Sampson v R [2010] NSWCCA 119

New South Wales Court of Criminal Appeal

CITATION: Sampson v R [2010] NSWCCA 119

HEARING DATE(S): 21 May 2010

JUDGMENT DATE: 4 June 2010

JUDGMENT OF: James J at 1; Simpson J at 2; Barr AJ at 60

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – property offences – break, enter and steal in company – knowingly deal in the proceeds of crime – other offences - CRIMINAL LAW – appeal against severity of sentence – parity with sentence imposed on co-offender – extent of accumulation of sentences – totality – leave to appeal granted, appeal dismissed

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Act 1900 Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED : R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Shane Sampson (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/10982

COUNSEL: P Johnson (Applicant) F Veltro (Respondent)

SOLICITORS: O'Brien Solicitors (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/10982

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 9 March 2009

IN THE COURT OF CRIMINAL APPEAL 2008/10982

JAMES J SIMPSON J BARR AJ

4 June 2010 Shane SAMPSON v R Judgment 1 JAMES J: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Sides in the District Court on 9 March 2009, following his pleas of guilty to five counts of aggravated break, enter and commit a serious indictable offence, and one count of knowingly dealing in the proceeds of crime. In each of the break and enter offences the serious indictable offence was stealing. In four of those offences, the circumstance of aggravation was that it was committed in company; in the fifth, the circumstance of aggravation was that it was committed in premises in which he knew people were present. Pursuant to s 112(2) of the Crimes Act 1900, each of those offences carried a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 5 years is prescribed. 3 The sixth offence, commonly known as money laundering, carries a maximum penalty of imprisonment for 20 years. No standard non-parole period is prescribed. 4 In addition, the applicant asked, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, that four further offences of dealing with property suspected of being the proceeds of crime, one offence of knowingly dealing in the proceeds of crime with intent to conceal, and three further offences of aggravated break, enter and steal, all listed on a Form 1, be taken into account. 5 Also before the Court was a certificate issued pursuant to s 166(1)(b) of the Criminal Procedure Act 1986, identifying five further offences, all of dealing with property suspected of being proceeds of crime. It will be necessary to return to this certificate. Sides DCJ sentenced the applicant individually in respect of each of the six substantive offences. He took the Form 1 offences into account in the sentences he imposed in respect of count 2. 6 On counts 1 and 6 respectively, he imposed sentences of 4½ years and 2½ years, with non-parole periods of 2 years and 1 year and 3 months, each to commence on 22 August 2007. 7 On counts 3, 4 and 5, he imposed sentences of 4½ years with non-parole periods of 2 years; he staggered the commencement dates by accumulating each by 1 year on the sentence previously imposed – that is, the sentence imposed in respect of count 3 commenced on 22 August 2008, one year after those imposed in respect of counts 1 and 6; the sentences in respect of counts 4 and 5 commenced, respectively, on 22 August 2009 and 22 August 2010. On count 2 (bearing in mind that he took into account the eight offences on the Form 1) he imposed a sentence of 7 years with a non-parole period of 3½ years, which, again, he accumulated by one year, specifying a commencement date of 22 August 2011. 8 The total effective sentence was, therefore, of a non-parole period of 7½ years commencing on 22 August 2007 and a balance of term of 3½ years, expiring on 21 August 2018. 9 Thus, the latest of the sentences will expire on 21 August 2018. The earliest date on which the applicant will be eligible for a release on parole is 21 February 2015. 10 His Honour also imposed a wholly subsumed sentence of imprisonment of 12 months, commencing on 22 August 2007 and expiring on 21 August 2008, in respect of one of the offences referred to in the s 166 certificate. He did this after the applicant had admitted his guilt of that offence. The remaining offences listed on that certificate were identical with some of those listed on the Form 1. 11 No complaint is made of the manner in which his Honour dealt with the s 166 certificate. 12 Since it was expressly not contended that any individual sentence was excessive and the grounds of the application are limited to; o an issue of parity with sentences imposed upon a co-offender; and o the extent of the accumulation of sentences, and thus totality,