R v Gordon Joshua Simpson
[2012] NSWDC 268
•29 June 2012
District Court
New South Wales
Medium Neutral Citation: R v Gordon Joshua SIMPSON [2012] NSWDC 268 Decision date: 29 June 2012 Before: Cogswell SC DCJ Decision: For the two offences of aggravated break, enter and steal and break, enter and steal - aggregate sentence imposed: 3 years and 9 months imprisonment, non-parole period 1 year and 11 months, balance 1 year and 10 months.
Catchwords: CRIMINAL LAW - Particular offences - property offences - break, enter and steal - lower end of objective seriousness although significant amounts involved - Sentence - relevant factors - circumstances of the offence - use of offensive weapon - scissors - offences committed while on parole - lengthy criminal record - difficulty adjusting to life outside gaol - risk of institutionalisation - offences not planned or sophisticated - left DNA at scene - guilty plea - circumstances of the offender - young Aboriginal man - culturally aware - trusted in the prison system - participated in programmes for rehabilitation in prison and warning children of dangers of drugs - single addiction to heroin - genuine desire to live drug-free lifestyle and give to his community - strong family support - tickets for use of machinery - purpose of sentence - general deterrence - protection of community - specific deterrence necessary - rehabilitation - ratio between non-parole period and full term reduced to 50 per cent - special circumstances - substantial period on parol to attend residential rehabilitation facility - Form 1 taken into account. Legislation Cited: Crimes Act 1900 s 112(1)(a), s 112(2)
Crimes (Sentencing) Procedure Act 1999 s 32, s 53ACases Cited: R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435. Category: Sentence Parties: Regina (Crown)
Gordon Joshua SIMPSON (Offender)Representation: Solicitors:
E Curran (Crown)
A Wong (Offender)
File Number(s): DC 2011/278140; 2011/349464
REMARKS ON SENTENCE
I am sentencing Gordon Simpson for offences to do with breaking into people's houses and stealing. This is far from the first time that he has been sentenced for this sort of crime. He has spent a good amount of his adult life in gaol under sentence from various Local Court Magistrates for similar offences. He must be punished for these further crimes but, at the same time, I need to take into account his acknowledged need for rehabilitation.
I will say something about the crimes that I am sentencing him for then I will refer to his personal circumstances. I will mention the arguments for him and for the Prosecution before sentencing him.
The two crimes that I am sentencing him for are both, as I have said, break and enter offences. The first is called aggravated break enter and steal. He was armed with an offensive weapon, which explains the aggravation. That is a crime against s 112(2) of the Crimes Act 1900. Parliament has fixed a maximum of 20 years imprisonment for that crime. Not only that, Parliament regards the offence so seriously that it has fixed a standard non parole period of 5 years to the crime.
The second offence is a break, enter and steal. That is an offence against s 112(1)(a) of the same Act. Parliament has fixed a maximum of 14 years imprisonment for that crime.
When I am sentencing him for each of the offences, Mr Simpson has asked me to take into account other offences which have been listed on two forms under s 32 of the Crimes (Sentencing) Procedure Act 1999. I will take those offences into account and I sign forms to that effect. When I am sentencing him for the aggravated break enter and steal he has asked me to take into account three offences of remaining in a building with intended larceny. When I am sentencing him for the break and enter he has asked me to take into account a break enter and steal.
The aggravated break, enter and steal was committed by him on a Wednesday afternoon 17 August 2011. Luca Bartolomei came home to his house in Carrington Road, Randwick and found Mr Simpson there in the home. He had a backpack over his shoulders and a pair of orange handled scissors in his hand. The possession by him of the scissors explains why the offence is an aggravated break, enter and steal because the scissors are regarded as an offensive weapon. When confronted by the owner, Mr Simpson took the backpack off and left it on the floor. He left the house through the broken window, which he had smashed in order to get in. When he was taking the backpack off the scissors were raised towards the victim who was frightened that he was going to lunge at him. I accept that was not Mr Simpson's intention; he was simply removing the backpack. He left a bloodstain which matched his DNA. Although he left the backpack behind, he left with items in his pocket and his hands. Amongst the items he stole was a Rolex watch valued at about $8,000. He stole a wedding ring. He also stole two solid gold rings that belonged to Mr Bartolomei's grandfather. He stole a diamond necklace worth $4,000.
When I am sentencing him for that offence, I take into account the three offences of remain in a building with an intention to steal which all occurred on 20 August 2011 when he got into a secure car park in Elizabeth Street, Surry Hills at night time. He approached three cars and tried to get in. He smashed windows and caused damage. He stole an iPod from one of the cars but was unsuccessful in stealing things from the other cars. He left fingerprints again. That gave rise to the three charges that I am taking into account.
The second offence occurred mid morning on Monday 22 August 2011. He broke into a unit in Jacques Avenue, Bondi Beach. In fact the offence occurred sometime between Monday 22 August and Thursday 25 August when the occupier came home and found that her unit had been broken into. Her personal belongings were spread over the hallway, drawers were open and property sprawled over the bed and the floor. The sliding glass balcony door was completely shattered and valuable jewellery in the bedroom was missing. When the police arrived they found that the unit had been ransacked. There was a screwdriver jammed in the outside lock. Again they found fingerprints. Not only that, they found a mobile phone. On the mobile phone were two photographs of Mr Simpson and some messages.
When I am sentencing him for that, I take into account a break enter and steal which had occurred some years beforehand on 27 January 2009 at Westmead. He broke into a unit in Priddle Street, Westmead. He broke a glass window and got in. He ransacked the unit. He stole nearly $6,000 worth of property, including watches, a necklace, cameras, a mobile phone, an iPod and dozens of DVDs.
Mr Simpson was arrested on 29 August 2011 and whilst in custody he was charged with all the offences. Although he has been in custody since 29 August 2011, when he committed these offences he was on parole. So much of the time since his arrest, he has spent serving the balance of parole from an earlier sentence. In fact he did not commence serving time on these offences until 12 February 2012. Ms E Curran, who appears for the Director of Public Prosecutions, argues that the sentence should date from 12 February 2012, although acknowledging that I have discretion. Mr A Wong, who appears for Mr Simpson, argues that I should backdate the sentence. I propose to date the sentences from 1 January this year.
Mr Simpson has a bad criminal record which I have referred to briefly. He is now 26 and has been in trouble with the law since he was about 15. He made numerous appearances in the Children's Court for various offences, including stealing and destroying property. He received control orders and other punishments. He was referred to the Youth Drug Court at various stages. As an adult he has been before the Local Court numerous times. He has been given bonds, but has been convicted frequently of break, enter and steal. He has received prison sentences, some of them being for 2 years and at least one of them had a non-parole period of 18 months. As I said, he was in fact on parole when he committed the offences that I am sentencing him for.
This record of course is an aggravating factor and indicates the heightened need for me to consider the protection of the community from the activity of Mr Simpson and a factor such as specific deterrence. Another aggravating feature is of course the fact that he committed the offences whilst he was on parole. The explanation for this life of crime by Mr Simpson is tragically simple. He has been addicted to heroin for many years.
I will now say something about Mr Simpson's personal circumstances. Commendably, Mr Wong called his client to give evidence. He is an impressive young man and that is reflected in one or two of the reports that I have read. He has strong family support particularly from his mother, who is here in Court and has remained in touch with him since he has been in prison. He explained that when he was released last time he was getting his daily methadone dose but found it difficult to get to the clinic from his mother's home where he was staying. When he missed out because it had shut he resorted to heroin. He said a number of times that he expected it to be easy to adjust to life outside gaol but found it very hard. Once he used heroin the first time he was back into the habit. He quickly developed a need for spending $100 - $200 a day, which explains, but does not of course in any way justify, his criminal activity. Revealingly, he said he found it a lot easier in prison because of the routine. In fact that was the focus of one of Mr Wong's arguments about the risk of institutionalisation. When he was confronted by the man in Randwick he had used the scissors to get in and he was shocked to see him. He was holding the scissors when he took his backpack off. I accept that explanation.
I should have added earlier that the combined value of the amounts he stole from the Randwick place was something like $13,000. He had selected the Jacques Avenue unit at random. He was desperate and simply breaking in. As Mr Wong said, there was no planning or sophistication. There hardly could be, given the amount of evidence he left behind. He acknowledged how the occupants of these units must have reacted to their homes and lives being invaded, how upset and unsafe they must have felt.
He has some tickets for use of machinery. He spent some time working at the Fish Markets some years ago.
He had started using heroin aged 14 or 15. He hardly drinks alcohol and does not use other drugs. In that way, his habit is rather unique although still, of course, a tragic aspect of his life. He has had a word with Benelong Haven in Kempsey and would like to go there. He acknowledges the need for a residential facility. He had tried such facilities when he was a teenager but they were unsuccessful. He acknowledges that there is little point in him being released into the community without support and acknowledges that the choice is his. He acknowledged in cross examination by Ms Curran, that he had breached bonds before and had committed these offences within weeks of being released on parole previously. He has participated in programmes for rehabilitation in prison and also programmes designed to warn children of the dangers of drugs.
There is a report about him from an alcohol and other drugs counsellor at the MRRC at Silverwater. The author notes that Mr Simpson "appears genuine in his desire to live a drug-free lifestyle and to give back to his community all the cultural support he has been receiving whilst in custody." I make the same observation. The report referred to his employment at the Fish Market and the author described Mr Simpson as "an extremely polite and culturally aware young Aboriginal man and presents as genuine in his wanting to change in his life." Once again, my observations are the same. He is trusted in the prison system and has become involved in cultural activities.
Mr Wong arranged for him to see a clinical psychologist, Peter Champion, who provided a report that became Exhibit 1. Mr Champion described a dysfunctional upbringing because of the drinking by both of his parents. I add that his mother is no longer drinking and is a great support to him. Mr Champion noted Mr Simpson's desire to change the course of his life and that he had some concern about becoming institutionalised. He told Mr Champion that there "was little point to simply releasing him from prison, whether on parole or not, as he did not cope and tended to relapse reasonably quickly." Looking ahead, Mr Champion said that it is quite clear that if Mr Simpson cannot manage his addiction then "the risk of further offending will be significant." His prognosis in such circumstances would be poor. Mr Champion was guarded about his prognosis, acknowledging that it was "necessary to see whether he can utilise AOD treatment effectively, and as he himself indicated, whether he can break the cycle." Mr Champion described him as finishing at year 10 in school and being of sound intellect and literate. He thought that he should be assessed for an intensive pre-release AOD treatment program.
HIS HONOUR: I pause there from my remarks on sentence. Mr Wong, at some stage - well, soon -I will ask you to get instructions about sending Mr Champion's report to the Corrective Services Department, that section which assesses him for classification. The officers in that section have indicated that they are greatly assisted by such material. On the other hand, not all prisoners want such material within the system so I understand that it is a matter for instructions and I won't send it unless you agree. I will return to my remarks on sentence.
Mr Wong asked for a lengthy parole period so that his client can make use of a residential rehabilitation facility. He argued that both offences that I am sentencing his client for were at the lower end of seriousness. The scissors were not used as a weapon but to break in. Jacques Avenue was chosen randomly. Both those observations are correct although as Ms Curran said the amounts of money stolen at both break-ins was significant. They were obviously unplanned and unsophisticated.
Mr Simpson has spent in his young adult life some 5 years in prison and only about 3 years in the community. It is important to avoid him becoming institutionalised. Mr Wong argued for some concurrency in the sentencing, pointing out that the offences I am sentencing him for all occurred over a five day period from 17 to 22 August 2011. Because of the lengthy periods he has spent in custody, he urged me to backdate the sentence. I have indicated that I will commence the sentence at the start of this year.
Mr Wong urged me to impose a sentence of less than 3 years. I can say now that I would regard such a sentence as too low. Ms Curran pointed to the obvious aggravating features of the offences being committed on parole and the importance of general and specific deterrence. Mr Simpson has a history of not abiding with the conditions of his bond. She referred to the guideline judgment issued by the Court of Criminal Appeal in R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 and pointed out that many of the factors in that guideline are present here. Addiction, of course, is not a mitigating feature. Ms Curran fairly acknowledged that Mr Simpson was entitled to a discount of 25 per cent for his plea of guilty and acknowledged that there were special circumstances to warrant an adjustment in the standard relationship between the non-parole period and the full term of the sentence. She said I could not reduce the non-parole period too much because of the importance of deterrence. Unfortunately, she said, residential rehabilitation has failed previously. That observation is true but Mr Simpson was still a teenager when he last attempted residential rehabilitation.
I do not propose to impose the standard non-parole period because Mr Simpson has pleaded guilty to both offences.
I regard an appropriate sentence for the principal offence - bearing in mind I accept the submission that it is at the lower end of objective seriousness even though the amount involved was significant - as being 4 years and 8 months. Because Mr Simpson has pleaded guilty I will reduce that by 25 per cent so the sentence that I would impose for the aggravated break, enter and steal would be 3 ½ years imprisonment. For the break, enter and steal I would regard an appropriate sentence as 2 years and 8 months. I would discount that by 25 per cent so that the appropriate sentence would be 2 years imprisonment. I would direct that there be some accumulation of those two sentences and some concurrence. I would regard an appropriate overall sentence as one of 5 years imprisonment.
The appropriate sentence for the aggravated break, enter and steal would be 3 ½ years imprisonment and that is before a discount and the appropriate sentence for the break and enter would be 2 years imprisonment before a discount. I would partially accumulate and partially specify that those 2 sentences run at the same time with an overall result of 5 years imprisonment. I would then discount that 5 years by 25 per cent, fixing a sentence of 3 years and 9 months which I intend to impose as an aggregate sentence for both crimes. The sentence of 3 years and 9 months will commence on 1 January 2012.
I do propose to exercise my discretion and vary the ratio between the non-parole period and the full term. The non-parole period would normally be some 75 per cent of 3 years and 9 months but I propose to reduce it significantly to just over 50 per cent, so that the non-parole period will be 1 year and 11 months. It will commence on 1 January 2012 and expire on 30 November 2013 and the overall sentence will expire on 30 September 2015.
I should say this about the aggregate sentence that I will impose. It is relatively lenient. I hope not too lenient. It needs to take into account the seriousness of the conduct, particularly given that Mr Simpson was on parole when he committed the crimes and has a bad criminal record. On the other hand, I too am impressed by him as a young man trying to get his life back into order. He has a single addiction and a good amount of family support. He appears genuine and determined to try to get his life back in order. Many other aspects of his life, including his employability and family support, are helpful for him. I have taken those factors into account, particularly given his age, in fixing a relatively lenient sentence, one which will require him to serve time in prison for the rest of this year and most of next year, but then I have allowed for a substantial period of time on parole so that hopefully he can make good use of a residential rehabilitation facility.
I am now going to sentence you Mr Simpson, if you would stand up? I fix a non-parole period of 1 year and 11 months that will commence on 1 January 2012 and expire on 30 November 2013. The overall sentence will be 3 years and 9 months commencing on 1 January 2012 and expiring on 30 September 2015. The earliest date on which it appears on the information available to me that you will be released is 30 November 2013. If you would have a seat now please Mr Simpson?
HIS HONOUR: Mr Wong, Ms Curran, look carefully at it. I think it's right mathematically.
CURRAN: It appears to be right, I'm just a little confused in relation to the references of 4 years and 8 months for the aggravated break and enter.
HIS HONOUR: I got confused partway through it, you are right.
The sentence that I would indicate is appropriate for the aggravated break and enter is 3½ years. The sentence that I would indicate is appropriate for the break and enter is 2 years. I would partially accumulate and partially direct that they run together and the result would be 5 years as a combined sentence. I would then discount the 5 years by 25 per cent to represent the plea, so that I reach the final sentence of 3 years and 9 months. Under s 53A of the Crimes (Sentencing Procedure) Act, I impose an aggregate sentence.
HIS HONOUR: I have indicated what the four sentences would be and what I was trying to do unsuccessfully was to indicate what the discounted sentences would be. I will indicate that now.
The discounted sentence for the aggravated break, enter and steal would be 2 years and 7 months. The discounted sentence for the break and enter would be 18 months and I would partially accumulate and partially direct that they be concurrent to produce 3 years and 9 months.
I have to indicate under s 53A what the sentences would be, and the sentences that I indicate are 2 years and 7 months for the aggravated break and enter and 18 months for the break and enter.
HIS HONOUR: Check that to make sure it makes sense, both of you.
CURRAN: Those figures appear to be right to me. The only other issue I have was, and I'm not sure if it was just I not hearing your Honour correctly when your Honour provided the dates in relation to the non-parole period. So that's for a period of 1 year and 11 months, which commences on 1 January 2012 and expires on 30 November 2013. I thought I misheard your Honour saying that the parole period commences on 30 January 2014.
HIS HONOUR: That's wrong, the overall sentence is 1 January 2012 and 30 September 2015. Non-parole period 1 January 2012 to 30 November 2013. So it follows that the balance of the term is 2 years and 2 months I think.
CURRAN: The only other thing was, at the start of your Honour's remarks on sentence your Honour referred to the offender serving his balance of parole, your Honour indicated that finished on 12 February.
HIS HONOUR: What was the date?
CURRAN: The 19th.
HIS HONOUR: The record should be corrected.
My indication of 12 February should be 19 February.
HIS HONOUR: I was casting around looking for the date and then I picked it from memory wrongly, but thanks Ms Curran.
CURRAN: Finally, the Crown is seeking compensation in relation to the break, enter and steal offences and also the damage offences in the cars. Your Honour will see in the agreed set of facts it refers at the end of each offence the compensation sought by the victims of those matters. So I'd ask your Honour to make those orders.
WONG: The concern that I would have is the utility of making such orders, given the time that Mr Simpson will be in custody and not earning an income, and then the difficulties that he will be facing when he is released. Beyond that, I have nothing further to say as to the practicalities of imposing a compensation order that in all likelihood won't be able to be paid.
HIS HONOUR: Ms Curran, if I don't impose a compensation order, does that compromise the rights of the victims to any recompense?
CURRAN: Not that I'm aware of, your Honour.
HIS HONOUR: No. See, what I'm aware of is his need to make a fresh start when he gets out and gets himself rehabilitated, and, if he enters his working life with a fairly crushing compensation order, justified as though it would be, and that's pursued, it would just be another obstacle in getting himself on his right path. I refuse the application.
CURRAN: Yes, your Honour.
HIS HONOUR: Yes, the balance of the term is 1 year and 10 months.
WONG: If I could just seek those instructions in relation to the report?
HIS HONOUR: Would you do that, yes.
MATTER INTERPOSED
WONG: There is no issue with the reports being provided.
HIS HONOUR: Good, thank you, they do say it is helpful in classification. All right, my associate will send those to the appropriate authorities.
Now, Mr Simpson, I have got to explain the sentence to you. It makes sense, I'm sure. I have gaoled you for 3 years and 9 months - that is your prison sentence - it is one sentence for both of them.
OFFENDER: Yes.
HIS HONOUR: I have backdated it until 1 January. There was a good argument for starting it on 19 February, but I have made a couple of concessions, significant ones in your favour, okay?
OFFENDER: Thank you.
HIS HONOUR: And I'm starting it on 1 January. I have directed that there be a non-parole period that you must stay in gaol, starting on the same day, 1 January, of 1 year and 11 months, which will mean that you are eligible for release on 30 November next year, 30 November 2013.
OFFENDER: Yes.
HIS HONOUR: Whether you are released or not depends on the Parole Authority, which you know as well as I do. Once again, that non-parole period is shorter than it might otherwise be - I am just going to work it out - for a sentence of 3 years and 9 months, the non-parole period would be something like 2 years and 9 months, almost 2 years and 10 months, and I have reduced it to 1 year and 11 months, all right?
OFFENDER: Half of that time will probably be spent at rehab, your Honour.
HIS HONOUR: I'm glad to hear that. Good on you. Well, look, as I said, frankly, it's a lenient sentence, okay? I hope not too lenient, and that you don't face a Crown appeal, but that's not my decision. I have erred deliberately in your favour because you have impressed me and you have impressed the people that you are fair dinkum in your efforts. You have got a serious addiction that you have got to deal with. You are realistic about acknowledging your need for support when you get out of prison. It doesn't work when you are unsupported. You know that, and that's an important insight. You are getting help in prison. You have obviously impressed the authorities there. You need to be given a chance. That's why I didn't order the compensation.
OFFENDER: I have had a fair few chances but--
HIS HONOUR: I know you have.
OFFENDER: I just say thank you for the chances I've been given.
HIS HONOUR: All right, you have got to make use of it. You've got to use that time to rehab and then stay in contact with Benelong or somewhere like that, get yourself into the centre.
OFFENDER: That's (not transcribable).they've got a lot of programmes up there that would suit me.
HIS HONOUR: I know they do, I know about some of those places. I have visited one or two of them, and they're very good, and, once you get your life back on track and deal with this heroin addiction, you've got a bright future in front of you, and you've already impressed people with your contributions, and you've got a good future in front of you, but you've got to deal with this heroin addiction, and let them do it. So I'm erring on the side of giving you a chance, and I'm not taking a risk - the community is - not me. It's easy for me to sit here and do this, but, if you break it, it means that once again you're going to scare people to death by breaking into their units, by losing stuff - you can imagine what it's like to lose your grandfather's gold rings, your watches, your jewellery, your CDs, things like that, all precious for people. You can imagine how their lives - this woman moved out of her unit in Bondi, couldn't go back to it, complete disruption - so it's not me taking the risk, it's the community taking the risk, and that's why I am going to trust you with this relatively lenient sentence. Good luck. All right, make the best use of it.
Mr Wong, thank you for your assistance. Ms Curran, thank you for your assistance.
ADJOURNED
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Decision last updated: 13 March 2013
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