a non-parole period of three years and nine months, with a total term of five years and nine months.

The appellant initially challenged his conviction for break and enter with intent but abandoned that ground before the hearing. The appeal before the Court of Criminal Appeal focused primarily on the severity of the sentences, and most sharply on the sentence for the break and enter offence.

The Crown had tendered an agreed statement of facts for the break and enter charge. That statement described conduct that arguably went beyond what was required to establish the offence charged, and the sentencing judge's remarks appeared to reflect those additional facts when passing sentence.

  • Whether the District Court sentencing judge had impermissibly taken into account aggravating circumstances that would have made the appellant liable for a more serious offence, in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383
  • Whether the agreed statement of facts tendered by the Crown contained material inconsistent with the offence for which the appellant was being sentenced
  • Whether the overall sentence was manifestly excessive and should be reduced

Decision

The Court accepted that the sentencing judge's remarks about the break and enter offence referenced an actual assault committed during the incident. Because the agreed statement of facts included material capable of supporting a more serious charge under s 112 of the Crimes Act (either unaggravated, carrying a maximum of 14 years, or in circumstances of aggravation under s 105A, carrying 20 years), the sentencing judge was at risk of contravening the De Simoni principle. That principle prohibits a sentencing court from treating as an aggravating factor any circumstance that would have rendered the offender liable to a greater punishment under a different, more serious offence.

Howie J emphasised that the error flowed directly from the Crown's failure to ensure the agreed statement of facts was confined to conduct consistent with the charge actually before the court. The Court noted the importance, affirmed in R v Palu, of agreed facts being drafted so as not to expose a sentencing judge to this error.

Despite finding that technical error, the Court concluded the overall total sentence was appropriate and not excessive. No reduction in the effective sentence was warranted. To make plain that no impermissible facts had been taken into account, however, the Court restructured the individual sentence for the break and enter count while preserving the same aggregate outcome.

Orders Made

  • The abandoned appeal against conviction be dismissed.
  • Leave to appeal against the sentence for perverting the course of justice granted; appeal dismissed.
  • Leave to appeal against the sentence for malicious wounding granted; appeal dismissed.
  • Leave to appeal against the sentence for break and enter with intent granted; sentence quashed and replaced with a non-parole period of 12 months commencing 29 July 2010 and a balance of term of 2 years, with release to parole on 29 July 2011. The effective total sentence remained a non-parole period of 3 years and 9 months with a total term of 5 years and 9 months, identical in effect to the District Court sentence.

Key Takeaways

  • Under the De Simoni principle, a sentencing court cannot treat as an aggravating circumstance any fact that would have exposed the offender to conviction for a more serious offence carrying a greater maximum penalty.
  • Agreed statements of facts carry real risk when they include conduct going beyond what is needed to establish the charged offence. The Court of Criminal Appeal in R v Palu had already stressed this, and the present case reinforced that the Crown bears particular responsibility for ensuring agreed facts remain within proper bounds.
  • A technical De Simoni error in the sentencing remarks does not automatically result in a reduced sentence. Where the Court of Criminal Appeal is satisfied that the overall sentence reflects the totality of criminality correctly, it may restructure individual components without altering the aggregate outcome.
  • Partial concurrency between sentences for entirely separate and distinct offences is not automatically warranted. Howie J noted that the partial concurrence granted between the perverting the course of justice sentence and the malicious wounding sentence was, in his view, unjustified on the facts.
  • Reformulating a sentence to make clear that only permissible facts were taken into account is an available remedy even where the end result is functionally identical to the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 35(1)(a), 105A, 112, 113(1), 114, 319
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v Overall (1993) 71 A Crim R 170
- R v Bakewell (unreported, NSWCCA, 27 June 1996)
- R v Lardner (unreported, NSWCCA, 10 September 1998)