By Seppy Pour
On 2 August 2017, the NSWCCA handed down its decision in Issa v R  NSWCCA 188. The case considered, inter alia, a rather unusual application of the De Simoni principle.
The appellant was found guilty of five counts of intentionally damaging property by means of fire and five counts of doing an act with intent to pervert the course of justice. During the course of the trial, the appellant also pleaded guilty to one count of recklessly cause grievous bodily harm in company. Zahra DCJ imposed an aggregate sentence of 12 years with a non-parole period of 9 years. In coming to his determination, his Honour took into account the fact that the damage to properties by fire harboured the possibility of injury to others in the vicinity of the properties.
The grounds of appeal
Leave to appeal was sought on the following grounds:
(1) The sentencing judge erred in his assessment of the individual components of the aggregate sentence.
(2) The sentencing judge erred in treating the offences as being aggravated.
(3) The sentencing judge erred in his assessment of the objective gravity involved in count 13.
(4) The sentencing judge erred in breaching the rule in De Simoni.
(5) The sentencing judge erred in failing to find special circumstances.
(6) The sentence was manifestly excessive.
Ground (4) is the subject of the following discussion.
The De Simoni principle, named after The Queen v De Simoni (1981) 147 CLR 383 [which you can also read about in an earlier blog post], is that a sentencing judge cannot take into account as a circumstance of aggravation a factor that would give rise to an element of a more serious offence than the one for which the offender is being sentenced.
In this case, the appellant contended that taking into account the possibility of harm or injury to others violated the De Simoni principle because the possibility of injury to others, if added as an element, would give rise to more serious offences under the Crimes Act 1900 (NSW) ss 196 and 198.
The offences under those sections read:
196 Destroying or damaging property with intent to injure a person
(1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable:
(a) to imprisonment for 7 years, or
(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.
198 Destroying or damaging property with intention of endangering life
A person who destroys or damages property, intending by the destruction or damage to endanger the life of another, is liable to imprisonment for 25 years.
The elements of an offence against ss 196(1)(a) and 198 are:
- The accused damaged property;
- the accused did so intentionally or recklessly; and
- when the accused damaged property, he intended to cause bodily injury to another person/endanger the life of another.
The mental element in respect of the damaging property actus is satisfied either by intention or recklessness. However, in respect of the consequences arising, i.e. bodily injury and endangering life, respectively, the Crown must prove intention; recklessness is not sufficient.
Accordingly, Adamson J held at  (Hoeben CJ at CL and Bellew J agreeing):
Thus, if the applicant, as his Honour found, foresaw the possibility of injury to others when he intentionally or recklessly damaged property, this mental element would not be sufficient for an offence under ss 196 or 198, since an intention to bring about the consequences is required. The mental states which were taken into account as matters of aggravation: “without regard for public safety” and foresight of the possibility of harm to a person in the premises (common law aggravation) fell short of the mental elements of an offence under ss 196 or 198. In these circumstances there has been no infringement of the De Simoni principle.
Put simply, for the De Simoni principle to be infringed in this case, the sentencing judge would have needed to take into account intention to harm a person(s) in the premises as an aggravating factor. This did not occur; simply the offender’s recklessness as to harm occurring to a person(s) in the premises was taken into account.
De Simoni principle was not violated; all other grounds were dismissed.
Implications for practitioners
The circumstances in Issa demonstrate how an aggravating factor can be technically shy of giving rise to a more serious offence. Accordingly, it is important to be aware of the potential for such a factor to be raised and the influence said factor can have in calculating a sentence.
As Adamson J noted at - (when citing with general approval the South Australian decision of R v Teremoana (1990) 54 SASR 30), in order to determine whether the De Simoni principle has been breached in similar circumstances, one must:
- Identify the matters of alleged aggravation (whether at common law or in statute); and
- Identify any ‘more serious offence’ to ascertain whether any of the circumstances of aggravation in the subject offence would amount to elements of the more serious offence. If they would not, then they may be taken into account and not offend De Simoni (at ).