Citation: Kingsley v R [2019] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 20 February 2019
Judges: Leeming JA at [1]; McCallum J at [2]; Bellew J at [48]
Background
The applicant pleaded guilty in the District Court to two counts of reckless wounding in company (s 35(3), Crimes Act 1900 (NSW)), which carries a maximum of 10 years imprisonment and a standard non-parole period of 4 years. These were alternative counts on an indictment that originally charged the more serious offence of wounding with intent to cause grievous bodily harm (s 33(1)(a)), which carries a maximum of 25 years. The District Court accepted the pleas in full satisfaction of the indictment.
The offences arose from a violent attack on a victim at his home in June 2015. The applicant, together with two co-offenders, armed with knives, assaulted the victim over an alleged debt. The victim sustained penetrating injuries to his right hand and left foot, including bone fractures, requiring surgery. The applicant was sentenced to an aggregate term of 6 years imprisonment with a non-parole period of 4 years, backdated to 18 August 2015, with a 10% discount for the utilitarian value of the guilty pleas.
The application for leave to appeal was filed out of time, requiring the applicant to also seek an extension of time. The Crown opposed both the extension and the substantive grounds.
Legal Issues
- Whether the sentencing judge breached the De Simoni principle by taking into account bone fractures suffered by the victim, which the applicant contended amounted to grievous bodily harm and would have exposed him to conviction for the more serious s 33(1)(a) offence.
- Whether the objective seriousness of count 2 was assessed on an impermissible basis for the same reason.
- Whether the applicant had a justifiable sense of grievance in comparison with the sentence imposed on co-offender Errington (a parity complaint).
- Whether an extension of time to file the application for leave to appeal should be granted.
Decision
Grounds 1 and 2: The De Simoni principle
The De Simoni principle holds that a sentencing court may take into account all conduct of the offender, including aggravating conduct, but cannot take into account circumstances that would have warranted a conviction for a more serious offence. The applicant argued that the two bone fractures described in the agreed facts constituted grievous bodily harm, and that the sentencing judge impermissibly relied on them.
McCallum J, with whom Leeming JA and Bellew J agreed, accepted for the sake of argument that the fractures amounted to grievous bodily harm, without deciding that question. Her Honour found, however, that the sentencing judge had not in fact relied on the fractures as a basis for finding greater objective seriousness. The judge's remarks focused on the use of a weapon, the nature of the injuries as wounding, and the circumstances of the attack. No De Simoni error was established.
Ground 3: Parity
The sentencing judge imposed the same aggregate sentence on both the applicant and co-offender Errington. The applicant submitted that differences in subjective circumstances (including Errington being on parole at the time, and Errington's significantly worse criminal history) should have produced a lower sentence for the applicant. McCallum J found that the weight given to those subjective factors was a matter for the sentencing judge, who had conducted a careful analysis of each offender's circumstances. Critically, the applicant's sentence was backdated almost a full year earlier than Errington's, a feature McCallum J treated as a relevant component of the sentence for parity purposes. No justifiable sense of grievance was established.
Extension of time
The explanation offered for the late filing was that the filing deadline had been "mis-diarised" after two prior extensions had been granted. McCallum J held that, had the grounds of appeal shown sufficient merit, that explanation would not have been fatal to an extension. Because all three grounds were without merit, the extension of time was refused.
Orders Made
- The application for an extension of the time within which to file a notice of application for leave to appeal was refused.
Key Takeaways
- The De Simoni principle prohibits a sentencing court from taking into account circumstances that would have warranted a conviction for a more serious offence, but it does not prevent the court from considering the full circumstances of the actual offending, including the nature and extent of injuries, provided the reasoning does not cross that line.
- Where a De Simoni ground is raised, the Court of Criminal Appeal will examine the sentencing judge's actual remarks closely to determine whether the impugned material was in fact relied upon, rather than assuming error from the mere presence of that material in the agreed facts.
- For parity purposes, the date from which a sentence is backdated forms part of the overall sentence and is a relevant consideration when comparing sentences imposed on co-offenders.
- In assessing parity, differences in subjective circumstances between co-offenders do not automatically translate into a justifiable sense of grievance; the weight to be given to those differences remains within the sentencing judge's discretion.
- Refusing an extension of time on the basis of insufficient merit remains available even where the applicant bears no personal fault for the delay, as the merits of the proposed grounds are a relevant and potentially decisive consideration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Cases
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305
- R v Bakewell (Court of Criminal Appeal (NSW), 27 June 1996, unrep)
- R v Lardner (Court of Criminal Appeal (NSW), 10 September 1998, unrep)
- R v Overall (1993) 71 A Crim R 170
- Wilkins v R [2009] NSWCCA 222