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6
Court of Criminal Appeal 18 August 2023

Flick v R

[2023] NSWCCA 197

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEAL AGAINST SENTENCE ASSOCIATED LARCENY OFFENCES CUSTODIAL OFFENCES IN COMPANY USE OR THREATEN TO USE WEAPON

Citation: Flick v R [2023] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 18 August 2023
Judge(s): Meagher JA, Wilson J, Sweeney J

Background

The appellant was sentenced in the District Court on 6 December 2021 to an aggregate term of 9 years imprisonment with a non-parole period of 5 years. The sentence covered multiple offences: six aggravated break, enter and steal offences committed over 16 days in November 2019 (shortly after he turned 18 and while subject to conditional liberty), an entering with intent offence, and two further offences committed while on remand at Parklea Correctional Centre in July 2021. Associated motor vehicle theft charges were placed on Form 1 documents to be taken into account on sentence alongside the principal offences.

The November 2019 break and enter offences targeted residential premises in Sydney's inner west. Several involved occupants asleep in their homes; others involved the appellant acting with co-offenders. In each case, car keys were stolen from the premises and luxury vehicles were then taken from the driveways.

The appellant filed a notice of appeal out of time in February 2023, seeking an extension of time and leave to appeal against the sentences imposed.

  • Whether the sentencing judge erroneously took into account statutory aggravating factors contrary to the principle in The Queen v De Simoni (that is, using factors that would elevate an offence to a more serious category as aggravating features of the lesser charge)
  • Whether the sentencing judge erred by treating the Form 1 matters as relevant to the objective seriousness of the corresponding principal offences
  • Whether the sentencing judge erred by failing to make a reduction for the impact of COVID-19 on conditions in custody
  • Whether the aggregate sentence was manifestly excessive

Decision

Statutory aggravation (Ground 1): The Court of Criminal Appeal found error in the sentencing judge's approach to two of the break and enter charges. For the Shepherd Street offence (persons present), the judge had also referred to the "in company" circumstance, and for the Hay Street offence (in company), the judge had also referenced persons being present. Because those additional circumstances of aggravation each attract a higher maximum penalty under s 105A of the Crimes Act 1900, taking them into account would contravene the De Simoni principle. The Court upheld this ground in part.

Form 1 offences and objective seriousness (Ground 2): The Court confirmed that while Form 1 matters cannot elevate the objective seriousness of a principal offence standing alone, where the Form 1 offence is "inextricably linked" to the principal offence, it is appropriate for the sentencing court to have regard to it. Here, each motor vehicle theft arose directly from the corresponding break and enter, so the Form 1 matters were properly connected to their respective principal offences. This ground largely failed, though the error on Ground 1 required a reduction to the indicative sentences for the Shepherd Street and Hay Street offences.

COVID-19 hardship (Ground 3): The Court rejected this ground. No evidence had been placed before the sentencing judge about the specific impact of COVID-19 conditions on the appellant's custody. A general claim that COVID-19 made custody harder is insufficient: evidence of actual, particularised hardship is required before a court can adjust a sentence on that basis.

Manifest excess (Ground 4): Given the partial success on Ground 1, the Court found the aggregate sentence was marginally excessive and proceeded to re-sentence. The re-sentence was nonetheless described as preserving the "very generous" ratio applied at first instance, with only a modest reduction flowing from the corrected indicative terms for two offences.

Orders Made

  • Time to file the application for leave to appeal extended to 24 February 2023
  • Leave to appeal granted
  • Aggregate sentence of 9 years imprisonment set aside
  • Re-sentenced to an aggregate term of 8 years and 9 months imprisonment, dating from 19 December 2019, with a non-parole period of 4 years and 10 months
  • Indicative sentence for H734/1 (Shepherd Street): 2 years and 3 months imprisonment, NPP 1 year and 7 months (taking the Form 1 motor vehicle theft into account)
  • Indicative sentence for H734/2 (Hay Street): 2 years and 2 months imprisonment, NPP 1 year and 6 months (taking the Form 1 motor vehicle theft into account)
  • Aggregate term to expire 18 September 2028; non-parole period to expire 18 October 2024

Key Takeaways

  • The De Simoni principle remains strictly applied: where a circumstance of aggravation carries a higher maximum penalty, it cannot be used as an additional aggravating feature when sentencing for an offence charged under the lower provision. Using both "persons present" and "in company" aggravation simultaneously fell into this error.
  • Form 1 offences that are inextricably linked to their principal offences may properly inform the sentencing court's assessment of the overall criminality involved, even if they cannot independently elevate the objective seriousness of the principal offence considered in isolation.
  • A bare or general assertion that COVID-19 made custody harder is insufficient to warrant a sentencing reduction. Particularised evidence of the actual effect of pandemic conditions on the individual offender's circumstances must be before the court.
  • In dismissing the COVID-19 ground, the Court reinforced that appellate courts expect concrete, case-specific evidence before accepting submissions about collateral hardship in custody as a mitigating factor.
  • Even where sentencing error is established, the re-sentence may produce only a modest practical reduction if the overall sentence was otherwise proportionate to the totality of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60A(1), 105A, 112(2), 114(1)(d), 154F, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Children (Detention Centres) Act 1987 (NSW)

Cases
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DPP (NSW) v TH [2023] NSWCCA 81
- McKinnon v R [2020] NSWCCA 106
- Ragg v R [2022] NSWCCA 150
- RO v R [2019] NSWCCA 183
- Scott v R [2020] NSWCCA 81
- Singh v R [2021] NSWCCA 96
- Wass v R [2022] NSWCCA 143