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Court of Criminal Appeal 14 February 2020

Simmons v R

[2020] NSWCCA 16

Assault & violenceDrugsTheft & property
SENTENCING APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS AGGRAVATING FACTORS ALLEGED MANIFEST EXCESS SENTENCING APPEAL AGAINST SENTENCE

Citation: Simmons v R [2020] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 14 February 2020
Judge(s): Macfarlan JA; Adamson J (principal judgment); Beech-Jones J

Background

The applicant pleaded guilty to seven offences and asked the sentencing judge to take into account a further six offences on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate conviction). All thirteen offences were committed over roughly three weeks in October 2016 and were directly connected to the applicant's drug addiction.

The offending ranged from larceny and property damage to armed robbery of a taxi driver at knifepoint and two aggravated break-and-enters into occupied residential premises. In one instance, the applicant entered a home through a dog door at 6.15am and threatened the occupants with a metal gardening tool. In another, he entered a bedroom where a two-year-old child was sleeping, shouted at the crying child, and stole from multiple family members.

The District Court sentenced the applicant to an aggregate term of ten years' imprisonment with a non-parole period of five years and six months, commencing from the date of arrest. A 25% discount was applied for the guilty pleas. The applicant sought leave to appeal on four grounds, arguing errors in how the sentencing judge assessed objective seriousness and contending the overall sentence was manifestly excessive.

  • Whether the sentencing judge erroneously incorporated the applicant's prior criminal history into his assessment of the objective seriousness of the offences, rather than treating it as a separate subjective aggravating factor.
  • Whether the sentencing judge similarly erred by factoring in the applicant's status on conditional liberty when assessing objective seriousness.
  • Whether the sentencing judge misapplied the principle of proportionality.
  • Whether the aggregate sentence of ten years was manifestly excessive in all the circumstances.

Decision

On grounds one and two, the Court accepted that the sentencing judge's reasons conflated objective and subjective matters, referencing the prior record and conditional liberty under the heading of objective seriousness. However, the Court found the parties' own written submissions to the sentencing judge had contributed to this conflation, as both sides had included subjective matters under that heading. Critically, the Court was satisfied that the sentencing judge did in fact treat these matters as aggravating factors, and that no appealable error in substance had occurred.

On proportionality (ground three), the Court found no demonstrated error. The argument was largely derivative of the other grounds and did not independently disclose a sentencing mistake.

On manifest excess (ground four), the Court rejected the contention. A claim of manifest excess requires the applicant to show the sentence was unreasonable or plainly unjust, not merely that a different result was open. The Court noted that the sum of individual indicative sentences totalled over 21 years, while the aggregate imposed was ten years, reflecting significant concurrency. The non-parole period of five years and six months represented approximately 55% of the total term, a marked departure from the statutory default ratio of 75%, indicating a substantial allowance for special circumstances. The Court was not persuaded the sentence fell outside the range of appropriate outcomes for this pattern of serious and frightening offending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where both prosecution and defence submissions to the sentencing judge conflated objective and subjective sentencing factors under the same heading, the Court of Criminal Appeal was reluctant to characterise the resulting judgment as disclosing appealable error, provided the judge ultimately treated those factors appropriately in substance.
  • A claim of manifest excess requires more than demonstrating that a lesser sentence was available. The applicant must show the sentence imposed was unreasonable or plainly unjust.
  • In dismissing the manifest excess ground, the Court emphasised the significant concurrency already built into the ten-year aggregate, given that the total of individual indicative sentences exceeded 21 years.
  • Sentencing judges imposing aggregate sentences are not required to specify the commencement and expiry dates of individual component sentences, nor to quantify accumulation explicitly.
  • The reduced non-parole ratio of 55% (against the statutory default of 75%) demonstrated that the sentencing judge had made a meaningful allowance for special circumstances, including the applicant's drug addiction and background factors identified under the principles in Bugmy v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 97, 112, 114, 117, 195, 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 33
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Summary Offences Act 1988 (NSW), s 6A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518