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Court of Criminal Appeal 23 April 2012

Cassidy v R

[2012] NSWCCA 68

Also reported as (2012) 220 A Crim R 420
Homicide
CRIMINAL LAW SENTENCING WHETHER UNCHARGED OFFENCE MORE SERIOUS APPEAL STANDARD NON PAROLE PERIOD

Citation: Cassidy v R [2012] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 23 April 2012
Judges: Basten JA, Blanch J, Beech-Jones J

Background

The applicant pleaded guilty in the District Court to an offence under s 198 of the Crimes Act 1900 (NSW): intentionally destroying motor vehicles and a dwelling house with intent to endanger the life of the victim. The offending involved a homemade incendiary device placed near an LPG fuel tank at the victim's premises.

After the fire, the applicant made statements to police and to a family acquaintance that strongly suggested he had intended the occupants to die, not merely to have their lives endangered. The sentencing judge took those statements into account both in rejecting any claim of remorse and in characterising the seriousness of the offending.

The applicant sought leave to appeal the sentence, arguing that reliance on the statements as evidence of an intention to kill contravened the principle in The Queen v De Simoni (1981) 147 CLR 383, because an intention to kill is an element of the more serious offence of attempted murder, with which he had never been charged.

  • Whether the sentencing judge contravened the De Simoni principle by taking into account an apparent intention to kill when sentencing for an offence that required only an intent to endanger life.
  • Whether offences of attempted murder under ss 28 to 30 of the Crimes Act 1900 (NSW) are "more serious" than the charged offence under s 198 for De Simoni purposes, given that both carry the same maximum penalty of 25 years imprisonment.
  • Whether a less severe sentence was warranted in law following any error.

Decision

The Court of Criminal Appeal held that the sentencing judge had erred. Although taking the statements into account for the purpose of denying remorse was permissible, using them to aggravate the seriousness of the offending was not. An intention to kill is an element of attempted murder under ss 28 to 30 of the Crimes Act, offences with which the applicant had not been charged and to which he had not pleaded guilty.

The Crown argued that attempted murder was not a "more serious" offence for De Simoni purposes because it carried the same maximum penalty of 25 years. The Court rejected that argument on two grounds. First, ss 28 to 30 carry a standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999 (NSW), whereas s 198 carries no such standard non-parole period. That legislative distinction demonstrates Parliament treated attempted murder as the more serious category of offence. Second, in terms of moral culpability, an intention to kill is inherently more serious than an intention merely to endanger life, and would therefore ordinarily warrant a more severe sentence.

The Court also noted a further error: the sentencing judge had not expressly found, beyond reasonable doubt, that the applicant actually held an intention to kill at the time of the offence. The post-offence statements did not necessarily establish such an intention, and the plea and accepted statement of facts did not admit it. Any finding of that kind required the criminal standard of proof to be applied expressly.

On resentencing, the Court acknowledged the objective seriousness of the offence independently of any intention to kill, the applicant's significant criminal history, the absence of remorse, and his limited rehabilitation prospects. The applicant received the full 25 per cent discount for his guilty plea.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentence and non-parole period imposed in the District Court quashed.
  • Applicant sentenced to a non-parole period of nine years with a balance of term of three years, commencing 30 September 2009.
  • Eligible for release to parole on 29 September 2018.

Key Takeaways

  • The De Simoni principle applies even where the uncharged offence carries the same maximum penalty as the offence charged. The Court of Criminal Appeal confirmed that a higher standard non-parole period, and greater moral culpability, are each independently sufficient to render an offence "more serious" for De Simoni purposes.
  • Under the De Simoni principle, a sentencing court cannot treat a circumstance of aggravation as bearing on the seriousness of offending where that circumstance would constitute an element of an uncharged, more serious offence.
  • A distinction exists between using post-offence statements to assess remorse (permissible) and using them to aggravate the gravity of the offending itself (not permissible where the statements disclose elements of a more serious uncharged offence).
  • Where a sentencing judge proposes to find an aggravating intention not admitted by the plea or statement of facts, that finding must be made expressly and to the criminal standard of proof beyond reasonable doubt.
  • The presence or absence of a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) is a relevant legislative indicator of relative offence seriousness when applying the De Simoni principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 28, 29, 30, 198
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(4), 54A and Table to Part 4, Division 1A
- Criminal Code (WA)

Cases
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- Muldrock v R [2011] HCA 39; 85 ALJR 1154
- McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1