Citation: Simpson v R [2019] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 28 June 2019
Judges: Leeming JA, Davies J, Button J
Background
The applicant pleaded guilty in the Burwood Local Court to three offences arising from events in August 2016: breaking, entering and stealing from a first-floor apartment in Strathfield; taking and driving the occupants' Volkswagen Golf without consent; and disposing of stolen property by pawning jewellery belonging to third parties at two pawnbrokers in Sydney. The applicant was readily identified because he had dropped his mobile phone at the scene and used his own photo identification when pawning the goods.
The matter was committed to the District Court for sentencing. On 15 June 2018, Judge Wilson SC imposed an aggregate sentence of four years and six months' imprisonment with a non-parole period of three years and one month, after applying a 25% discount for the applicant's early guilty pleas.
The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentence was manifestly excessive, and that the sentencing judge had incorrectly assessed the objective seriousness of the three offences.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the break, enter and steal offence, the take and drive offence, and the dispose of stolen property offence
- Whether the sentencing judge's finding that all three offences fell at or near the mid-range of objective seriousness was open on the agreed facts, given that both parties had submitted the offences fell at the lower end
- Whether any such error was material to the sentence imposed, warranting resentencing
Decision
The Court of Criminal Appeal upheld ground 2, finding that the sentencing judge had erred in his assessment of objective seriousness. Both the defence and the Crown had submitted at sentencing that the offending fell towards the lower end of the range. The sentencing judge placed all three offences at or around the mid-range without providing any explanation for departing from the parties' agreed position. The Court held that this unexplained departure constituted error, particularly given that the facts were straightforward and undisputed.
The Court also identified a further error in the sentencing judge's reasoning on the dispose of stolen property charge. The sentencing judge had assessed mid-range seriousness partly by reference to the ceiling of the offence under section 189 of the Crimes Act 1900 (NSW), being property valued at $5,000 or less. This approach mischaracterised the ambit of section 189, which in fact covers a broader range of conduct. The error led to an inflated assessment of where the applicant's conduct sat within the range of cases covered by that provision.
The Court found the error was not immaterial and that resentencing was warranted. On resentencing, the Court assessed all three offences as falling in the low range of objective seriousness. The Court took into account the applicant's extensive criminal history, the high likelihood of reoffending, and the need for specific deterrence. However, the Court also noted that evidence placed before it on resentencing suggested the applicant's rehabilitation prospects had improved since the original sentencing, given his completion of programs including the EQUIPS Addiction Program and his continued participation in Narcotics Anonymous and the methadone program. Special circumstances were found to exist, justifying an extended period on parole to reduce the risk of institutionalisation and to support supervision in the community.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed by Judge Wilson SC on 15 June 2018 quashed
- Applicant resentenced to an aggregate term of four years' imprisonment commencing 28 October 2016 and expiring 27 October 2020, with a non-parole period of two years and eight months expiring 27 June 2019
- Indicative sentences: sequence 2 (take and drive), one year nine months; sequence 3 (break, enter and steal), two years six months; sequence 14 (dispose of stolen property), six months
Key Takeaways
- A sentencing judge who departs from an agreed position on objective seriousness put forward by both the Crown and the defence must provide reasons for that departure; an unexplained finding at a higher level of seriousness constitutes error.
- Under section 189 of the Crimes Act 1900 (NSW), the offence of disposing of stolen property covers a wide range of conduct; assessing a particular offence's seriousness by reference only to the section's monetary ceiling without accounting for the full scope of that range risks an inflated assessment.
- Where an error in assessing objective seriousness is established, the Court of Criminal Appeal will consider whether the error was material to the outcome; if it was, resentencing is warranted rather than merely a reduction of the original sentence.
- Fresh evidence of rehabilitation progress, presented by way of affidavit for the purposes of a resentencing hearing, can influence the Court's assessment of prospects for rehabilitation, even where the original sentencing judge had found rehabilitation was not entirely out of the question.
- A finding of special circumstances (justifying a non-parole period that departs from the statutory ratio) may be supported by a high risk of institutionalisation and the need for extended post-release supervision, particularly for an offender with an extensive custodial history.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(1)(a), 154A(1)(a), 189
Cases
- Mulato v R [2006] NSWCCA 282
- Re Attorney-General's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435
- TM v R [2018] NSWCCA 88