Director of Public Prosecutions v Craig Raymond Simmonds
[2019] VSCA 288
•5 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0070
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| CRAIG RAYMOND SIMMONDS | Respondent |
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| JUDGES: | PRIEST, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 December 2019 |
| DATE OF JUDGMENT: | 5 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 288 |
| JUDGMENT APPEALED FROM: | DPP v Simmonds [2019] VCC 288 (Judge Smith) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Aggravated burglary, false imprisonment and other offences – Respondent entered vulnerable victim’s unit disguised and armed with baseball bat – Victim tied up and gagged – Total effective sentence of 12 months’ imprisonment – Whether sentence manifestly inadequate – No significant mitigating factors – Whether residual discretion should be exercised – Appeal allowed – Respondent resentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms D Piekusis QC with Mr T Bourbon | Ms Abbey Hogan, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr A Marshall | Vaccaro Solicitors |
PRIEST JA
BEACH JA
KAYE JA:
An aggravated burglary and false imprisonment
‘BR’, who suffers from schizophrenia and is afflicted by Guillain–Barré syndrome, lived in a unit in Wodonga, close to where the respondent resided. Guillain–Barré syndrome affects the nervous system; and, as a result of having this condition, BR found it difficult to walk without crutches. Craig Simmonds, the respondent to the present appeal, did not know BR, but had seen him on various occasions, and was aware that he was physically disabled.
At about 8.40 pm on 7 April 2018, BR, who lived alone, was watching television in his lounge room when the respondent broke into his unit. Wearing a black balaclava with eye holes cut out as a disguise, and armed with a baseball bat, the respondent removed fly wire from a window and entered the unit (charge 1 — aggravated burglary).[1] He ordered BR to get onto the floor. BR complied, although his condition made that manoeuvre difficult. The respondent ordered BR to put his hands behind his back, and he tied them with thin black rope that he had brought with him.
[1]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
The respondent then removed BR’s wallet from his pocket, and took cash and a credit card (and also stole BR’s mobile telephone, Medicare card, Taxi card and driver’s licence) (charge 2 — theft).[2] He demanded BR’s PIN, and threatened him not to lie about it. The respondent then rifled through BR’s prescription medications. He then removed BR’s shoe laces, tied his feet together and put two socks into BR’s mouth, tying them around the back of his head (charge 3 — false imprisonment).[3] When he eventually departed, the respondent left BR trussed up and helpless on the floor.
[2]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[3]False imprisonment is an offence at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.
A few minutes after the respondent left the unit, BR managed to get his hands free. He untied the socks, but, because the bindings were too tight, he could not untie his feet. BR burned the bindings off with a lighter. He realised that his mobile telephone had been stolen by the respondent. BR was too scared to stay at home and spent the night with his parents.
Having left the unit, at about 9.02 pm the respondent attempted to use the credit card at an ATM, but, after the respondent used the wrong PIN on several occasions, the machine seized the card (charge 4 — attempting to obtain property by deception).[4]
[4]Crimes Act 1958, ss 81 and 321M. By virtue of s 321P, the maximum penalty is 5 years’ imprisonment.
On both 7 and 9 April 2018, the respondent, who was unlicensed, was seen driving in Wodonga (related summary charges 9 and 10 — unlicensed driving).[5] Police executed a search warrant on the respondent’s home on 9 April 2018 and found a plastic bag containing cannabis (charge 5 — possessing a drug of dependence).[6] He was taken into custody and interviewed by police, answering ‘no comment’ to most questions put to him. The following day, 10 April 2018, while in custody at the Wodonga Police Station, the respondent was found in possession of BR’s telephone (related summary charge 1 — detainee possessing thing without authority).[7]
[5]Road Safety Act 1986, s 18(1)(a). The maximum penalty is 10 penalty units or 1 months’ imprisonment.
[6]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(a). The maximum penalty is 5 penalty units.
[7]Corrections (Police Gaols) Regulations 2015, reg 15(4). The maximum penalty is 10 penalty units.
BR was seen by a doctor on 11 April 2018, and was visibly shaken, anxious and emotional when recounting the home invasion. In his victim impact statement (Exhibit C), BR said that he felt ‘really scared and frightened’, and was worried that the respondent was going to hurt him. BR also said that he felt ‘panicked and anxious’, and does not feel safe in his home, especially at night. He is seeing a counsellor for help.
Sentence and appeal
On 22 February 2019, the respondent pleaded guilty in the County Court to the charges referred to above; and, on 8 March 2019, the judge sentenced the respondent to 12 months’ imprisonment on charge 1 (aggravated burglary), this being the base sentence; to two months’ imprisonment on each of charges 2 and 4 (theft and attempting to obtain property by deception); and to six months’ imprisonment on charge 3 (false imprisonment). The respondent was also sentenced to an aggregate of two months’ imprisonment on the two summary charges of unlicensed driving; to pay a fine of $500 on charge 5 (possessing cannabis); and was convicted and discharged on the summary charge of being a detainee possessing a thing without lawful authority. Since no orders for cumulation were made with respect to the sentences of imprisonment, the total effective sentence of imprisonment was 12 months’ imprisonment.[8]
[8]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentence the respondent to a total effective sentence of two years’ imprisonment.
As we have said, the respondent was taken into custody on 9 April 2018. By the time of sentence, the respondent had served 333 days’ pre-sentence detention, which the judge directed be reckoned as already served under the sentence. Somewhat unfortunately — given that we are firmly of the view that the sentence imposed on the respondent was egregiously inadequate and cannot be permitted to stand — the respondent was released from custody on 8 April 2019, having completed the 12 months sentence of imprisonment passed upon him.
By a Notice dated 5 April 2019, the Director of Public Prosecutions appeals against the individual sentences imposed on charges 1 and 3; the orders for total concurrency; and the total effective sentence, on the sole ground that they are manifestly inadequate. The ground is supported by ‘particulars’ which it is unnecessary to reproduce.
In our opinion, the individual sentences on the charges of aggravated burglary and false imprisonment are, as the Director contends, manifestly inadequate, as are the orders for total concurrency and the total effective sentence. The appeal must be allowed and the respondent resentenced to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months, in the manner we will later set out.
The plea
Aged 47 years,[9] the respondent has convictions for possessing cannabis (1993, 2000 and 2005) and amphetamines and an unspecified drug of dependence (1993 and 2013); and for using cannabis and amphetamines (1993 and 2005). Albeit that most are relatively old, he also has convictions for attempted burglary (1994); burglary (1994, 1995 and 1998); theft (1994, 1995, 1998 and 2013); and going equipped to steal (1994). Given his limited criminal history, counsel submitted, the present offending ‘was very much out of character‘.[10]
[9]His date of birth is 12 June 1972.
[10]In the course of the plea, counsel for the respondent quite properly also informed the judge of an assault conviction not disclosed in the filed Criminal Record. There was the following exchange:
HIS HONOUR: ... You’ve given the background and the use of drugs over a long period. Surprisingly few court appearances.
[DEFENCE COUNSEL]: There are a few, Your Honour.
HIS HONOUR: Court convictions.
[DEFENCE COUNSEL]: There are some very old ones from New South Wales, and those are really things that ought to be almost disregarded. And there's nothing really of a violent nature; I think there’s one assault back many, many years ago in New South Wales. And then there’s some minor, relatively minor matters in Victoria. And I think the last time was in 2014. And there’s nothing, as I understand it, nothing subsequent and nothing pending.
So really, in many ways, this was very much out of character, this kind of offending, for Mr Simmonds.
On the plea, counsel for the respondent realistically remarked that he would not be submitting to the sentencing judge that ‘this is in the lower range of aggravated burglaries’. He could say, however, ‘that the sentencing range even for this type of act where false imprisonment is involved, is quite wide’.
Outlining the respondent’s antecedents, counsel told the judge that the respondent’s parents separated when he was aged 12 or 13. He was ‘unwanted’, and was effectively raised by his maternal grandmother and friends of his father (‘who were in fact members of bikie gangs’). Due to behavioural problems, the respondent left school at the start of Year 7. He first gained employment at age 16 in concreting, and has worked in timber mills, tobacco picking and meatworks. For the past 18 years, he has been in a de facto relationship.
Counsel for the respondent informed the judge that a decade ago the respondent suffered a back injury, involving vertebral discs and cracked vertebrae. He suffers chronic pain as a result and is on pain medication, but uses illicit drugs as a form of self-medication. Counsel told the judge that the respondent has a long history of drug use including cannabis and ‘speed’ (amphetamine), but more recently ‘ice’ (methylamphetamine).
During his time in custody, counsel submitted, the respondent has used his time ‘to do the courses and to stay clean‘. The respondent had been put on methadone but, counsel said, ‘he’s stopped taking that now, so now he’s completely drug-free’. Counsel tendered certificates (Exhibit 1) and ‘assay’ results (Exhibit 3) to support those submissions. He also tendered a letter of apology written by the respondent to the victim (Exhibit 2). The respondent’s plan, counsel informed the judge, was to now go to Queensland and work in his brother’s construction business.
Counsel also tendered a report of Mr Michael Crewdson, a clinical and forensic psychologist, dated 8 December 2018 (Exhibit 4), in which Mr Crewdson stated that the respondent’s ‘mental state examination overall was unremarkable and there were no definitive indications of any major psychological illness such as a psychosis or bi-polar disorder’. He stated the respondent’s diagnosis to be methamphetamine and cannabis dependence (currently in controlled remission); diffuse cognitive deficit likely to have directly arisen from that abuse; and dysthymic disorder, best described as a Persistent Depressive Disorder, which ‘is a mood disorder consisting of the same cognitive and physical problems as in depression, with less severe but longer-lasting symptoms’. Mr Crewdson thought that the respondent’s ‘dependence on legitimate and illicit drug effect combined with his general background and personality put him at risk of reoffending in the future even though there are protective issues operating’. Without some ‘consolidation of his circumstances and his attitude’, Mr Crewdson said, the respondent ‘is likely to reoffend, albeit in a minor way and potentially activate the vicious cycle between drug abuse-needs, crime and imprisonment’.
Mr Mathew Staios, a clinical neuropsychologist, in his report dated 21 February 2019 (Exhibit 5), stated that the respondent ‘reported a long-standing polysubstance use history, spanning a period of over two decades’. The respondent started using cannabis at age 13, and was still using three grams daily. He graduated to intravenous amphetamine use at 14 years of age, transitioning to methamphetamine approximately 10 years ago, using two grams daily. Mr Staios said the respondent’s ‘current neuropsychological profile was consistent with premorbid expectations, falling within the Borderline to Low Average range of intellectual functioning’; but if the respondent ‘was to abstain from substance use in the community, improvements in functional skills are likely’.
Counsel submitted that he was seeking a ‘relatively long’ period of parole to maximise the respondent’s prospects (although he also asked that the respondent be assessed for a community correction order). He then submitted:
If I can just summarise the mitigating matters as they are in my submission. There’s early plea, and that was at committal mention, and the matter resolved at committal mention in terms of what the charges are that proceeding; some charges were not proceeding that he originally had been charged with.
He has been remorseful, Your Honour, and that remorse demonstrates itself, Your Honour, in the plea, but also in what he’s been saying to the psychologist, what he’s been saying through me, and of course the letter that he has written to the victim, Your Honour.
The plea has had a utilitarian value, as well as a demonstration of remorse. There has been no trial that the victim didn’t have to be put through the trauma of giving evidence, and of course the state and the court time and resources have been spared the expense of running a trial.
The offending itself, Your Honour, was in something of desperate circumstances. And I’m not taking this as far as to try and make excuses, Your Honour, there is no excuse for this, but the context of the offending was to supplement his self-medication.
The violent offending, Your Honour, in my submission is out of character for this man. He has priors, and he’s had, I think, one previous assault prior, but that was back in New South Wales many years ago, nothing recent. And he has, in my submission, fair prospects of rehabilitation, Your Honour. He has showed, whilst in custody he has shown his bona fides in that area. He has done courses. He has stayed away from drugs. And he has formed a clear out-view on his future.
There are mental health issues. Again, I’m not taking them as far as Verdins, but they are relevant both to his parole and how parole period can be utilised, and also to the general makeup of who [the respondent] is.
The prosecutor submitted ‘that a term of imprisonment is warranted in this case, Your Honour, and my learned friend has effectively conceded that’, prompting discussion of a sentencing case drawn to the judge’s attention by the respondent’s counsel.[11]
[11]See [33] below.
Shortly before adjourning to consider sentence, the judge observed:
[Defence counsel] my current view is that a term of imprisonment is certainly warranted, and with perhaps some parole that would give him a chance to have further treatment under some sort of supervision, someone’s looking over his shoulder, and at present I’m not inclined to pass through the community correction order stage …
As has been seen, however, the judge imposed a ‘straight’ sentence, with no period of parole.
The Director’s submissions
Counsel for the Director submitted in this Court that, by any measure, the respondent’s was a serious example of aggravated burglary. It was, as the judge had observed in the course of the plea, a ‘nasty’ offence against ‘a soft and vulnerable target’. The sentence of 12 months’ imprisonment imposed on charge 1, however, simply does not reflect the seriousness of the offence.
Moreover, the Director’s counsel submitted, the sentence of six months’ imprisonment imposed for false imprisonment is also manifestly inadequate. The respondent ordered his victim to the floor, and tied his hands together, using rope that he had brought with him. The respondent then tied the victim’s feet together, using a knot that was very tight, before putting two socks in the victim’s mouth and tying them around the back of his head. Plainly, the respondent’s possession and use of bindings illustrated the premeditation involved; and the trussing-up of the victim only served to amplify the fear that he was experiencing.
Counsel for the Director submitted that there was nothing about the respondent’s personal circumstances that would have displaced the prominence of just punishment, denunciation and general deterrence as important purposes in sentencing for the offence of aggravated burglary. The sentence imposed demonstrates that these factors cannot have been given due weight.
Further, the Director’s counsel submitted that the order for total concurrency was productive of a total effective sentence that is manifestly inadequate. Counsel submitted that the offence of aggravated burglary is complete once an offender enters the premises as a trespasser while having the requisite intention and accompanied by the particular form (or forms) of aggravation. In this case, having completed that offence, the respondent proceeded to commit three separate and distinct offences, including the very serious false imprisonment. It was necessary for the judge to order some cumulation between the individual sentences so as to reflect this separate serious offending.[12]
[12]Counsel for the Director also submitted that it was inappropriate for the judge to have imposed an aggregate sentence in relation to two summary offences of unlicensed driving. The maximum sentence for the offence is imprisonment for one month. Thus, the aggregate sentence of two months’ imprisonment is the equivalent of imposing one month’s imprisonment on each charge, served cumulatively. See Sentencing Act 1991, s 9(2).
Beyond the fact that the respondent had pleaded guilty at an early stage, had demonstrated some remorse for his offending and had used his time on remand positively, there was, so the Director’s counsel submitted, little mitigating the respondent’s offending. Counsel submitted that Michael Crewdson, clinical and forensic psychologist, found the respondent’s mental state to be ‘unremarkable’, there being no definitive indications of any major psychological illness; and Mathew Staios, clinical neuropsychologist, found that the respondent’s neuropsychological profile fell within the borderline to low average range of intellectual functioning. Importantly, the respondent’s counsel raised no Verdins[13] issues on the plea.
[13]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Further, counsel for the Director submitted, the judge’s finding that the respondent had reasonable prospects of rehabilitation was not open given the respondent’s prior history, the circumstances of the offence and Mr Crewdson’s opinion. A sentence of the kind that was imposed on the respondent could only have fallen within the permissible range of sentencing options for this type of offending if the respondent had particularly powerful mitigating factors to rely upon. There were, however, none. Balancing the respondent’s serious offending against the limited matters in mitigation clearly demonstrates, counsel submitted, that the sentences imposed are so manifestly inadequate as to constitute an error of principle.
The respondent’s submissions
Counsel for the respondent submitted that the sentence imposed was not manifestly inadequate taking into consideration the matters raised on the respondent’s behalf in the course of the plea. In the alternative, counsel for the respondent submitted that if — contrary to his primary submission — the Court concluded that the sentence was manifestly inadequate, the Court should exercise the residual discretion and not intervene.
The respondent’s counsel submitted that the sentencing judge accepted the matters which were put on the plea in mitigation and in support of the respondent’s prospects of rehabilitation, including the respondent’s:
· difficult childhood;
· reasonable work history;
· many years of pain suffered resulting from a significant back injury;
· steady and long-term support from de facto partner of some 18 years;
· limited prior criminal history;
· completion of all community based dispositions imposed in the 1990s;
· early plea of guilty;
· remorse;
· completion of a number of courses in prison;
· becoming drug free within the prison system;
· prospects of obtaining long term work in Queensland with his brother.
Counsel submitted that the judge also took into account the reports of Mr Crewdson and Mr Staios, including that the respondent’s functioning skills were likely to improve if he were to abstain from illicit substances in the community, and that he had expressed remorse. It was contended that the judge made a positive finding that the respondent had reasonable prospects of rehabilitation. Furthermore, so counsel submitted, the sentencing judge properly considered all relevant factors, including the nature and gravity of the offending and its effect upon the victim.
The respondent’s counsel also invoked the residual discretion. This Court, it was submitted, must deal with the respondent according to current circumstances. His continuing rehabilitation in the community should not be disturbed.
Finally, counsel for the respondent contended that the sentencing judge asked the prosecutor specifically whether he had any submission to make on the fact that sentences of imprisonment for aggravated burglary and false imprisonment were ordered to be served concurrently in a sentence passed by another County Court judge,[14] yet the prosecutor made no submission that concurrency was unavailable between sentences for those offences in the respondent’s case.
[14]See DPP v Little [2017] VCC 174.
Discussion
The Director’s contentions that the sentences on each of charge 1, aggravated burglary, and charge 3, false imprisonment, are manifestly inadequate must be upheld.
As has been said many times, manifest inadequacy is a conclusion that does not depend upon the attribution of identified specific error in the reasoning of the sentencing judge — manifest inadequacy is, or is not, plainly apparent.[15] Manifest inadequacy will not be established, however, unless the appellate court is persuaded that the sentence was wholly outside the range of sentencing options available to the sentencing judge had proper weight been given to all relevant circumstances of the offending and the offender.[16]
[15]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J); DPP v Zhuang (2015) 250 A Crim R 282, 296 [41] (Redlich, Priest and Beach JJA) (‘Zhuang’).
[16]DPPv Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA); Zhuang, 295–6 [40]; DPP v Macarthur [2019] VSCA 71, [58]–[60] (Ferguson CJ, Kaye and Weinberg JJA).
In our view, when proper weight is given to the respondent’s offending and his personal circumstances, the conclusion is inescapable that the sentences imposed on charges 1 and 3 are manifestly inadequate. The respondent’s cowardly crimes were premeditated and despicable. He broke into the victim’s home, where the victim was entitled to feel safe, and subjected him to a terrifying ordeal. Before doing so, he disguised himself, armed himself with a baseball bat and equipped himself with rope. He well knew that his victim was physically disabled and vulnerable. Nonetheless, he callously subjected the victim to a frightening and humiliating ordeal, in which he bound the victim’s hands (with the rope brought for that purpose), tied the victim’s feet tightly with his own shoelaces and stuffed socks into his mouth as a gag to stop him summoning help. He then left the victim bound and helpless on the floor while he made his escape. Quite plainly, the aggravated burglary and false imprisonment committed by the respondent were serious examples of what are serious offences, the seriousness with which they are regarded being reflected by the prescribed maximum penalties.[17]
[17]See n 1 and n 3 above.
There was, however, not a great deal going in mitigation. The plea of guilty was entered early, and the judge accepted that the respondent had shown ‘some remorse’ for his conduct. The respondent had endured a troubled childhood, and had been habituated to illicit drugs for more than three decades. Whilst in custody, however, the respondent had ceased using drugs; and, so the judge thought, he had ‘reasonable prospects for rehabilitation’.
Giving all of those matters proper weight, however, we consider that they could not have justified the sentences imposed on the respondent for the aggravated burglary and false imprisonment. The offending was simply too serious. Hence, although we acknowledge that in his sentencing remarks the judge recited the applicable principles, something has gone awry in the judge’s synthesis of the circumstances of the offending and the respondent, including the aggravating and mitigating features. Denunciation, just punishment and general deterrence cannot have been given adequate weight.
For these reasons, the appeal must be allowed and the respondent must be resentenced.
It is no easy thing to send the respondent back to prison. Indeed, were the matter more finely balanced, the fact that the respondent was released in April might have been determinative in the application of the residual discretion. The sentence that is appropriate for the respondent’s offending is, however, too far removed from that imposed by the sentencing judge to permit the application of the residual discretion on that account. Although a finding that the sentence is manifestly inadequate might go some way towards vindicating the appeal and correcting error for future cases, in view of the objective gravity of the offending it would not be appropriate to exercise the residual discretion so as to leave the impugned sentence undisturbed.[18]
[18]See DPP v Hodgson [2019] VSCA 49, [113] (Kaye, Niall and Weinberg JJA).
Acknowledging that s 290(3) of the Criminal Procedure Act 2009 dictates that, upon allowing the Director’s appeal, this Court ‘must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate’, this Court must nevertheless resentence the respondent according to present circumstances, not according to the circumstances that presented themselves to the sentencing judge.[19] In that regard, it is proper to take into account in his favour that the respondent apparently completed his sentence without incident, and without relapse into drug use. Indeed, the successful completion of the sentence first imposed requires this Court, in the proper exercise of the discretion when resentencing, to impose a significantly lower sentence than otherwise should have been imposed by the judge at first instance.
[19]Kentwell v The Queen (2014) 252 CLR 601, 618-9 [43] (French CJ, Hayne, Bell and Keane JJ).
Moreover, on the appeal, the Court received an affidavit from the respondent’s solicitor, Ms Annette Fassioms, affirmed on 4 December 2019, which demonstrates that the respondent has been both offence and drug free since his release from custody, and has taken positive and constructive steps towards his rehabilitation. These additional factors are also powerful and compelling reasons for imposing a significantly lower sentence than would otherwise have been appropriate.
Taking the foregoing into account, we would sentence the respondent on charge 1 to four years’ imprisonment, and on charge 3 to three years’ imprisonment. The sentence on charge 1 should be the base sentence. We would order that six months of the sentence on charge 3 be served cumulatively with the sentence on charge 1, thus producing a total effective sentence of four years and six months’ imprisonment. All other sentences and orders made by the County Court should be confirmed.[20] Further, we would order that the respondent serve a period of two years and six months’ imprisonment before being considered eligible for release on parole. Once calculated, we would declare a period of pre-sentence detention which will incorporate the period of 12 months that the respondent has already served.
[20]By virtue of s 16(1) of the Sentencing Act 1991, the sentences of imprisonment on charges 2 and 4, and on the summary charges of unlicensed driving, will be served concurrently.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the respondent’s guilty pleas, we would have sentenced him to a total effective sentence of seven years’ imprisonment, with a non-parole period of five years.
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