Simpson v R [2019] NSWCCA 137

Court of Criminal Appeal Supreme Court New South Wales 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 Parties: Gordon Simpson (Applicant) Crown (Respondent) Representation: Counsel: E Anderson (Applicant) B Hatfield (Respondent)