R v Simpson - [2024] NSWDC 619

District Court

New South Wales

Medium Neutral Citation: R v Simpson [2024] NSWDC 619
Hearing dates: 28 October 2024
Date of orders: 28 October 2024
Decision date: 28 October 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 3 years 9 months with a non-parole period of 2 years and 1 month

Catchwords:
CRIME — Driving offences
CRIMINAL PROCEDURE — Back up and related offences
SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of Intensive Correction Orders — Record of previous convictions
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Assaulted in gaol — Drug addiction —Impact of gaoling parents — Mental health issues and disorders — Exposure to domestic violence and drug abuse during childhood — Youth and immaturity

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Road Rules 2014 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Clarke-Jeffries v R [2019] NSWCCA 56
DS v R; DM v R [2022] NSWCCA 156
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mundav State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Paterson v R [2021] NSWCCA 273
R v MJ [2023] NSWCCA 306
Tepania v R [2018] NSWCCA 247
Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252
Yun v R [2017] NSWCCA 317

Texts Cited:
D Ritchie, “Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1
The Bugmy Bar Book Project (2023)

Category: Sentence
Parties: Joshua Simpson (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
R McMahon (for the offender)
Solicitors:
Legal Aid (NSW) (for the offender)
L McGonigal solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/283220

JUDGMENT – ex tempore revised

Introduction

Joshua Simpson was born in 1999. As a young child he was exposed to domestic violence, drug use and crime. At times he was abandoned. Both his parents spent time in gaol. His basic needs were not met. His schooling was disrupted significantly. He was often homeless. As a consequence of his background, he lacks many core capabilities; including the capacity to self-regulate. His executive functioning has been wired quite differently than a person who did not have his significant disadvantages while growing up. He spent short periods of time in juvenile detention. He went to gaol for the first time, bail refused, as a young adult.
His idea of survival in the community is not the same as someone who had what might be described as a ‘normal’ upbringing. For example, he has never obtained a driver’s licence.
He came…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Simpson

Details

AGLC: R v Simpson [2024] NSWDC 619
Case: [2024] NSWDC 619
Decision Date: 28 October 2024

CaseChat Overview and Summary

The defendant, Simpson, was charged with various driving offences and appeared before the court for sentencing. Simpson had a history of criminal activity, including breaches of conditional liberty and Intensive Correction Orders, and a record of previous convictions. The court was tasked with determining the appropriate sentence, taking into account both aggravating and mitigating factors.

The legal issues before the court included the role of sentencing guidelines, the impact of Simpson's previous convictions and breaches, and the mitigating factors such as his plea of guilty, his drug addiction, mental health issues, and his difficult upbringing. The court had to balance the need for deterrence and the objectives of sentencing with the personal circumstances of Simpson.

In determining the sentence, the court considered the objective seriousness of the offences, Simpson's moral culpability, and the purposes of sentencing. The court also weighed the aggravating factors, such as the breaches of orders and previous convictions, against the mitigating factors, including Simpson's plea of guilty and his difficult background. Ultimately, the court decided on an aggregate sentence of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 1 month.

Orders

Orders of the court

Aggregate sentence of imprisonment of 3 years 9 months with a non-parole period of 2 years and 1 month

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Simpson [2024] NSWDC 619
Hearing dates:	28 October 2024
Date of orders:	28 October 2024
Decision date:	28 October 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 3 years 9 months with a non-parole period of 2 years and 1 month
Catchwords:	CRIME — Driving offences CRIMINAL PROCEDURE — Back up and related offences SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of Intensive Correction Orders — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Assaulted in gaol — Drug addiction —Impact of gaoling parents — Mental health issues and disorders — Exposure to domestic violence and drug abuse during childhood — Youth and immaturity
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Road Rules 2014 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Clarke-Jeffries v R [2019] NSWCCA 56 DS v R; DM v R [2022] NSWCCA 156 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mundav State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Paterson v R [2021] NSWCCA 273 R v MJ [2023] NSWCCA 306 Tepania v R [2018] NSWCCA 247 Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252 Yun v R [2017] NSWCCA 317
Texts Cited:	D Ritchie, “Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1 The Bugmy Bar Book Project (2023)
Category:	Sentence
Parties:	Joshua Simpson (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: R McMahon (for the offender) Solicitors: Legal Aid (NSW) (for the offender) L McGonigal solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/283220