Simpson v R - [2019] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Simpson v R [2019] NSWCCA 137
Hearing dates: 14 June 2019
Date of orders: 28 June 2019
Decision date: 28 June 2019
Before: Leeming JA at [1]
Davies J at [2]
Button J at [53]
Decision:
(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed by Judge Wilson SC in the District Court on 15 June 2018.
(4) In lieu, sentence the appellant to an aggregate sentence 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.
Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to three charges – take and drive vehicle without consent of owner – break enter and steal – dispose of stolen property – where the applicant scaled a unit complex and forcibly entered a first floor apartment – apartment was ransacked and car keys stolen – applicant entered the occupant’s car and drove it towards his home – the applicant subsequently pawned a number of items which belonged to persons other than the owners of the apartment – applicant readily apprehended as he had dropped his mobile phone in the apartment – applicant also used his own photo identification and address when pawning the goods – sentenced to aggregate sentence of 4 years 6 months’ imprisonment with non-parole period of 3 years 1 month – 25% discount given for early plea – whether the sentencing judge erred in his assessment of the objective seriousness of the offending – where the sentencing judge found that all three offences fell within the mid-range or just below it – where trial counsel and the Crown had agreed that the objective seriousness of the offending was towards the lower end of the range – where sentencing judge gave no explanation for his finding of objective seriousness in the face of the parties’ submissions to the contrary – undisputed facts indicated objective seriousness at the lower end of the range – sentencing judge also incorrectly interpreted the ambit of offences falling under s 189 Crimes Act 1900 (NSW) – error not immaterial – ground made out – resentencing warranted – all three offences deemed to be in the low range of objective seriousness – consideration given to applicant’s extensive criminal history – improved prospects of rehabilitation since being sentenced – high likelihood of reoffending – special circumstances found to exist – applicant resentenced to an aggregate sentence of 4 years’ imprisonment with non-parole period of 2 years and 8 months
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: 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
Texts Cited: Nil
Category: Principal judgment

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simpson v R

Details

AGLC: Simpson v The Queen [2019] NSWCCA 137
Case: [2019] NSWCCA 137
Decision Date: 28 June 2019

CaseChat Overview and Summary

Simpson, the appellant, pleaded guilty to three charges of taking and driving a vehicle without consent, breaking and entering to steal, and disposing of stolen property. The appellant climbed a unit complex, entered a first-floor apartment without permission, and stole car keys. The appellant then drove the stolen car to their home and later pawned items stolen from the apartment. The appellant was caught after leaving their mobile phone at the crime scene. The sentencing judge imposed an aggregate sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years and 1 month, with a 25% discount for an early guilty plea. The appellant appealed the sentence, arguing that the sentencing judge had erred in assessing the objective seriousness of the offending and in interpreting the scope of offences under s 189 of the Crimes Act 1900 (NSW).

The primary legal issue was whether the sentencing judge had erred in assessing the objective seriousness of the offending. The appellant contended that the sentencing judge’s assessment was incorrect, particularly since both the trial counsel and the Crown had agreed that the objective seriousness was towards the lower end of the range. The appellant further argued that the sentencing judge had misinterpreted the scope of offences under s 189 of the Crimes Act 1900 (NSW). The court examined the sentencing judge’s reasoning and found that the assessment of objective seriousness was flawed, as the undisputed facts pointed to a lower level of seriousness. The court also noted that the sentencing judge had not provided adequate reasons for their assessment, contrary to the submissions made by the trial counsel and the Crown.

The Court of Appeal concluded that the sentencing judge had indeed erred in assessing the objective seriousness of the offending. The Court found that the correct assessment should have placed the offending in the low range, considering the parties' submissions and the undisputed facts. Additionally, the Court determined that the sentencing judge had misinterpreted the scope of offences under s 189 of the Crimes Act 1900 (NSW). Given these errors, the Court held that resentencing was warranted. After reassessing the objective seriousness and considering the appellant's extensive criminal history, improved prospects of rehabilitation, and high likelihood of reoffending, the Court of Appeal resentenced the appellant to an aggregate sentence of 4 years’ imprisonment with a non-parole period of 2 years and 8 months.

Orders