Sentencing is a challenging exercise which tests the skills of even the most experienced criminal lawyers, magistrates and judges.
And when courts are too heavy-handed, an appeal may be the best way to set things straight.
An appeal against a sentence that is too harsh is called a ‘severity appeal’.
If you are unhappy with the penalty imposed in the Local Court, you can file a severity appeal to the District Court. That appeal must be filed within 28 days of the Local Court case being finalised, or within 3 months if you get the court’s ‘leave’ (permission) to proceed with the appeal ‘out of time’.
Significantly, the District Court Judge will need to warn you (or your lawyer) before giving a harsher sentence in the District Court. This is called a ‘Parker warning’. Although there is no prescribed form of words to be used, the judge will make it abundantly clear that you are being warned and give you (or your lawyer) an opportunity to seek leave to withdraw the appeal so that you don’t incur a harsher penalty.
There are cases when a particular type of Parker warning may be beneficial to your client, for example when the judge indicates that he or she is prepared to increase the length of the prison sentence imposed in the Local Court but is prepared to then suspend the sentence so that your client isn’t sent to prison at all. However, as a general rule, only a very brave (or very foolish) appellant or lawyer will continue with an appeal after a general Parker warning has been given.
‘Parker warnings’ are a rule developed through case-law, also known as ‘common law’.
There are many other important common law rules that apply in NSW courts.
This post will consider two of the most useful common law rules – the principle against ‘double counting’ and the De Simoni principle.
The principle against double counting
Before the court decides the appropriate penalty for a particular offence in NSW, it determine its objective seriousness by considering any ‘aggravating’ and ‘mitigating’ factors.
Those aggravating and mitigating factors are listed in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Mitigating factors essentially reduce the seriousness of the offence and can result in a lighter penalty.
Examples of mitigating factors include good character (ie lack of criminal record), the fact that you are unlikely to re-offend and good prospects of rehabilitation.
On the flip side, the court must also consider any aggravating factors which make the offence more serious.
Aggravating factors include any actual or threatened use of violence or a weapon, a high degree of planning, a disregard for public safety, the presence of a child, being on conditional liberty at the time (eg on bail or parole) and so on.
However, case-law says that where a particular factor forms an integral part of the offence, it cannot also be considered as an aggravating factor when it comes to sentencing.
The principle is best illustrated using a simple example:
Imagine you rob a service station armed with a gun. You are caught and charged with armed robbery under section 97 of the Crimes Act.
To be found guilty of armed robbery, the prosecution must prove that you were armed with an offensive weapon at the time of the robbery.
However, according to s 21A of the Crimes (Sentencing Procedure) Act, the fact that an offence involved the actual or threatened use of a weapon may also be considered as an aggravating factor when it comes to sentencing.
So what does the judge do?
The principle of double-counting says that since being armed is already an integral part of the offence, the judge is not allowed to consider this factor again as an aggravating feature when it comes to punishing you for the offence.
To do so would mean that you are essentially punished twice for the fact that you were armed with a weapon.
This example illustrates ‘direct’ double counting. But the principle can also apply in a more indirect way:
For example, if you drove in a dangerous manner and ended up tragically killing or causing grievous bodily harm (‘GBH’) to a victim, it can generally be implied that you were also driving without regard for public safety.
It would therefore be considered double counting for the judge to consider the fact that the offence was committed without regard to public safety as an aggravating factor when sentencing you.
This is despite the fact that the prosecution does not have to prove that you drove without regard for public safety in order to establish that you are guilty of the offence.
Indeed, this was the finding in the case of Elyard v R  NSWCCA 43, which gave rise to identical circumstances.
However, the principle against double counting does not prevent the court from considering the nature of the offence itself when determining its seriousness.
The principle in De Simoni
This brings us to a second, but somewhat interrelated sentencing rule – the principle in De Simoni.
Back in 1979, Mr De Simoni broke into the home of an elderly woman.
He struck her over the head with a piece of wood and stole $180 from her.
In a somewhat lucky twist of fate, Mr De Simoni was charged with the offence of robbery, not aggravated robbery, which he pleaded guilty to.
However, the ‘agreed facts’ stated that Mr De Simoni had wounded the elderly lady. This meant that technically, he could have been convicted of the more serious offence of aggravated robbery, which carried a much harsher maximum penalty.
Meanwhile, under the laws of the time (similar to the current section 21A) the wounding was an aggravating feature of the offence for the purpose of sentencing.
Accordingly, the sentencing judge took it upon himself to impose a harsher penalty because of the wounding, despite Mr De Simoni only pleading guilty to the lesser offence.
Mr De Simoni appealed all the way to the High Court, where it was found that the sentencing judge was wrong to consider the wounding as an aggravating factor because Mr De Simoni had not pleaded guilty to aggravated robbery.
It was also held that the judge was wrong to accept the ‘agreed facts’, which suggested that Mr De Simoni should have been charged with aggravated robbery.
So, what does this mean?
De Simoni gives rise to a handy tool that can be used by good defence strategists to benefit their clients on a regular basis.
In practice, it means that if you can persuade the prosecution to accept a plea of guilty to a lesser charge, they must also amend the ‘facts sheet’ to remove any evidence of a more serious offence.
For example, a good criminal lawyer will regularly convince the prosecution to downgrade the charge of “Assault Occasioning Actual Bodily Harm” to “Common Assault”. A busy lawyer will do this at least once per week.
Now if the police ‘facts sheet’ contains any reference to injuries that are more than just ‘transient or trifling’, then using De Simoni, a good defence lawyer will convince the prosecution to delete those parts from the ‘facts’ eg to delete the words ‘causing a black eye’, or ‘causing bruising’, or ‘causing cuts and abrasions’.
This should be done in the lead-up to the sentencing date, but can also occur on the day of sentencing using a ‘pen of truth’ (ie a black permanent marker).
The same applies where a charge of ‘drug supply’ is downgraded to ‘drug possession’, or where ‘high range drink driving’ is reduced to ‘mid’ or ‘low range drink driving’ on the basis of a defence pharmacological report – again, the ‘facts sheet’ cannot suggest the more serious charge.
Amending the ‘facts’ in this way can make the case far less serious and lead to a better result.
This highlights the value of an experienced criminal lawyer, especially one who has specialised in criminal defence for many years and appears in the criminal courts every day.
Furthermore, the De Simoni principle means that a magistrate or judge, when sentencing a person for an offence, is not able to consider an aggravating factor where it forms the basis for a more serious offence.
In practice, this means that only a very brave (or very foolish) prosecutor would hand-up facts that indicate a more serious charge.
At the end of the day, a good working knowledge of principles like ‘Parker warnings’, ‘double counting’ and ‘De Simoni’ can make a great deal of difference when it comes to getting the best result for your client.