The Court of Criminal Appeal has allowed an appeal brought by Mr Simpson against his sentence for one offence of take and drive vehicle without consent, one offence of break, enter and steal and one offence of dispose of stolen property (Simpson v R [2019] NSWCCA 137, Leeming JA, Davies J, Button J). The penalties for these offences consisted of terms of imprisonment with the maximum term being 14 years. After pleading guilty to all three offences, Mr Simpson was sentenced by Wilson SC DCJ on 15 June 2018 to an aggregate sentence of imprisonment for 4 years and 6 months with a non-parole period of 3 years and 1 month. This sentence included a 25% discount for his early guilty plea.

The 2 issues on appeal were whether the sentencing judge erred in his assessment of the objective seriousness of the offences and whether the sentence imposed was manifestly excessive. First, it was submitted that the sentencing judge erred in his assessment of the offending conduct as falling at, or slightly below, the mid-range of objective seriousness. Counsel for Mr Simpson drew particular attention to the undisputed facts of the offending, which were said to support a finding of low objective seriousness. For the break and enter offence, emphasis was placed on the lack of planning or organisation, the limited damage to the apartment and the absence of vulnerability on the part of the occupants. For the take and drive offence, it was said that there was no suggestion of damage to the vehicle or any particular unlawful manner of driving on the part of Mr Simpson. Counsel for Mr Simpson also pointed to what was said to be an agreement between the parties upon sentencing that the offending conduct was towards the lower end of the range and the sentencing judge’s misconstruction of the legislation governing the dispose of stolen property offence.

The Court held that, while a sentencing judge’s assessment of objective seriousness will not lightly be interfered with, intervention was warranted in this case. The Court held that, in light of the submissions from the parties at sentencing as to objective gravity, and given his Honour’s failure to provide an adequate explanation for the view at which he arrived, the sentencing judge had erred in his assessment of objective seriousness. The Court also held that the sentencing judge’s misconstruction of the legislative provision relevant to the third offence was not an immaterial error. As error was shown in relation to the sentencing judge’s assessment of objective seriousness, resentencing was warranted and it was not strictly necessary to deal with the second issue on appeal. In terms of resentence, the Court found that the objective seriousness of all three offences fell at the lower end of the range. The Court also noted that there were improved prospects of rehabilitation since the time Mr Simpson was originally sentenced in 2018. Mr Simpson was resentenced to an aggregate sentence of imprisonment for 4 years with a non-parole period of 2 years and 8 months.

Interesting to see how important it is to really knuckle out the facts in your submissions for sentencing. I have underlined some considerations for sentencing that I recognised from the Sentencing Act, however probably more for my purposes more than anything.