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Court of Criminal Appeal 27 May 2010

VAEILA, Jonathon v R

[2010] NSWCCA 113

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL DE SIMONI PRINCIPLE AND MANIFEST EXCESS NO ISSUE OF PRINCIPLE NO BASIS FOR SUBMISSION NO IDENTIFIABLE OR MANIFEST ERROR

Citation: VAEILA, Jonathon v R [2010] NSWCCA 113
Court: Court of Criminal Appeal, New South Wales
Date: 27 May 2010
Judge(s): Hodgson JA; Johnson J; Rothman J (Rothman J delivering the judgment of the Court)

Background

The appellant pleaded guilty in the District Court to demanding property by force, in company, with intent to steal, contrary to s 99(2) of the Crimes Act 1900. The offence carried a maximum penalty of 14 years' imprisonment. The offending took place at St Marys Railway Station in the early hours of 5 January 2008, when the appellant and two co-offenders confronted a lone victim, demanded his money and bicycle, and punched and kicked him repeatedly. Police arrived and interrupted the attack before any further harm was done.

District Court Judge Hughes sentenced the appellant to a head sentence of 4 years and 3 months' imprisonment with a non-parole period of approximately 2 years and 1 month. The sentencing judge assessed the appellant's moral culpability as "somewhat less than mid-range" and allowed a 15 per cent discount for the guilty plea.

The appellant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge had breached the principle in R v De Simoni by treating the offence as if it were the more serious offence of robbery, and that the sentence was manifestly excessive.

  • Whether the sentencing judge contravened the De Simoni principle by taking into account conduct constituting a more serious offence (robbery) when sentencing for the lesser offence of demanding property by force in company.
  • Whether the sentence of 4 years and 3 months with a non-parole period of approximately 2 years and 1 month was manifestly excessive for the offence as established by the agreed facts.

Decision

On the De Simoni ground, the Court found the underlying premise of the argument did not hold. Reading the sentencing judge's remarks as a whole, his Honour had expressly identified the offence before the Court as "demand property with force in company," noted it was a lesser offence than robbery, and consistently sentenced on that basis. His Honour's reference to robbery was no more than a contextual observation and did not indicate that he sentenced on the footing that a more serious offence had been committed. The Court held this ground failed at the outset.

On manifest excess, the Court reached a conclusion that actually cut against the appellant. Rothman J held that the sentencing judge had significantly underestimated, rather than overstated, the seriousness of the offence. The attack involved three persons actively punching and kicking a sole victim, who had already surrendered his property. The violence appeared to have ceased only because police arrived. In the Court's assessment, the offence warranted a classification above mid-range in seriousness.

The statistical material before the Court showed that the sentence may have exceeded the range of sentences previously imposed for comparable offences. However, the Court reiterated that statistics serve as a guide only and do not define the available range, which is set by the maximum penalty and the gravity of the particular offending. The test for manifest excess requires satisfaction that the sentence imposed is beyond the range available on the proved facts; that threshold was not reached here. The Court was equally not satisfied, under s 6(3) of the Criminal Appeal Act 1912, that a less severe sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from taking into account conduct constituting a more serious offence than the one charged; here, the Court found no breach because the sentencing judge expressly acknowledged the charged offence was lesser than robbery and sentenced accordingly.
  • Sentencing statistics represent a guide to the range that has previously been imposed, but they do not define the boundaries of the range available to a sentencing court; that range is set by the maximum penalty and the gravity of the offending conduct.
  • In dismissing the appeal, the Court of Criminal Appeal found the sentencing judge had actually underestimated the seriousness of the offence, a circumstance that itself foreclosed any finding of manifest excess.
  • Manifest excess requires the appellate court to be satisfied that the sentence is beyond the range available on the proved facts; a sentence that appears to sit above statistical norms does not automatically satisfy that test.
  • Group violence against a lone victim in a public transport setting, continuing after the victim has submitted to the demands, was characterised by the Court as warranting a higher objective assessment of seriousness than the sentencing judge applied.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 99(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499
- R v Ranse (Court of Criminal Appeal, 8 August 1994, unreported)