Citation: Vickers v R [2020] NSWCCA 297
Court: Court of Criminal Appeal, NSW
Date: 13 November 2020
Judge(s): Gleeson JA, Price J, Wright J (judgment by Wright J, with whom the others agreed)
Background
The appellant pleaded guilty in the Local Court to 13 of 14 charges and later pleaded guilty to the remaining charge (possessing a shortened firearm without authority) in the District Court. The 14 offences spanned several years and included publishing false or misleading material to obtain a financial advantage, doing an act with intent to pervert the course of justice, supplying a prohibited drug, dealing with proceeds of crime, possessing a shortened firearm and ammunition without authority, driving while disqualified on two occasions, destroying property, and possessing a prohibited weapon.
At sentence in the District Court at Gosford, Bright DCJ imposed an aggregate sentence of seven years' imprisonment with a non-parole period of four years, backdated to 19 May 2018. The indicative sentence for the perverting the course of justice offence was three years, and the judge recorded the maximum penalty for one of the driving-while-disqualified offences as two years when the correct maximum was 12 months.
The appellant sought leave to appeal to the Court of Criminal Appeal, challenging the objective seriousness assessment for the perverting the course of justice offence, the misstatement of the maximum penalty for one driving offence, and the overall sentence as manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in placing the perverting the course of justice offence in the mid-range of objective seriousness
- Whether the sentencing judge's misstatement of the maximum penalty for one driving-while-disqualified offence materially affected the aggregate sentence
- Whether the aggregate sentence of seven years' imprisonment was manifestly excessive
Decision
The Court rejected the first ground of appeal. Wright J found that the perverting the course of justice offence involved the appellant impersonating another person in court proceedings over an extended period, which justified a mid-range assessment of objective seriousness. No error in that assessment was established.
On the second ground, Wright J accepted that the sentencing judge had incorrectly stated the maximum penalty for the driving-while-disqualified offence committed on 21 October 2017, recording it as two years when the correct maximum was 12 months. However, the Court found this misstatement had no material impact on the aggregate sentence. The indicative sentence of one year for that offence remained within the correct maximum, and the aggregate sentence was not affected.
On manifest excess, the Court considered the totality of the criminality across all offences, the appellant's personal circumstances (including mental health issues identified by the sentencing judge), the principle of totality, and the degree of concurrency already built into the sentence. Wright J concluded the aggregate sentence was well within the range available to the sentencing judge and could not be said to be unreasonable or plainly unjust.
The Court also addressed the comparative sentencing cases relied upon by the appellant. Wright J noted that while consistency in sentencing is an appropriate goal, the cases cited were diverse in the nature of the offending and none bore significant similarity to the present facts, meaning no unifying principles could be derived from them that would support a finding of manifest excess.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- No error was established in assessing a perverting the course of justice offence as mid-range in objective seriousness where the conduct involved sustained impersonation in court proceedings over an extended period.
- A sentencing judge's misstatement of a statutory maximum penalty does not automatically vitiate a sentence; the Court of Criminal Appeal examined whether the error had any material impact on the aggregate sentence before concluding it did not.
- In dismissing the manifest excess ground, the Court confirmed that the total criminality of multiple offences, the offender's personal circumstances, and the application of totality principles are all relevant to whether an aggregate sentence falls within an available range.
- Comparative sentencing cases are a useful tool for consistency only where unifying principles can be identified; a diverse spread of cases covering dissimilar offending will not, of itself, demonstrate that a sentence is excessive.
- Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999 (NSW), indicative sentences for individual offences remain a meaningful reference point for appellate review, even where the overall sentence is assessed globally.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 192G(b), 193B(2), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 62(1)(b), 65(3)
- Road Transport Act 2013 (NSW), ss 52(1)(a), 54(1)(a)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases
- House v The King (1936) 55 CLR 499
- Wong v The Queen (2001) 207 CLR 584
- Muldrock v The Queen (2011) 244 CLR 120
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v The Queen (2014) 252 CLR 601
- Moodie v R [2020] NSWCCA 160
- PO v R [2020] NSWCCA 129
- Obeid v R (2017) 96 NSWLR 155
- Lees v R [2019] NSWCCA 65
- Kerr v R [2016] NSWCCA 218
- Bidgood v R [2016] NSWCCA 138
- R v Lachlan [2015] NSWCCA 178
- Andreata v R [2015] NSWCCA 239
- JM v R [2014] NSWCCA 297
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Finnie v Regina [2007] NSWCCA 38
- Mulato v R [2006] NSWCCA 282