Director of Public Prosecutions v Simpson
[2020] VCC 431
•15 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01839
Indictment No: J12897649
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALFRED JAMES SIMPSON |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 3 March 2020 | |
DATE OF SENTENCE: | 15 April 2020 | |
CASE MAY BE CITED AS: | DPP v Simpson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 431 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Burglary – Theft – Attempted burglary - Damage property – Armed robbery – Summary offence of commit indictable offence whilst on bail – Lengthy criminal record – Significant ant gap between last previous offending and current offending – Long history of drug and alcohol abuse – Circumstances of social disadvantage during upbringing - Considered mitigatory matter in light of Bugmy - Moral culpability reduced – Possible depression at time of offending – May meet criteria of adjustment disorder with depressed mood – No application of Verdins’ principles
Cases Cited:Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Convicted and sentenced to 5 years and 8 months’ imprisonment with a non-parole period of 3 years’ imprisonment – Pre-sentence detention of 527 days’ imprisonment declared as having already been served – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Goetz | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr D. McGlone | C. Marshall & Associates |
HER HONOUR:
1 Alfred James Simpson, you have pleaded guilty to five charges of burglary, four charges of theft, one charge each of attempted burglary and damaging property, and two charges of armed robbery.
2 In sentencing you, I must have regard to the maximum penalties as these reflect the seriousness with which Parliament regards each of the offences. The maximum penalties are as follows.
3 Burglary, theft and damaging property each have a maximum penalty of 10 years’ imprisonment, while armed robbery has a maximum penalty of 25 years’ imprisonment and attempted burglary has a maximum penalty of five years’ imprisonment.
4 Further, you have pleaded guilty to the summary offence of committing an indictable offence whilst on bail, which has a maximum penalty of three months’ imprisonment.
5 I sentence you on the basis of the Summary of Prosecution Opening which was tendered at the plea hearing.
6 I was told that you were 56 at the time you committed the offences and that you are now 57.
Charges 1 and 2 – burglary and theft
7 In relation to Charges 1 and 2, charges of burglary and theft, I was told that on 2 October 2018, between 7.45 am and 4.15 pm, you attended an address in West Footscray and entered the house through an unlocked front door. Once inside, you ransacked the house, stealing a Sony television, an Xbox gaming console and jewellery.
Charges 3 and 4 – burglary and theft
8 On 3 October 2018, between 8.30 am and 1.30 pm, you forced open the back door of a house in Yarraville. You stole a Sony television, a PlayStation 4 gaming console, video games and jewellery. This gives rise to Charges 3 and 4, burglary and theft.
Charges 5 and 6 – attempted burglary and damaging property
9 In relation to Charge 5 and 6, attempted burglary and damaging property, I was told that on 4 October 2018, at about 10.00 am, you went to the front door of a house in West Footscray. You knocked on the door and rang the doorbell multiple times before using a jemmy bar in a bid to open the front door. This caused damage to the timber door.
10 An occupant inside the address began screaming at you to leave and pressed her personal duress alarm pendant, which then caused you to flee. Investigators obtained CCTV footage from the front-door area of the premises and you could be seen in this.
Charges 7 and 8 – burglary and theft
11
In relation to Charges 7 and 8, burglary and theft, I was told that on
18 October 2018, between 7.30 am and 6.30 pm, you went to yet another address in West Footscray and forced open the rear sliding door. Once inside, you stole a Samsung television, an Apple television console, a pair of Ray-Ban sunglasses, a set of Bose headphones and a Samsung tablet.
Charge 9 – burglary
12 In relation to Charge 9, the charge of burglary, I was told that on that same day, at about 11.00 am, you repeatedly knocked at the front door of a property in Kingsville. The occupant of the property was home, but did not open the door, as he thought the situation was strange. About 10 or 15 minutes later, the knocking started again, so this victim looked through a window from upstairs, but could not see anyone. A few minutes later, he heard a door open and he saw you coming through a sliding door. You were halfway through when the victim asked you if you were alright. You then ran off into the backyard and jumped the fence.
Charges 10 and 11 – burglary and theft
13 In relation to Charges 10 and 11, charges of burglary and theft, I was told that on that same date – that is 18 October 2018 – between 10.15 am and 11.50 am, you went to yet another address in West Footscray and entered the house. You stole two Apple iPods, an Apple MacBook, laptop, a Nikon SLR camera, as well as jewellery.
Charge 12 – armed robbery
14
In relation to Charge 12, a charge of armed robbery, I was told that on
20 October 2018, you attended the Sims Supermarket in Barkly Street, West Footscray. At about 9.56 am, Ms Sila was serving a customer at the front register, when you approached her from behind and pulled her shoulder back. You kept repeating 'move' and 'fucking move out of my way'. You used your body to push Ms Sila aside, and stole $300 from the till. As you ran from the supermarket, another shop attendant, Ms Stevens, tried to grab hold of you. You then produced a large chisel from your left-hip waistband and pointed it at Ms Stevens before pushing her away, and you then continued to run from the store. The incident was captured on CCTV footage.
Charge 13
15 In relation to Charge 13, I was told that on 27 October 2018, you went back to the supermarket and at about 10.07 am and approached Ms Clarke, who was serving a customer at the front register. You forced your way to the register till. Ms Clarke told you that you were not allowed to be there. You reached towards the register till – Ms Clarke said that you could not do this. You then said, 'I just need some money' and shoved Ms Clarke to the side of the counter, taking $250 cash from the till before fleeing. The prosecution opening records that during this incident, Ms Clark was shocked and frightened.
16 Whilst in the supermarket entry foyer, you dropped a chisel in the band of your tracksuit pants. You then ran back into the foyer to collect the chisel, before fleeing in a dark red vehicle. I was told that you were driving this vehicle.
17 Again, the incident was captured on CCTV footage.
18 You were arrested on 5 November 2018 at your home address in Bendigo. Subsequently, you made full admissions in a Record of Interview in relation to each of the charges. In relation to Charge 12, you said that your reason for pointing the chisel towards the second victim in that matter was 'just to get her out of the way'.
19 In relation to the summary offence, you were on bail at the time of committing the armed robbery on 27 October 2018, the subject of Charge 13. I was told that you were on bail for matters, including burglary in Bendigo.
20 Mr Simpson, your offending is most serious and warrants a punishment which is just in all of the circumstances and your conduct must be firmly denounced. In relation to the burglaries, you were prepared to violate the sanctity of the homes of a number of people, taking items that were of value and which have not been recovered. In relation to the armed robberies, you behaved in a most frightening manner on each of the occasions that you offended, committing the offences in broad daylight, and when customers were present. On each of the occasions, the people who you pushed and/or threatened were females who were doing nothing more than trying to earn an honest living. I have little doubt that the victims in respect of each of the offences, especially Charges 6, 9, 12 and 13, have been traumatised by your offending. Although no Victim Impact Statements have been provided, it takes little imagination to make this observation about the impact of your offending upon the victims.
21
You have a significant criminal history which commences in the Children’s Court. Although the prosecution did not seek to rely on this aspect, your counsel did in aid of his submissions about your upbringing. The criminal history relied on by the prosecution commenced in May 1980, where you were dealt with in the New South Wales Court of Petty Sessions for 'stealing'. The penalty was the 'Rising of the Court'. However, in September 1980, you were again dealt with for stealing and received, to quote from the criminal record,
'6 months hard labour'.
22 In June 1981, you were fined a total of $600 for smoking and possessing Indian hemp.
23 In June 1981, you were dealt with in the Lismore District Court, New South Wales, for assault and robbery and aid and abet a robbery whilst armed. You were sentenced to '5 years penal servitude' and '2 years penal servitude', with a non-parole period of two years. I assume that the total effective head sentence was five years in relation to this sentence.
24
In August 1983, you were sentenced to nine months’ penal servitude, cumulative upon other sentences you were undergoing in respect of one charge of escape lawful custody. You continued to commit offences, appearing in New South Wales and Queensland courts from 1986 onwards. Your offending included drug offences, dishonesty offences, offences for violence, and in 1991 you were sentenced to a total effective sentence of
24 months’ imprisonment, with a non-parole period of 18 months for conspiracy to commit armed robbery and receiving 'stolen goods'. Your offending continued with court appearances in 1994, 1995, 1998, 2000, 2001, 2003, 2004 and 2005. Your offending included breaching the Bail Act, a Queensland offence; dishonesty offences; stealing whilst armed with a dangerous weapon and in company; breaking and entering a dwelling house with intent, amongst other dishonesty matters; wilful and unlawful damage; driving offences, including exceeding prescribed concentration of alcohol, and in South Australia, you were dealt with in 2001 for 'non-aggravated serious criminal trespass (place of residence) and larceny'. You were sentenced to
18 months’ imprisonment with a non-parole period of nine months. The sentence was said to be suspended for 12 months upon you entering a bond of $100.
25 On 12 March 2004, you were dealt with in the District Court of South Australia for 27 charges of non-aggravated serious criminal trespass (place of residence); larceny; two charges of aggravated serious criminal trespass – residence not occupied; two charges of unlawful possession; one charge of attempting to damage property; receiving, as well as some offences relating to the use of a motor vehicle. On appeal to the Supreme Court of South Australia, your sentence was reduced, such that you were required to serve nine years’ and six months’ imprisonment, with a non-parole period of five years.
26 On 20 July 2005, you were dealt with for two further charges of non-aggravated serious criminal trespass (place of residence) and one charge of larceny. You were sentenced to four months’ imprisonment, which was cumulative on the sentence imposed by the Supreme Court of South Australia on appeal.
27
Then you managed to behave yourself for a significant number of years, until the offending before me or, more accurately, the offending which saw you plead to a number of dishonesty offences, including burglary and theft, as well as obtain property by deception, in the Melbourne Magistrates’ Court on
1 April this year.
28 Although there is a significant gap in your offending, the current spate which sees you come before me, in view of your criminal history, gives me grave cause for concern in terms of your prospects of rehabilitation.
29 In sentencing you, I take into account your background: Your childhood was an extremely difficult one. You were born in Glasgow, but grew up in Australia after your parents migrated here shortly after you were born. You grew up in the country town of Traralgon.
30
Upon arriving in Australia, your biological parents separated. Your father
re-partnered shortly thereafter with a woman who had two children from a previous relationship. Your mother moved to East St Kilda. Initially, you had monthly access visits with your biological mother, but these visits stopped after a fairly short time, as no one was able to, or prepared to, help you in seeing your mother, who lived so far away. Therefore, your relationship with your mother suffered and you no longer have any contact with her, having last seen her when you were 25 years old.
31 You did not get along with your stepmother or your two stepbrothers. You were subjected to regular physical abuse from each of these people. You no longer have any contact with your stepmother, apart from having received a letter from her in 1987, when she told you of your father’s death.
32 You went to school in Traralgon up to Year 7, but it was at about this time that your circumstances began to significantly deteriorate. You began drinking alcohol and using cannabis, and in your early teens you commenced using barbiturates. By the age of 15 you were living on the streets and using heroin.
33 I was told that you went into State care in about 1973, when you were 11 or 12 years old, and that at some stage you were in foster care. You instructed your counsel that you were subjected to sexual abuse whilst in the care of the Social Welfare Department. I was told that your criminal offending in the past was directed at maintaining your drug addiction.
34
You commenced a relationship with a Ms Doherty when you were in your twenties, which had a positive impact on you. Then, in 1997, you met
Ms King, who, again, had a positive influence on you. You still struggled with your drug and alcohol problems when you were with her initially and never sought professional help. However, ultimately you succeeded in overcoming these difficulties. You travelled to various states with Ms King in a bid to start a new life and ultimately, you broke the back of addiction. You were able to do this with the support of Ms King and after having attended a three-month TAFE course in Whyalla, called 'Goals 100'. After this, you obtained full-time work at a business called One Steel, where you worked for about 10 years, progressing to the position of leading hand. You were able to remain drug free during this period, and it was much to your credit and Ms King’s that you were able to sustain such employment in all of the circumstances.
35
I was told that in 2017 Ms King’s health deteriorated significantly after she suffered a stroke. You and she had moved to Bendigo in order to be closer to friends. However, you received very little support. You tried to secure financial help as Ms King’s carer, but you had lost your birth certificate some time ago and only had an expired South Australian licence to establish your identity. Without proper identification, you could not be registered as
Ms King’s carer and you struggled to cope emotionally as well as financially. You then reverted to abusing illicit substances, and to the criminal offending for which I now sentence you. You committed these offences in order to fund your drug habit, but also to help look after Ms King.
36
Although you have been capable of overcoming the dreadful social disadvantage you suffered through your childhood, with the support of
Ms King, I accept that your circumstances of social disadvantage during your upbringing were such as to be considered a matter in mitigation in the sense contemplated by the High Court decision of Bugmy v R (2013) 249 CLR 571.
37 In assessing the seriousness of the burglary and attempted burglary charges, I have factored in that, in each case, you went to fairly extensive lengths to ensure that no one was home when you entered, or tried to enter, the property in question. On the occasions that you encountered victims, you immediately withdrew. However, in relation to the armed robberies, your preparedness to use a degree of physicality in order to access the till and your preparedness to point a weapon to the second victim in relation to Charge 12, make these more serious examples of armed robbery than might otherwise be the case.
38 I allow for a significant discount in the sentence that you would otherwise receive because of your pleas of guilty, which were entered at an early stage. In taking this course, you have saved the witnesses, especially the victims, the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings. Further, you made full admissions to police in relation to your offending. Your counsel submitted that you were genuinely remorseful about what you had done. I have struggled with this in view of your criminal history and your repeated offending, albeit that you may well have been affected by drugs when you committed the offences. In the circumstances, I make some allowance for remorse but, in my view, you have a good way to go in order to develop heartfelt remorse for the victims of your offending and also to develop appropriate insight. The difficulty may well be that you lack the skills to truly empathise with your victims, precisely because of your deprived upbringing and the struggles you have had with your well-being.
39
In sentencing you, I take into account the report of Ms Simmons, psychologist, dated 26 February 2020. You were interviewed via video conference on
26 February 2020. The psychologist concluded that you disclosed symptoms of depression at the time of the offending behaviour, although you might have appropriately met the criteria for Adjustment Disorder with Depressed Mood as a result of Ms King’s stroke and the change it caused to your lifestyle. It was said in that report that there was some evidence of symptoms of Post-Traumatic Stress Disorder, but these did not appear to reach the threshold for a formal diagnosis.
40 It was not submitted that there was anything in the psychological report which would warrant the application of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 considerations. However, I take the findings into account in a general way in sentencing you. In all of the circumstances of your case, I consider that you have fairly bleak prospects of rehabilitation and I must give specific deterrence and protection of the community fairly strong weight. I consider that the principles in Bugmy ought to be applied to your case, as your deprived upbringing has had lasting effects on you which are somewhat connected to your offending. Therefore, I regard your moral culpability as somewhat reduced and I also make some reduction in the weight attaching to general deterrence and just punishment.
41 I understand that you are now drug free and hold a responsible position in the kitchen, where you are on remand.
42 When I raised with your counsel whether you were an Australian citizen, he obtained instructions from you that you were not, and so there is some prospect of your deportation upon completion of your sentence. However, it was not submitted that you have experienced anxiety in relation to this, rather, your counsel indicated that you were fairly resigned to your fate. I allow for the fact that you will be concerned for the welfare of Ms King in your absence and that you have experienced this concern whilst in custody. These worries will no doubt make time in custody harder than it might otherwise be. I have also factored in that whilst in gaol you have done some courses, including a drug and alcohol program for the first time.
43 It is accepted that the only appropriate penalty in your case is a sentence of imprisonment with a non-parole period. It is to be hoped that when you are in the community once more that you use your own skills and initiative to live a law-abiding life, without the need to depend on others in order to do so.
44 I now proceed to sentence you.
45 You are convicted of each of the offences.
46 You are sentenced to the following periods of imprisonment:
47 Charge 1 12 months
48 Charge 2 eight months
49 Charge 3 12 months
50 Charge 4 eight months
51 Charge 5 16 months
52 Charge 6 five months
53 Charge 7 12 months
54 Charge 8 eight months
55 Charge 9 16 months
56 Charge 10 12 months
57 Charge 11 eight months
58 Charge 12 three years which will be the base sentence
59 Charge 13 three years
60 Summary Offence: two months
Level of cumulation
61 I direct that three months’ imprisonment from the sentences imposed on Charges 1,3,7 and 10, four months from the sentences on Charges 5 and 9, and 12 months from the sentence on Charge 13 be served cumulatively with each other and with the base sentence producing a total effective sentence of five years eight months’ imprisonment and I direct that you serve three years’ imprisonment before being eligible for parole.
62 I declare that you have already served 527 days by way of pre-sentence detention which will be deducted from the sentence that I have just imposed.
63 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years’ imprisonment with a non-parole period of five years’ imprisonment.
64 Now, counsel, is there anything arising from these remarks?
65 MR GOETZ: No, Your Honour.
66 MR McGLONE: No, Your Honour. Just actually in terms of the cumulation, that was one, three, seven and 10, was that three months cumulative?
67 HER HONOUR: Yes.
68 MR McGLONE: Thank you.
69 HER HONOUR: All right, anything further?
70 MR McGLONE: No, Your Honour.
71 MR GOETZ: No, ma'am.
72 HER HONOUR: All right, now did, Mr McGlone, did you wish to have a word with Mr Simpson in the absence of the prosecutor in my absence or will you speak to him later on.
73 MR McGLONE: Look, I raised with him that what I'll do is I'll organise a telephone conference with him. It's a little bit easier to talk to.
74 HER HONOUR: Very well, thank you. Well, we will now adjourn and turn off the transmissions.
75 MR McGLONE: As Your Honour pleases.
76 MR GOETZ: May it please the court.
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