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Court of Criminal Appeal 8 October 2010

SIMPSON v R

[2010] NSWCCA 225

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Simpson v R [2010] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 8 October 2010
Judges: McColl JA, Hulme J, Latham J

Background

The appellant pleaded guilty in the Local Court to one charge of aggravated steal from the person under s 95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence occurred at Redfern railway station, where the appellant used an umbrella to hook a bag from an adjoining toilet cubicle. In the process, the bag struck the victim in the head, causing bruising and swelling, which constituted the circumstance of aggravation.

Freeman DCJ in the District Court sentenced the appellant to a non-parole period of one year and ten months, with a balance of term of two years, taking into account two months of pre-sentence custody. The sentencing judge noted that the offence fell slightly below the mid-range of objective seriousness for steal-from-the-person offences, and structured the sentence with a finding of special circumstances to allow for extended supervision on release.

The appellant sought leave to appeal in the Court of Criminal Appeal, raising two grounds: that affidavit material not before the sentencing judge qualified as fresh evidence warranting intervention, and that the overall sentence was manifestly excessive.

  • Whether the appellant's post-sentence affidavit, describing the removal of her newborn child from her care immediately after birth, qualified as fresh evidence capable of founding appellate intervention.
  • Whether the sentencing judge's remarks demonstrated that the structure of the sentence depended materially on the assumption that the appellant would care for her infant in custody.
  • Whether the overall sentence of four years (non-parole period of one year and ten months) was manifestly excessive for this offence, having regard to objective and subjective factors.

Decision

On the fresh evidence argument, Latham J (with whom McColl JA and Hulme J agreed) rejected the submission that the child's removal from the appellant's care immediately after birth constituted material that warranted intervention. The Court found that a reasonable enquiry of the Department of Community Services prior to sentencing would have disclosed the Department's intention to apply to remove the baby. The material therefore failed to satisfy the requirements of fresh evidence because it was reasonably ascertainable at the time of sentencing.

The Court also found the underlying logic of the argument problematic in two respects. The submission assumed both that the sentencing judge had imposed a longer sentence solely because the appellant would be caring for an infant in custody, and that he would have reduced the sentence further to allow reunion with the child. On the contrary, a reading of the remarks on sentence did not support the conclusion that the expectation of in-custody infant care was a determinative or even significant factor in fixing the non-parole period. General rehabilitation considerations, specific deterrence, punishment and denunciation were the operative sentencing factors.

On manifest excess, the Court found the sentence was within an available range. The JIRS statistics showed the total sentence of four years sat slightly above the median for s 95(1) offences, but the Court noted that specific deterrence and punishment properly played a prominent role given the appellant's significant history of convictions for steal from the person and related offences, and her offending while under the influence of multiple substances. The non-parole period representing half of the head sentence reflected the special circumstances finding, which acknowledged the appellant's need for long-term supervision. The Court found no lesser period in custody was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Fresh evidence tendered on appeal will not be admitted where it could have been obtained through reasonable enquiry prior to sentencing; the Court of Criminal Appeal confirmed this standard was not met where pre-existing departmental proceedings made the outcome reasonably discoverable.
  • A submission that a sentencing judge would have imposed a lesser sentence in different circumstances must be grounded in the actual remarks on sentence; the Court rejected a submission resting on inference alone where the remarks did not support the asserted reliance.
  • Where a sentence sits slightly above the statistical median for the relevant offence type, it will not necessarily be manifestly excessive if individual sentencing factors, such as significant criminal history and specific deterrence, justify the result.
  • Under s 95(1) of the Crimes Act 1900, general deterrence is a significant consideration in sentencing for steal-from-the-person offences, given the maximum penalty of 20 years imprisonment and the legislature's evident assessment of their gravity.
  • A finding of special circumstances, resulting in a non-parole period that is half the total head sentence (rather than the standard two-thirds), was upheld where extended post-release supervision was appropriate to address rehabilitation needs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1) (aggravated steal from the person)

Cases Cited
- Iglesias v R [2006] NSWCCA 261
- Springer v R [2007] NSWCCA 289; 177 A Crim R 13
- R v Ranse NSWCCA (unreported, 8 August 1994)
- Vaeila v R [2010] NSWCCA 113
- R v Cage [2006] NSWCCA 304
- R v Kelly [2005] NSWCCA 280; 155 A Crim R 499
- R v Ibrahimi [2005] NSWCCA 153
- R v Marinos [2003] NSWCCA 136
- R v Maloukis [2002] NSWCCA 155
- R v Wilson [2001] NSWCCA 399
- R v Taylor [2000] NSWCCA 442