Regina v Timmis

the application for leave to appeal 35 Two grounds of appeal were advanced on behalf of the applicant. The first concerned the manner in which the sentencing judge approached the task of sentencing, taking into account the Form 1 offences. By the second the applicant asserts that the sentence was manifestly excessive and failed properly to reflect a subjective case presented on behalf of the applicant.

Crimes (Sentencing Procedure) Act 1999 , Part 3 Division 3 36 The procedure by which a sentencing judge may take into account offences admitted by an offender, but not specifically charged (and of which the offender is therefore not convicted) appears now in Part 3, Division 3 of the Sentencing Procedure Act. That division replaces earlier statutory provisions to similar effect (see Criminal Procedure Act 1986 and Crimes Act 1900, s447B). It is unnecessary to have further regard to the predecessors of the Sentencing Procedure Act. 37 The relevant provisions of Part 3 Division 3 are as follows: "s32(1) In any proceedings for an offence (the "principal offence" ), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. … S33(2) The court may take a further offence into account in dealing with the offender for the principal offence: (a) if the offender: (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account." 38 The proper approach to sentencing where additional offences are to be taken into account has been comprehensively stated by this court in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 581, unreported, 20 December 2002 ("the guideline judgment"). Unfortunately, this decision was not available to the sentencing judge, it having been delivered six months after he imposed sentence. That judgment resolved a difference of opinion that had emerged among some judges of this court concerning the proper application of the Part 3 Division 3 procedure. The Chief Justice, with whom Wood CJ at CL, Grove, Sully and James JJ agreed, described the competing approaches to this issue of sentencing practice as a "bottom up" approach, and "a top down" approach, and held that the former rather than the latter is the correct sentencing methodology. His Honour identified the "top down" approach as one which identifies an appropriate penalty for the full gamut of offences and is then discounted by reason of the use of the Part 3 Division 3 procedure. 39 At [39] his Honour wrote: "The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure . This is not sentencing for the principal offence." (emphasis added) 40 It is of significance that the "discount" to which the Chief Justice there referred was a discount for the use of the Part 3 Division 3 procedure. His Honour was not referring to the application of a discount for any other purpose. 41 By the "bottom up" approach, the Chief Justice was referring to a sentencing approach involving the fixing of the term of the sentence for the principal offences, with an increase to accommodate the matters on the Form 1. His Honour also considered (para [44]) that it would rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. 42 Counsel for the applicant has argued that the sentencing judge applied the "top down" approach. The principal basis of this contention appears to lie in that part of the remarks on sentence in which his Honour, having quantified the extensions of the sentence to be imposed in relation to the accessory charge by reason of the Form 1 offences, then reduced that additional term to a very significant extent - from forty-two months to eighteen months - to comply with totality principles. (The maximum sentence applicable to the accessory charge being imprisonment for five years, had his Honour extended his original sentence by that length he would have been in contravention of s33(3) of the Sentencing Procedure Act.) Apart from that exercise, the exercise undertaken by the sentencing judge was, in my opinion, a classic "bottom up" approach. His Honour identified the appropriate sentence for the principal offence, and then identified the appropriate increment to that sentence by reason of each of the Form 1 offences. He did this in relation to each charge on the indictment, and in relation to each Form 1 offence. 43 The only occasion on which he discounted the sentences was when he reduced the increment - not because the exercise was one pursuant to Part 3, Division 3, but for a completely independent reason, the application of totality principles. In my opinion, it is quite wrong to characterise what his Honour did as applying the "top down" approach. Anticipating the guideline judgment, his Honour applied a classic "bottom up" approach. The error asserted has not been established. Counsel for the applicant argued that the fact that, before the discount attributed to the totality principle, the aggregate of the sentences prescribed would have exceeded the maximum sentence applicable to the accessory charge; and that supports the contention that error infected the process. 44 Although it may be thought that the sentencing judge transgressed in relation to that aspect of the guideline judgment which counsels against the quantification of the increment to the sentence, no point on the application in this respect was taken. In any event (and recognising that this court has not heard argument on this question) this does not appear to me to constitute an error in the sentencing process, at least so long as the sentencing judge keeps steadily in mind that the end result of the process is appropriate sentence for the principal offence, albeit one augmented by reason of the matters in Form 1. There is no suggestion that the sentencing judge did otherwise in this case. 45 I would reject the first ground of the application. 46 By the second ground it was argued on behalf of the applicant that the sentencing judge gave inadequate weight to the applicant's financial and personal circumstances in respect of the first offence and that he took an unduly harsh approach in that the whole course of conduct and the totality of the criminality ought to have been assessed by reference to, or in the context of, a financial crisis that precipitated the offending. A less severe sentence is therefore, on the applicant's argument, warranted and ought to have been imposed (see Criminal Appeal Act 1912 s6). 47 The outline of the applicant's repeated offending above demonstrates that this argument cannot succeed. True it is that the applicant had, for some years, remained free of criminality, and that it was an unusually unfortunate set of personal circumstances that preceded his embarking on his criminal spree. But he committed a number of serious criminal offences, in succession; he was on three occasions granted the privilege of remaining at liberty notwithstanding the charges against him, and he repeatedly breached the conditions on which bail was granted. Counsel argued that the evidence establishes that the applicant has finally been brought to his senses by his final arrest and incarceration, and that his Honour's assessment of the criminality overlooked the evidence of financial difficulties, and the other favourable subjective features. I do not agree. True it is that the applicant's criminal conduct ceased after his fourth arrest. He was then refused bail. The relatively short non-parole period is an additional factor to be taken into account on this issue. The applicant has, in my opinion, failed to demonstrate that the sentences, either individually or in total, were manifestly excessive. I would grant leave to appeal but dismiss the appeal. 48 GREG JAMES, J: I agree with the orders proposed by Simpson, J. and with her reasons. 49 I would add to what her Honour said on ground one that I was originally concerned about certain remarks of the sentencing judge concerning how he proposed to take into account the Form 1 offences. At p.16 of his remarks, his Honour said:- "I must assess the criminality of each matter and determine the appropriate sentence for it. The offences on the Form 1 schedule must be reflected in the sentence imposed. It is not enough to merely pay lip service to those offences. Nonetheless, because of the circumstances of them being taken into account on a schedule an offender is entitled to have an expectation that the extent to which a sentence is extended would be significantly less than had the matter stood alone on indictment." 50 There is a deal of ambiguity in the use of the expression "matter" in this passage. However, whatever the passage may mean, I accept that what his Honour did was to take the Form 1 offences into account in the way that Simpson, J. has set out, so that the sentencing judge's approach accorded with the views expressed in Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518. 51 I note that the appropriateness of applying the totality principle in such an exercise is expressly recognised in the judgment of the Chief Justice, in which the other judges concurred, at paragraph 42. 52 On the second ground of appeal, I would add that the findings of fact and the weight to be accorded to those findings is a matter for the sentencing judge. The court is not empowered under the provisions of the Criminal Appeal Act 1912 and the principles for appellate review to interfere with the primary judge's determination of these matters unless the well-known grounds for setting aside the exercise of the sentencing discretion are made out. 53 For the reasons her Honour gives, no such grounds are here made out.