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Court of Criminal Appeal 13 February 2019

Toksoz v R

[2019] NSWCCA 10

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL APPLICATION FOR LEAVE TO APPEAL

Citation: Toksoz v R [2019] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 13 February 2019
Judges: Hoeben CJ at CL, Bellew J, Campbell J

Background

The applicant pleaded guilty in the District Court to three counts of being an accessory after the fact to serious offences committed by a co-offender known as the Principal Offender. Those underlying offences arose from a violent incident in a Liverpool car park in December 2014, during which the Principal Offender shot and wounded two people during a failed drug transaction. The applicant had driven the Principal Offender to the scene and, after the shootings, assisted him over the following days by receiving, harbouring, maintaining, and assisting him.

The applicant was also dealt with, by certificate, for a further offence of failing to disclose the identity of a driver or passenger under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The District Court sentenced him to an aggregate term of 2 years and 6 months imprisonment with a non-parole period of 18 months. The applicant was subsequently released on bail, having served approximately 11 months.

He sought leave to appeal against sentence in the Court of Criminal Appeal, challenging both the sentencing judge's assessment of objective seriousness and the overall length of the sentence.

  • Whether the sentencing judge erred in assessing the objective seriousness of the accessory offences
  • Whether the aggregate sentence of 2 years and 6 months was manifestly excessive
  • Whether the sentencing judge breached the principle in R v De Simoni by punishing the applicant for conduct that constituted a more serious offence than those for which he was convicted

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds, confirming the sentence as imposed.

On the question of objective seriousness, the Court found no error in the sentencing judge's assessment. The assistance the applicant provided to the Principal Offender after a serious firearms incident involving multiple victims was properly characterised as sitting at a meaningful level of seriousness within the range for accessory offences.

On manifest excess, the Court found the aggregate sentence was within the available range and reflected no appellable error. The maximum penalty for each of the three counts was five years imprisonment, and the sentence imposed was not disproportionate given the circumstances of the offending and the applicant's role.

The De Simoni argument required closer analysis. The applicant contended the sentencing judge impermissibly treated his failure to disclose the Principal Offender's identity to police as amounting to the more serious offence of hindering an investigation under s 315 of the Crimes Act 1900 (NSW). The Court rejected this. Section 315(3) expressly provides that a mere refusal or failure to divulge information does not constitute the s 315 offence. Because the applicant's conduct was precisely that, a refusal to disclose, it fell within the statutory protection. There was accordingly no breach of the De Simoni principle: the sentencing judge had not punished the applicant for conduct constituting a more serious uncharged offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • The sentence imposed by the sentencing judge is confirmed
  • The applicant is to be returned to custody forthwith
  • The applicant to be released at the expiration of his non-parole period on 12 September 2019
  • The applicant's sentence to expire on 12 September 2020

Key Takeaways

  • The De Simoni principle prohibits sentencing a person by reference to conduct that would constitute a more serious offence than that charged. In dismissing this ground, the Court of Criminal Appeal confirmed that the principle is not engaged where the conduct in question is expressly excluded from criminal liability by statute.
  • Under s 315(3) of the Crimes Act 1900 (NSW), a bare refusal or failure to provide information to police does not constitute the offence of hindering an investigation under s 315(1). A sentencing judge may take such conduct into account without breaching De Simoni.
  • Objective seriousness for accessory after the fact offences will reflect the nature and duration of the assistance provided, as well as the seriousness of the underlying principal offending.
  • No error was established in the aggregate sentencing approach adopted by the District Court, reinforcing that an appellate court will not intervene where the sentence falls within the available range.
  • Where an applicant has been released on bail pending a dismissed appeal, the Court of Criminal Appeal may order return to custody to complete the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4), 93G(1)(b), 315, 350
- Criminal Procedure Act 1986 (NSW), s 166
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17(1)

Cases:
- R v De Simoni [1981] 147 CLR 383; [1981] HCA 31
- JM v R [2014] NSWCCA 297
- R v Palu [2002] NSWCCA 381
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 164
- Turkmani v R [2014] NSWCCA 186