Citation: Issa v R [2017] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 2 August 2017
Judges: Hoeben CJ at CL, Adamson J, Bellew J
Background
The appellant was a builder whose company faced civil claims in the District Court and the Consumer, Trader and Tenancy Tribunal from several clients. Between March and May 2013, he carried out a series of firebomb attacks on the homes and offices of those clients and their legal representatives, apparently in an attempt to disrupt the proceedings against him.
He was convicted after trial of five counts of intentionally damaging property by fire (under s 195(1)(b) of the Crimes Act 1900 (NSW)) and five corresponding counts of doing an act intending to pervert the course of justice (under s 319). He also pleaded guilty during trial to recklessly causing grievous bodily harm in company. An aggregate sentence of 12 years' imprisonment was imposed, with a non-parole period of 9 years.
The appellant sought leave to appeal against the aggregate sentence, raising arguments about the De Simoni principle, the proper construction of the property damage offences in the Crimes Act, and manifest excess.
Legal Issues
- Whether the sentencing judge infringed the De Simoni principle by taking into account the appellant's foresight of the consequences of property damage when sentencing for the s 195 fire damage offences.
- Whether the more serious property damage offences under ss 196 and 198 of the Crimes Act require intention (as distinct from recklessness) as to the relevant consequences, such that taking foresight into account does not amount to sentencing for a more serious offence.
- Whether the aggregate sentence was manifestly excessive.
Decision
The De Simoni principle provides that a sentencing court must not take into account circumstances of aggravation that would have warranted conviction for a more serious offence than the one of which the offender was convicted. The appellant argued that the sentencing judge had impermissibly treated his foresight of the consequences of the fires (such as endangering life or damaging occupied buildings) as an aggravating feature, effectively sentencing him for offences under ss 196 or 198 rather than s 195.
The Court of Criminal Appeal rejected that argument. Adamson J analysed the mental element required for the more serious offences under ss 196 and 198 and concluded that both require an intention to bring about the relevant consequence, not mere recklessness or foresight. Because a person can foresee a consequence without intending it, taking foresight into account as a circumstance of the s 195 offences did not equate to sentencing the appellant for the more serious offences. The De Simoni principle was therefore not infringed.
On the question of statutory interpretation, the Court noted that while a Second Reading Speech can assist in construing a legislative provision, it is not determinative. The express words of the statute remain the primary guide to legislative intent.
On manifest excess, the Court found no error. The offending was serious in both scale and kind: five separate firebombing episodes targeting multiple victims, directed at people who were simply exercising their right to seek legal redress in the courts and tribunals of New South Wales. The sentencing statistics cited by the appellant were of limited utility given the repeat nature of the offending against different victims over an extended period. No basis for a finding of special circumstances was established.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Under ss 196 and 198 of the Crimes Act 1900 (NSW), conviction requires proof of an intention to cause the relevant consequence. Recklessness or foresight as to that consequence is insufficient, which means those provisions carry a higher mental element than s 195.
- The De Simoni principle is not infringed when a sentencing court takes into account an offender's foresight of consequences, provided those consequences form part of the objective seriousness of the offence charged and do not bring the conduct within the definition of a more serious offence requiring intent.
- In dismissing the appeal, the Court confirmed that sentencing statistics have limited utility where the offending involves repeated incidents against multiple victims over an extended period, circumstances not typically reflected in aggregate statistical data.
- A Second Reading Speech may assist in construing a statutory provision but is not determinative. The express words of the statute remain the principal guide to legislative intent, consistent with s 34 of the Interpretation Act 1987 (NSW).
- Offending that targets both persons and their access to the justice system, such as attacking the homes of litigants and their lawyers, is treated as carrying a high level of objective seriousness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18, 35, 112, 195, 196, 198, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 53A, 54B
- Criminal Procedure Act 1986 (NSW), ss 20, 27, 166, 168, 268
- Interpretation Act 1987 (NSW), s 34
- Crimes Amendment Act 2007 (NSW), Sch 1
- Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW), Sch 1
Cases:
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Baines v R [2016] NSWCCA 132
- Mundine v R [2017] NSWCCA 97
- Nasser v R [2017] NSWCCA 104
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183
- Mulato v R [2006] NSWCCA 282
- R v Chisari [2006] NSWCCA 19
- Cassidy v R [2012] NSWCCA 68
- Caristo v R [2011] NSWCCA 7
- R v Teremoana (1990) 54 SASR 30