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Court of Criminal Appeal 28 November 2014

Simms v R

[2014] NSWCCA 286

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCE FELL ABOVE MID RANGE BUT NOT AT OR NEAR TOP OF RANGE SENTENCE MANIFESTLY EXCESSIVE

Citation: Simms v R [2014] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judges: Price J, McCallum J, R A Hulme J (all agreeing)

Background

The applicant pleaded guilty in the District Court at Newcastle to intentionally destroying property by fire, contrary to s 195(1)(b) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 10 years' imprisonment. The sentencing judge imposed a term of 6 years with a non-parole period of 3 years and 7 months.

The offence arose from a domestic dispute in August 2013. The applicant purchased petrol from a service station, returned to his de facto partner's rented home unit, and set it alight. The unit was completely destroyed and the adjoining unit, occupied by a woman and her young sister, sustained heat, smoke, and water damage. The neighbours escaped safely. The applicant was arrested the following day and was on parole at the time of the offence.

The applicant had an extensive criminal history dating from age 13, had spent the great majority of his adult life in custody, and had been at liberty for only around three and a half months at the time of the offence. He was diagnosed with Substance Use Disorder and Antisocial Personality Disorder. The applicant sought leave to appeal his sentence on three grounds.

  • Whether the sentencing judge erred by taking subjective matters into account only when assessing the non-parole period, rather than also in determining the head sentence
  • Whether the sentencing judge made an error of fact in characterising the applicant's time in the community as "lengthy supervision"
  • Whether the sentence of 6 years was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error. A careful reading of the remarks on sentence showed that the sentencing judge did consider subjective matters when assessing the overall sentence, not merely the non-parole period. The ground was rejected.

On the second ground, the applicant argued the sentencing judge was wrong to describe him as having been subject to "lengthy supervision in the community" when he had in fact been at liberty for only brief periods. The Court found the remark was made in the context of explaining why his rehabilitation prospects were guarded, and the characterisation was not a clear factual error. That ground also failed.

The third ground succeeded. The Court accepted that the offence was serious, involving deliberate planning, a domestic violence motive, significant property damage, and real danger to the lives of the neighbours. However, the Court found the offence sat above the mid-range of objective seriousness but could not properly be characterised as at or near the worst category. The sentencing judge had not expressly found it to be a worst-case offence, and the Court observed that such a finding would ordinarily have been stated explicitly if intended. A sentence of 6 years was therefore manifestly excessive. The Court re-sentenced the applicant to a total term of 5 years, reflecting approximately a 25 per cent discount for the utilitarian value of the guilty plea, and maintained the finding of special circumstances to allow for a longer parole period.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentence imposed in the District Court on 12 February 2014 quashed
  • Applicant re-sentenced to imprisonment with a non-parole period of 3 years 3 months (commencing 12 February 2014, expiring 11 May 2017) and a balance of term of 1 year 9 months (concluding 11 February 2019)

Key Takeaways

  • A sentence pitched at a level appropriate to the worst or near-worst category of an offence will be manifestly excessive where the sentencing judge has not expressly made such a finding, and the facts do not clearly support it.
  • Where an offence falls above the mid-range of objective seriousness but below the worst category, the distinction matters to the final sentence and is a ground on which the Court of Criminal Appeal will intervene.
  • The Court of Criminal Appeal confirmed that subjective circumstances are relevant to both the head sentence and the non-parole period; a sentencing judge who appears to confine such considerations to the non-parole period risks appellate review, though on the facts here no error was established.
  • No error was found in describing an offender's parole history as reflecting community supervision, even where the actual periods at liberty were brief, provided the remark is understood in context.
  • Under the Crimes Sentencing Procedure Act 1999 (NSW), a finding of special circumstances can justify a non-parole period that represents a lower proportion of the total term, particularly where an offender is institutionalised and requires structured reintegration into the community.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571