R v Simpson

Case •

[2022] NSWDC 638

•

15 December 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Simpson [2022] NSWDC 638
Hearing dates: 11 November 2022, 15 December 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate sentence of 4 years 6 months with a non-parole period of 2 years 6 months

Catchwords:

APPEAL - Appeal against sentence

CRIME – Sentence for District Court matters - endanger safety of person on railway - Cause obstruction to railway locomotive - Recklessly damage property - Convicted offender enter land to commit indictable offence (larceny)

CRIME – Sentence Local Court matters – Drive while disqualified-larceny- dishonestly obtain benefit by deception

CRIMINAL PROCEDURE− accumulation of sentences on existing Local Court sentences

SENTENCING - Relevant factors on sentence - early plea - worst case offending – deprived background – childhood trauma – institutionalised offender- extremely reckless behaviour- remorse - time in custody worse now than ever - locked in for the majority of the time, sometimes four out in a two-person cell - $9,500,000 in property damage - endanger safety punishment for potential not actual harm

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Road Transport Act 2013

The Crimes Act 1900

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R [2007] NSWCCA 1

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Jackson v R [2010] NSWCCA 162

Jinnette v R [2012] NSWCCA 217

Ladas v R [2022] NSWCCA 160

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70

Moodiev R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 259 CLR 600; [2013] HCA 38

Pearce v The Queen (1999) 194 CLR 610: [1999] HCA 57

Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327: 42A Crimes (Sentencing Procedure) Act 1999

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Geddes (1936) 36 SR (NSW) 554

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Kalache [2000] NSWCCA 2

R v MAK [2006] NSWCCA 381

R v Millwood [2012] NSWCCA 2

Rv Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Wheeler [2000] NSWCCA 34

Tepania v R [2018] NSWCCA 247

The Queen v De Simoni (1981) 147 CLR 83; [1981] HCA 31

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14

Category:Sentence
Parties: Allan Martin Simpson (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Mr J Hibbard (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)
File Number(s): 2021/00299080

sentence

Introduction

  1. Allan Simpson, now aged 47, has spent over 30 years of his life in some form of custody. He was first committed to an institution for a variety of offences when he was 13. As one of the reports before me notes; “[his] periods in detention as a juvenile appear to have had no rehabilitative consequence. In fact, from his account he was repeatedly traumatised by experiences of sexual assault:” Exhibit 2 at [27]. The longest continuous period he has lived in the community is less than a year.

  2. Having been released to parole on 30 September 2020, he was, by his own standards, doing well. He had formed a relationship with a woman who was trying to keep him on track. She helped him seek help and compensation for the trauma resulting from childhood sexual abuse. He was engaged with her children. He was trying to remain drug free.

  3. His behaviour was far from perfect, as he continued to drive, despite his never having been licensed. He was charged with driving while disqualified in November 2020 and again in April 2021 after he was involved in a motorcycle crash and seriously injured his leg. He was given pain killers but increased his abuse of illicit drugs. His offending continued. He came before the Local Court for a number of offences involving dishonesty committed in March, April and August 2021. He continued to flout the driving laws. As his drug and alcohol use increased his mental state deteriorated; as it had so often in the past.

  4. Simpson’s Local Court proceedings were heard on 14 November 2022. The sentencing proceeding in the District Court commenced on 11 November 2022. The hearing went after 4pm and I did not have time to deliver a judgment. It was adjourned until today 14 December 2022. If Simpson had been sentenced that day, as anticipated, s 58 Crimes (Sentencing Procedure) Act 1999 would have limited the sentence available to the Magistrate. The delay meant Simpson lost that advantage. Simpson was sentenced on 14 November 2022 to an aggregate sentence of 3 years imprisonment with a non-parole period of 18 Months. The sentence commenced on 27 October 2021 and his parole period commenced on 26 April 2023. Mr Simpson appealed against that sentence, and it was listed before me today. I dismissed his appeal against sentence on the merits, but three (3) days spent in custody bail refused were not accounted for. Accordingly, I backdated his sentence to commence on 24 October 2021.

  5. The matters for sentence judgment today had their genesis, in the early hours of the morning of 20 October 2021, when Simpson decided to commit a break and enter offence on a go-kart track in southern Wollongong. He wanted to, and did, steal a go-kart. What happened that morning has had catastrophic consequences for several individuals, Sydney Trains and the community. His actions mean Simpson will be kept in gaol for another lengthy period and that his prospects on release will be even bleaker than they were on earlier occasions.

  6. How did it come to this?

Facts

  1. In October 2021 the offender had visited the Wollongong Kart Raceway and agreed to purchase a part for a go-kart.

Seq 4 – Drive whilst disqualified (2nd+ offence) – s54(1)(a) Road Transport Act 2013 (s166)

  1. Late on 19 October 2021, the offender got into his partner’s Nissan van and drove it from their address. He had been disqualified from driving for two years on 22 November 2019.

Seq 11 – Convicted offender enter land with intent to commit indictable offence (larceny) – s115 Crimes Act 1900

Seq 3 – Larceny (go-kart) – s117 Crimes Act 1900 (Form 1 referable to seq 11)

  1. About 2:37am on 20 October 2021, the offender was seen on CCTV footage at Kembla Grange Train Station. He was riding a mountain bike. About 2:39am, the offender rode the bike onto the rail corridor at the rail crossing at West Dapto Road.

  2. The offender stopped at the boundary fence of Wollongong Kart Raceway about 200 metres south of the train station. He used bolt cutters to cut a large opening in the fence.

  3. He entered the property and pushed a motorised go-kart on a metal trolley towards the opening in the fence. He then dragged the trolley and go-kart to an embankment adjacent to the train tracks.

  4. About 3:12am, the offender, in possession of the bolt cutters, returned to the train station. Only then did he put on a face covering to conceal his identity.

  5. The offender left the station but soon returned holding a large wooden stick and wooden pole. The offender used the stick to reposition two CCTV cameras so that they no longer faced the rail crossing at West Dapto Road.

Seq 5 – Endanger safety of person on railway – s212 Crimes Act

Seq 6 – Cause obstruction to railway locomotive – s213 Crimes Act

  1. The offender then drove the Nissan van, onto the rail corridor to retrieve the go-kart. About 50 metres south of the rail crossing, the van’s axle became stuck on the train line and elevated its wheels from the ground.

  2. He returned to West Dapto Road, where he flagged down a witness. He asked, “can you drive down and nudge me off?". The witness and the offender attempted to push the van from the train line without success. Another witness attempted to assist and called 000 for police assistance. The offender said, "Don't call the cops, I don't have a licence."

  3. Soon after a northbound passenger train (Tangara 42) was seen heading toward them. They all moved away from the van, which was still stuck on the tracks. The offender did not stay at the scene.

Seq 8 – Recklessly damage property (NSW Tangara Train) – s195(1)(A) Crimes Act

Seq 12 – Reckless damage property (Nissan Van) – s195(1)(A) Crimes Act (Form 1 referable to seq 8)

  1. About 4:09am, Tangara 42, approached the West Dapto Rail Crossing around a right-hand sweeping bend at 102 kilometres per hour. The train driver saw the van on the rail tracks about 90 metres away and immediately applied both full braking and emergency braking systems.

  2. The train collided heavily with the van at a speed of about 91 kilometres per hour. The impact caused the van to be pushed about 30 metres along the track before it was pushed onto the western side of the rail corridor into a rail signal structure. The impact caused the structure to collapse and overhead powerlines to fall to the ground.

  3. The first two train carriages were derailed. This caused extensive damage to the track. The first carriage toppled onto its right side and slid along the ground. An itemised costing produced by Sydney Trains estimates the costs of damages and repair at $7,905,500: Exhibit B. At the time of the collision, the train carried on board the driver, a train guard and 10 passengers. The train driver and three of the passengers were in the first carriage.

Other consequences of the collision

  1. The train driver, was taken to Wollongong Hospital by ambulance and was treated for the following injuries:

  • L1 compression fracture of the spine,

  • Bruised rib,

  • Collapsed lung,

  • Extensive bruising to hips, leg and back.

  1. The train guard was taken to Wollongong Hospital by ambulance and was treated for pain to his left shoulder and lower back. A female passenger was taken to Wollongong Hospital and treated for pain in her upper chest. A male passenger was taken to Wollongong Hospital and treated for an L2 compression fracture of the spine.

Seq 9 – Possess prohibited drug – s10(1) Drug Misuse and Trafficking Act (s166) (Form 1 referable to seq 11)

  1. About 1:55pm on 27 October 2021, police went to the offender’s home. He ran into the rear yard where he was apprehended. He was searched and found to be in possession of 1.06 grams of methylamphetamine.

  2. He was arrested and taken to Lake Illawarra Police Station. He said, "I was going to hand myself in, I was just waiting to get my bike back from the repair shop…I was there stealing copper." He has been in custody ever since.

Form 1

  1. I have been asked to take into account the following matters on Forms 1

  • Seq 3 – Larceny (go-kart) – s117 Crimes Act (Form 1 referable to seq 11)

  • Seq 12 – Reckless damage property (Nissan Van) – s195(1)(A) Crimes Act (Form 1 referable to seq 8)

  • Seq 9 – Possess prohibited drug – s10(1) Drug Misuse and Trafficking Act 1985 (s166) (Form 1 referable to seq 11).

  1. It is appropriate I do so.

  2. Generally, where a matter is taken into account on a Form 1 some increase is required to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. Those principles apply to the damage property offence. Here, the larceny matter was used to inform the seriousness of the offence to which it relates. If separately dealt with there would have been total concurrence. And the drug possession offence would not have attracted a custodial penalty. It will be taken into account to enable the offender to clear his slate without the need to return to the Local Court.

Maximum Penalties

  1. The following maximum penalties apply:

  • Endanger safety of person on railway – s 212 Crimes Act, carries a maximum penalty of 3 years imprisonment.

  • Cause obstruction to railway locomotive – s 213 Crimes Act, carries a maximum penalty of 2 years imprisonment.

  • Drive whilst disqualified (2nd+ offence) – s54(1)(a) Road Transport Act 2013 (s166), carries a maximum penalty of 1 year. There is a default licence disqualification period of 12 months and a minimum disqualification period of 6 months: s205A(2) Road Transport Act.

  • Seq 8 – Recklessly damage property – s195(1)(A) Crimes Act, carries a maximum penalty of 5 years imprisonment.

  • Seq 11 – Convicted offender enter land with intent to commit indictable offence (larceny) – s115 Crimes Act, carries a maximum penalty of 10 years imprisonment.

  1. Careful attention to the maximum penalties is required. They provide sentencing measures to be balanced with all other relevant factors. But the maximum penalties available here create a conundrum. Both prosecution and defence accepted my proposition that the most serious offences committed are the cause obstruction to railway locomotive and endanger safety of person on railway. They, because of their similar elements, warrant considerable concurrency because the endangerment was occasioned by the obstruction of the locomotive. But the damage property and enter with intent offences carry higher maximums.

  2. It is the prosecution submission that both the obstruction to railway locomotive and endanger safety of person on railway are effectively worst-case offences. They note that recklessness is a component of the endanger offence and that if there had been intent a more serious charge could have been laid. The gravamen of both offences is the potential for harm to be caused. And here, that potential for harm was high, as became manifest.

  3. I note and emphasise Simpson is not to be punished for the consequences to those injured. He is not charged with causing personal harm to those on the train or intending a train be derailed: The Queen v De Simoni (1981) 147 CLR 83; [1981] HCA 31.

  4. In R v Geddes (1936) 36 SR (NSW) 554, Chief Justice Jordan said, in an oft quoted passage:

“The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others:” at 555-556.

  1. That passage was referred to with approval by Justice McHugh in Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357 at [65]. The Joint judgment in Markarian stated:

“Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. …It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be… appropriate … to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case:” at [30]- [31] citations omitted.

  1. Here I can use the prescribed maximum as a basis for comparison of this case with a worst case. I do not have to hypotheses the worst possible case.

Objective seriousness

  1. Ultimately, I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence, given all the factors relevant to the offending behaviour and the offender: Muldrock v The Queen (2011) 244 CLR 120; 2011] HCA 39; Markarian v The Queen; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.

  2. That task involves identification of essential facts that inform the objective seriousness of this offending and a reflection on the seriousness of the offending. However, as the High Court has made clear, I do not engage in a staged approach to sentencing: Markarianv The Queen and Muldrock v The Queen at [28]. A process of comparing and contrasting the actual offence with an abstract one is not necessary: s.54B(6); Tepania v R [2018] NSWCCA 247 at [103] to [120].

  3. Not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: “a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14.

Seq 5 – Endanger safety of person on railway – s 212 Crimes Act

  1. What Simpson did in driving onto the tracks was unlawful. The risk should have been obvious. Obviously, he did not intend for the van to get stuck, nor that anyone be harmed, but again, the risk should have been obvious. He drove onto the main rail line between Nowra and Wollongong. That risk became manifest as the injuries suffered by some on the train establish and the damage done make clear. But, I note again, he is being punished for his acts and the potential for harm not the actual consequences.

  2. Here the potential for serious harm even death was high. To cause something of the size and mass of a van to be stuck on a main rail line creates the real risk a collision will endanger those in the vicinity, particularly anyone on a train travelling on those tracks. It is hard to imagine a more serious breach of the section.

Seq 6 – Cause obstruction to railway locomotive – s 213 Crimes Act

  1. What Simpson did was done intentionally and without lawful excuse - elements of the offence. His act was the same act as that for the s 212 offence. To cause something of the size and mass as a van to be stuck on a main rail line creates the real risk a collision will result in serious damage, a derailment and injury to those on board. It is hard to imagine a more serious breach of the section.

Seq 4 – Drive whilst disqualified (2nd+ offence) – s 54(1)(a) Road Transport Act (s166)

  1. Not for the first time he has breached his obligation to a court and the community in relation to driver licencing laws.

  2. This was not a technical breach. Any conduct involving deliberate disobedience of a court order is serious. Such offending has the effect of undermining the authority of the courts and the protection to other road users inherent in such orders. So serious was this breach it justifies a custodial sentence.

Seq 8 – Recklessly damage property (NSW Tangara Train) – s195(1)(A) Crimes Act

  1. Damage to property offences are measured by what was done and the consequences. Here the damage was not done deliberately and a consequence of other acts, and thus not direct, but the level of recklessness was very high. Damage done is the main measure of culpability. Here nearly $8,000,000 damage was caused to a state agency. That cost to the community puts this offence, objectively, close to the but not in worst case category.

Seq 11 – Convicted offender enter land to commit indictable offence (larceny) – s115 Crimes Act

  1. Although this offence carries the highest maximum penalty of those for sentence, objectively it can be classified as lower in the range for offences of its type. Business premises were entered at night but only by going through a boundary fence. The property taken was of some value but thankfully it was not transported far, and was recovered.

  1. That said, I do not underestimate the cost to a small business of offences of this type. Where a business is broken into and losses caused, it can have a real impact on profitability and whether that business survives. Increased security and insurance impact on the bottom line.

  2. As a guideline judgment applies I must take it into account when evaluating the seriousness of the offence, however any assessment of objective gravity must be made by reference to the particular facts of the case: Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327: 42A Crimes (Sentencing Procedure) Act 1999; Moodie v R [2020] NSWCCA 160. A custodial sentence is required.

Guilty plea

  1. Simpson entered guilty pleas in the Local Court. In the ordinary course an offender would be entitled to a reduction of the otherwise appropriate sentence of 25% to reflect the utilitarian value of those guilty pleas.

  2. In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 it was noted that:

“In some cases no discount is appropriate at all...There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38]-[42]):” R v Thomson; R v Houlton at [156] – [157].

  1. When the matters were before the Local Court the prosecution did not apply for a determination that the discount not apply: 25F (3) Crimes (Sentencing Procedure) Act 1999 (C(SP) Act). Although, I have the power, of my own motion, to determine not to apply the sentencing discount I can only do so if the offender's level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence, can be met only by the imposition of a penalty with no allowance for that discount: s25F(3) C(SP) Act. Serious though these matters are they do not fall into that category.

  2. Accordingly, any sentence I indicate must be reduced by 25% and I must take care not to a erode the benefit of those pleas by the process of accumulation of sentence and formulation of an aggregate sentence.

Record

  1. The offender’s criminal history is relevant to determining the proper sentence. It indicates that this offending is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477

Subjective case

  1. Simpson gave evidence.

  2. I received a Report from Ms Duffy, a respected psychologist, and a psychosocial assessment from Mr Bembrick, of Legal Aid NSW. What was set out in the reports was not controversial and supported by what Simpson told me and other objectively verifiable material.

  3. Simpson is a Wiradjuri man. His Aboriginality derives from the paternal side. He was raised in the knowledge of his Aboriginality. His childhood was characterised by repeated exposure to a high level of domestic violence, heavy drinking and physical discipline. The police were involved with his family. Although he grew up in Western Sydney, he would escape his family by staying with relatives in Redfern. He was given minimal supervision or parental involvement or interest, and was soon drawn to truancy and delinquency. He effectively, “ran amok.” In 1987, when he was 13, he started going in and out of detention. A pattern of detention, release, drug and alcohol abuse, crime and more gaol, has not been broken.

  4. The reports detail the sexual abuse he suffered in juvenile detention.

  5. He received almost no formal education and is illiterate.

  6. He has done numerous gaol-based rehabilitation programs but never engaged in the community. He told a report writer, that he would “probably abscond from a community-based rehabilitation” programme.

  7. Simpson has worked in gaol. He told me that when he does have work he can earns $0:45 a day!

  8. During his time in custody, he has been locked down due to COVID restrictions for most of his time on remand. He told me in evidence, “the last 12 months has been the hardest prison I've ever done. I was locked in for the majority of the time, sometimes four out in a two-person cell. I caught COVID and still don’t have my sense of taste back.”

  9. He told me that, “I didn't mean for anything to happen. I would have written letters to the people who were hurt but I can't read or write. I can't say sorry enough without my remorsing I wouldn't be sane. I realise people could have died as a result of my stupidity.”

  10. I accept that Simpson is genuinely remorseful. I accept that if he had thought at all about the potential consequences of his reckless actions, he would not have driven the van onto the tracks. But almost everything I have learned about Simpson and his background indicates that he has no real capacity for consequential thinking. He constantly acts on the spur of the moment; without thought for his own interests, let alone the interests of others and the community. He has been formed by his background and for the same reasons his moral culpability is reduced. He has never developed a capacity to think rationally about his actions. This lack of capacity was compounded by his apparent intoxication at the time.

  11. Intoxication is not a matter in mitigation, but it is taken into account as a factor relevant to the sentencing. His long-term abuse of alcohol and drugs helps me understand how these crimes came about. It helps me understand his state of mind and capacity to exercise sound judgment. It is relevant here and provides assistance to his subjective case; as the origin or extent of the addiction, and any attempts to overcome it, impact upon his prospects of recidivism or rehabilitation: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273]

  12. Ms Duffy notes that now and on release Simpson has few resources in the community. He has lost the only source of positive support and guidance in his life. Her interviews and testing reveal he has a severe Alcohol Use Disorder and registers in the extremely severe range for Depression, Anxiety and stress. He presents as having Post Traumatic Stress Disorder, Adult ADHD and a persistent depressive disorder with anxious distress. These symptoms are consistent with his childhood deprivation, sexual abuse trauma, and persistent incarceration. Although he is presently drug free, he needs to participate in comprehensive addictions programmes such as IDAP and RUSH.

  13. He will require comprehensive exit planning for reintegration into society prior to his release. He will need ongoing support in finding a place to live and must receive the right level of professional assistance to help him maintain abstinence. He will need transitional accommodation. Outreach programmes are advised. Ms Duffy recommends that a long period of parole may give him the opportunity for close supervision. He would be assisted by Victim Services counselling.

  14. Mr Bembrik, concludes his comprehensive background report by noting that:

“As bleak as his future seems, I noted particularly Mr Simpson's desire to undertake a further structured treatment programme in custody… Mr Simpson spoke of participation in the Compulsory Drug Treatment Correctional Centre programme at Parklea Correctional Centre.I saw this as evidence that this damaged man remains committed to trying to turn his life around… a neuro-psychological assessment would yield helpful information about the extent of his cognitive deficits and may form the basis of future interventions, including the NDIS.”

  1. I note that offenders from the Illawarra and South Coast of NSW cannot access any Drug Court programmes. I urge, not for the first time, that such valuable services be made available in this region of the state.

Structure of sentence

  1. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70 at 62-63; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Cahyadi v R [2007] NSWCCA 1.

  2. There must be some accumulation of penalty. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381.

  3. However, the totality principle also recognises that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. To the extent the two offences contain common elements, it would be wrong to punish the offender twice for the commission of the elements that are common: Pearce v The Queen (1999) 194 CLR 610: [1999] HCA 57.

“The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements.” It should be approached as a matter of common sense, not as a matter of semantics:” Pearce at [42], citations omitted.

  1. Accordingly, I will reduce the sentence for the s 213 offence and allow substantial concurrency overall, particularly where elements or relevant sentencing considerations overlap.

  2. While the offender’s prognosis remains “bleak” I will allow some additional period on parole in the hope that residential or other transitional programmes can be put in place and to allow for accumulation of this sentence on that imposed in the Local Court. Although Simpson is institutionalised the focus must be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R [2012] NSWCCA 217, at [103]: Jackson v R [2010] NSWCCA 162 at [24].

  3. He will need to earn his release. The State Parole Authority will not make a parole order unless it is satisfied that it is in the interests of the safety of the community: s135 Crimes (Administration of Sentences) Act 1999.

  4. Three of the offences here fall into or close to the worst-case category taking into account only objective features. That finding does not mean the maximum penalty must be imposed. I must take into account and properly reflect the utilitarian value of the guilty pleas. I cannot and will not ignore the subjective case for the offender and my findings in relation to moral culpability and the proper application of Pearce v The Queen. All relevant factors must be synthesised.

Starting date

  1. Simpson is now serving his Local Court sentence from 24 October 2021. The practical considerations confronting a sentencing judge when sentencing for multiple offences noted above are compounded when they must be accumulated on an existing sentence of some length. The simple arithmetical addition of the two aggregate sentences, considered separately can result in an aggregate that exceeds what is called for in the whole of the circumstances. I must continue to apply the totality principles noted above to achieve an appropriate relativity between the totality of the criminality and the totality of all the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 Street CJ at 260.

  2. Again, I note that in doing so, I cannot leave the community with a perception that a person who commits a deliberate series of discrete offences can escape effective punishment for offences which follow successively one upon the other: R v Wheeler [2000] NSWCCA 34 at [36]-[37].

Submissions

  1. Both Mr Hibbard, for the offender, and Mr Rollestone, for the Director of Public Prosecutions, provided comprehensive written and oral submissions. On matters of law and principle there was little difference between them.

  2. Mr Rollestone, while accepting that the offender’s moral culpability was reduced did not concede a causal link between his background and the offending. More particularly he noted it does not automatically follow from a finding that an offender's moral culpability is reduced that a sentence will be lower than it might otherwise have been. He stressed the need for community protection citing Ladas v R [2022] NSWCCA 160 – a domestic violence case. He stressed the need for a stern custodial sentence given what was, considered objectively, very serious offending. There is, he submitted, a need to protect the community from the offender, make him accountable, denounce his conduct and recognise the harm done to the community by this series of crimes.

  3. In response, Mr Hibbard, while accepting the seriousness of the offences, noted that the offender did make a concerted effort to get the van off the track. He noted his background and the traumas suffered while in juvenile detention; which has left a mark and compromised his capacity to mature and learn from experience. Here, he said that deprivation and trauma had a profound impact, that does not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [42]-[43].

  4. In discussion I noted that Ladas was not intended to put a gloss on the application of principles derived from Bugmy but that as the majority High Court had noted in Munda v Western Australia [2013] HCA 38, [52] to [58], “mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.”

Synthesis

  1. An offender who has the start in life that Simpson had, does not bear equal moral responsibility with an offender has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. His background has left a significant mark and compromised his capacity to mature and learn from experience. I find that there is a causal link between that background, his drug and alcohol use, his underlying mental health conditions and his continued offending. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his behavioural decisions. 

  2. That does not mean that Simpson bears no moral responsibility, but that background must be considered: R v Millwood [2012] NSWCCA 2 at [69]. Simpson’s moral culpability is less than the culpability of an offender whose formative years have not been marred in the way set out in the material before me: Bugmy.

  3. However, the community also expect that crimes such as this will be punished and punished severely.

  4. Simpson must be released into the community. He will require considerable help. It is in everyone interests he get it. For if he does not get help and if considerable resources are not extended in supervising and monitoring him on release he will offend again.

  5. He is presently serving gaol harder than he has ever done before. He tells me he no longer wants to be in gaol, and he is no longer comfortable there. He has expressed his sincere remorse and regret. I am sure he has promised to himself, as he did me, that he will use this latest experience and the realisation the harm he did (and that it could have been much, much worse) as a catalyst for change. But he had few resources and no skills. He has never lived a lawful life in our community. He has still to deal with many underling traumas. He has a number of psychological conditions that require treatment. He, after he has served the minimum period his crimes demand, will need all the help that can be given to him.

Orders

  1. There will be an aggregate sentence. Each indicated sentence reflects a reduction in the otherwise appropriate sentence of 25% to reflect the utilitarian value of the guilty pleas.

  2. The sentence will commence on 24 October 2022; that is, one (1) year into the sentence imposed in the Local Court.

Indicated sentences

  1. Seq 4 – Drive whilst disqualified (2nd+ offence): 3 months imprisonment. There will be a licence disqualification of 12 months.

  2. Seq 11 – Convicted offender enter land with intent to commit indictable offence (larceny), plus Form 1: 2 years 3 months imprisonment.

  3. Seq 5 – Endanger safety of person on railway: 2 years imprisonment.

  4. Seq 6 – Cause obstruction to railway locomotive: 1 year imprisonment.

  5. Seq 8 – Recklessly damage property, plus Form 1: 3 years imprisonment.

Aggregate sentence

  1. There will be an aggregate sentence of 4 years 6 months to date from 24 October 2022. The non-parole period of 2 years 6 months expires on 23 April 2025, on which date you become eligible for consideration for release to parole. There will be a parole period of 2 years from 24 April 2024. The Aggregate sentence expires on 23 April 2027.

  2. The reports of Ms Duffy and Mr Bembrick should accompany the warrant.

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Decision last updated: 16 December 2022

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Cases Citing This Decision

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Cases Cited

38

Statutory Material Cited

4

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
R v Barrientos [1999] NSWCCA 1
Bugmy v The Queen [2013] HCA 37