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Court of Criminal Appeal 28 February 2014

Sampson v R

[2014] NSWCCA 19

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Sampson v R [2014] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 28 February 2014
Judges: Hoeben CJ at CL, Adams J, R A Hulme J

Background

The appellant was a 29-year-old Aboriginal woman convicted in the District Court of hindering the discovery of evidence concerning a serious indictable offence, contrary to s 315(1)(b) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of seven years' imprisonment.

The offence arose from the shooting of a police officer in Tamworth in March 2012. While police were at the home of the alleged shooter to execute a crime scene warrant, the appellant was a passenger in a vehicle driven by the alleged shooter's partner. At the partner's request, and relaying the partner's instructions by phone, the appellant directed the partner's teenage son to retrieve a box of ammunition from inside the house and conceal it in a toilet cistern. Police, who had intercepted the call, forced entry immediately and found the box hidden in the sewer pipe.

The District Court sentenced the appellant to three years' imprisonment with a non-parole period of 18 months, reflecting a 25 per cent discount for her guilty plea. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of three years' imprisonment (starting point of four years before the plea discount) was manifestly excessive for the offence as charged
  • Whether the primary judge gave adequate weight to the objective seriousness of the offence and the strong subjective circumstances of the offender
  • What sentence, if any, was appropriate given the appellant had already served approximately 11 months in custody by the time of the appeal hearing

Decision

Adams J (with whom Hoeben CJ at CL and R A Hulme J agreed) found the sentence was manifestly excessive. While the offence was committed in connection with a murder investigation, the police were not in fact hindered and had to perform only some excavation to recover the ammunition. The appellant had acted on the spur of the moment, at another person's instigation, without premeditation.

The primary judge had described the offending as sitting in the lower part of the middle range of objective seriousness for this type of offence, yet the starting point of four years was well over half the statutory maximum. Adams J found it difficult to reconcile that characterisation of seriousness with the sentence imposed.

The subjective circumstances weighed heavily in the appellant's favour. Her background was marked by severe domestic violence, deprivation, and substance dependency. She had undertaken rehabilitation programmes in custody, and her mother required care and support. Adams J also took into account evidence of depression and the absence of premeditation. Although she did not express remorse, the guilty plea carried some weight as evidence of it.

Adams J concluded that a 12-month suspended sentence would have been appropriate at first instance. However, because the appellant had already spent approximately 11 months in custody by the time of the appeal, imposing a suspended sentence would not have been fitting. Instead, the Court imposed no penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed
  • Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no penalty imposed

Key Takeaways

  • A starting point of four years' imprisonment was held to be manifestly excessive for an offence of hindering discovery of evidence that fell in the lower part of the middle range of objective seriousness, particularly where the investigation was not in fact materially impeded.
  • Where an offender acts on another's instigation, without premeditation, and plays a secondary role, those factors bear significantly on the proper assessment of objective seriousness.
  • Strong subjective circumstances, including a history of severe domestic violence, substance dependency, and rehabilitative steps taken in custody, can substantially affect the sentence ultimately imposed.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction and impose no further penalty, a course the Court of Criminal Appeal found appropriate where the time already served in custody exceeded what a proper sentence would have required.
  • A guilty plea retains some weight as evidence of remorse even where an offender does not otherwise express contrition.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 315(1)(a), (b) and (c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 12

Cases
- Mobbs v R [2005] NSWCCA 438
- R v Ahmad [2005] NSWSC 848
- R v Bailey [2006] NSWSC 49
- R v Derbas [2003] NSWCCA 44
- R v Grant [2012] NSWSC 1491
- R v Hamze [2005] NSWSC 136
- R v Ibrahim [2005] NSWSC 1028
- R v Lawrence [2004] NSWCCA 404
- R v Mobbs [2005] NSWCCA 371
- R v Pearson [2005] NSWCCA 116
- R v Richmond [2000] NSWCCA 173
- R v Skinner [2000] NSWSC 303
- R v Slacke [2013] NSWSC 1215
- R v Weston [2012] NSWSC 1498