Regina v Simon

[1999] NSWCCA 224

CITATION:	Regina v Simon [1999] NSWCCA 224
FILE NUMBER(S):	CCA 60128/98
HEARING DATE(S):	4 August 1999
JUDGMENT DATE:	4 August 1999
PARTIES :	Regina v Shane SIMON
JUDGMENT OF:	Levine J at 22; Smart AJ at 1-21, 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0005
LOWER COURT JUDICIAL OFFICER:	Nash DCJ

COUNSEL:	P G Berman for the Crown
SOLICITORS:	S E O'Connor for the Crown Applicant in person
CATCHWORDS:	Criminal law; sentencing; need to take into account substantial restrictions on liberty in rehabilitation programme.
ACTS CITED:	-Nil-
CASES CITED:	-Nil-
DECISION:	Sentenced varied; Minimum term reduced.

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IN THE COURT OF
CRIMINAL APPEAL
60128/99

LEVINE J
SMART AJ

WEDNESDAY 4 AUGUST 1999

REGINA v SHANE SIMON
JUDGMENT

1 SMART AJ : Shane Simon seeks leave to appeal against the severity of a sentence comprising a minimum term of three years and an additional term of two years six months for armed robbery. The sentencing judge anticipated that the applicant would spend about the first year of his additional term at a drug rehabilitation centre.
2 On 21 October 1997 the applicant entered a service station at Eastlakes, holding a blood filled syringe, approached the console operator, pointed the syringe at him and demanded money. Upon hearing loud voices in the shop area of the service station, the owner entered the shop area. The applicant saw the owner and threatened him with the syringe. He renewed his demand for money to the console operator who removed the cash drawer from the register, placed it on the counter and stepped back. The applicant removed some cash and left.
3 During the time the applicant was in the service station, he threatened both victims with the blood filled syringe. He attempted to conceal his face with a t-shirt tied around his neck. This t-shirt fell away several times, allowing the victims to see his face. The incident was recorded on video tape by a surveillance camera. The amount stolen and later recovered was seventy-five dollars.
4 During his ERISP interview, the applicant made full admissions and was co-operative. He stated that he was affected by a drug called Rohypnol. No person was physically injured during the robbery but both the console operator and the owner were severely frightened and shocked. The applicant pleaded guilty at the Local Court on 17 December 1997 and was committed for sentence.
5 The applicant told the police that he had a fair few personal problems. His wife had to meet a few fines and their home had been broken into and everything had gone. He asked a man for some Valium earlier that day to calm him down and was given some Rohypnol tablets. They made him a different person and he had no fear. He said that he was not a violent person and had never tried to do a hold up or a robbery. The applicant explained that he also had some financial troubles. He stated that he really regretted what he had done. The judge regarded the offence as objectively very serious and it was.
6 The applicant has an extensive record. He has spent much time in gaol. The offences include matters of dishonesty, malicious injury, traffic offences, drug offences and assaults and steal from the person. His record does not include any offences of the gravity of the present one. The applicant was born on 7 July 1965.
7 The pre-sentence report discloses that the applicant experienced a grossly disturbed family background. Both parents deserted the family at different times during his childhood. The children were neglected with neither parent demonstrating any interest in or feeling for family members. The applicant was in institutional care for a lengthy period and he was made a state ward at age fourteen. He experienced extreme educational and verbal skills retardation. In 1990 he was described in a psychological report from Maitland Gaol as semi-literate but as having responded well to remedial teaching.
8 The Probation and Parole officer has reported:

"The background problem relating to the commission of the offence was Mr Simon's unresolved use of drugs. He has stated that at the time of committing the offence, he was affected by the drug Rohypnol. He was also on methadone in order to control his heroin addiction. Mr Simon stated that he was concerned over traffic fines that his wife owed. He thought that if anything happened to her he might lose his daughter to the care of the Department of Community Services. He claims that in a frustrated and confused state of mind he committed what he now understands to have been a desperate and foolish criminal act.

Assessment

In a clear minded and drug free condition, Mr Simon presents as a straightforward and reasonable man. He is pleasant of manner and conversation and seemingly devoted to his wife and two-and-a-half year old daughter. Unemployment has continued to be a major problem for him with its attendant financial difficulties. Coupled to this is his drug problem. He has attempted to control his drug addiction with a methadone programme. Mr Simon is in the process of withdrawing from methadone. He has explained that he has not been to a full time drug rehabilitation programme and that such a course could be to his benefit. Certainly controlling his drug addiction is of paramount importance to his stability of lifestyle."
9 The report of E Robson, the gaol psychologist, reveals that the applicant had a very unhappy and loveless childhood. He spent extensive periods in institutions and some short periods in foster care. With the exception of the period from September 1994 to October 1997 he has spent very little of his adult life out of gaol. He has very little by way of work skills and experience. He was emotionally immature and has great difficulty in coping with stressful situations.
10 The psychologist expressed the view that the applicant was institutionalised and lacked initiative, confidence and self-responsibility. He reported:

"The current offence could be seen as a highly dysfunctional way of meeting his family responsibilities. The impulsiveness he displayed is a habitual reaction to life stressors.

If Mr Simon is to adapt to a lawful lifestyle in the community, he will need extensive and ongoing support. There are several major issues from his past that he needs to address. The first is that of his rejection and abandonment and his subsequent feelings of self loathing and hopelessness. Connected to his institutionalisation is the issue of responsibility for himself and for others. He also needs to look at his lifestyle outside of institutions - herein are areas such as basic lifestyle skills and relationship/social skills. Mr Simon also has drug and alcohol issues that will need to be addressed if he is to turn his life around. He could well benefit from admission to a drug and alcohol rehabilitation programme.

His MMPI-2 profile suggests that his long-term personality problems may impede his psychological treatment. People with his profile often find it difficult to trust the therapist enough to establish a treatment relationship. However, my experience was that my rapport with Mr Simon improved over the course of assessment. I suspect that he is capable of a productive therapeutic relationship. His psychological growth would require long term support, and would be a slow, painstaking process. He would probably respond better to behavioural management therapy than any insight-orientated psychological treatment.

The centre place of Mr Simon's emotional well-being, and perhaps even his physical survival, are his wife and daughter. These seem to be the only relationships of any permanence or commitment that he has ever experienced. They represent the platform upon which he could begin to value his own life. Although having very little insight into himself, Mr Simon is aware that at some point `I'm going to have to stop looking backward and start being positive and looking forward.'"

11 The applicant has been through some very difficult times. The accidental burning of his daughter much affected him. At the sentence hearing, Nash ADCJ spent some time trying to ascertain why the applicant behaved as he did and his personal situation. The judge was not impressed with his efforts to obtain work and his reluctance to accept personal responsibility, his explanation as to why he committed the crime and his lack of realisation of the effects of his conduct upon the victims. The judge also discussed with the applicant, the need for him to undergo a drug rehabilitation programme and accept professional help.
12 In written submissions on the applicant's behalf, it was contended that what he needs is help and encouragement rather than punishment and that he wants to be with his wife and daughter in their own home and have employment.
13 The applicant has made a number of complaints about the remarks on sentence of the judge and his approach and he has reiterated in the written submissions the difficulties he was facing, including a shortage of money, no permanent home in which to stay, the need to look for and obtain other accommodation, the possibility of his wife going to gaol for non-payment of fines and his daughter being in pain and going to hospital. He also mentioned that he was in a drug programme. The circumstances and the worry led to him taking the drugs and then committing the offence.
14 He stated that since he has been in gaol he has had a number of moves and been unable to receive the rehabilitation assistance and other help he needs. It seems that he has had some help. He acknowledges that he will go to the William Booth programme on completion of his minimum term. The applicant emphasised that the amount stolen was only seventy-five dollars. It was also emphasised that he was trying to change his ways and that with adequate support he could do so. He was anxious to overcome his drug problem and to improve his education. He was prepared to try very hard. He urged the Court to appreciate the full effect which mind altering drugs can have.
15 The applicant's written submissions were wide ranging and dealt extensively with the best way to treat and rehabilitate drug offenders and how disadvantaged people should be treated. It is not open to this Court to implement a social policy of its own dealing with these matters.
16 The subjective features of this case reveal a very sad situation. The difficulty is that the armed robbery was frightening to the victims. In such a case deterrence is an important consideration.
17 The applicant pressed that it was desirable that he begin his twelve month rehabilitation programme as soon as possible. That argument has considerable force. However, there has to be proper punishment. With the applicant spending a full year in a rehabilitation centre after his release from prison, the term of his reduction of liberty is significantly extended. He intends, and the judge envisaged, that he would go to the William Booth Institute and undertake the rehabilitation programme at that institute. As is well known, it does involve considerable restriction of personal liberty.
18 This Court cannot make any direction as to the applicant attending the William Booth Institute on his release. It can and does make a recommendation to that effect. The Probation and Parole Authorities can refrain from granting parole unless the applicant indicates his willingness to attend that Institute or a comparable one and complete the course and make it a condition of any parole that he do so.
19 In all of the circumstances, I think that the sentence actually imposed was excessive, bearing in mind that it is envisaged that the applicant will spend about a year in the William Booth Institute or other centre approved by the Probation and Parole Authorities.
20 Accordingly, I propose that leave to appeal be granted, that the appeal be allowed and that in lieu of the sentence imposed, the applicant be sentenced to a full term of five years three months, commencing on 19 January 1998, with a minimum term of two years three months, commencing on that date and expiring on 18 April 2000. The additional term of three years will commence on 19 April 2000.
21 It is the recommendation of the Court that the applicant should, on completion of the minimum term, attend the William Booth Institute (or other centre approved by the Probation and Parole Authorities) and complete the full rehabilitation course and comply with the directions of the officers of that institute. It is a further recommendation that it should be a condition of any release that the applicant so remain and complete the course and comply with the directions of the officers.
22 LEVINE J : I agree and the orders will be as proposed by Smart AJ.
23 SMART AJ : Mr Simon do you understand what's happened? We have reduced your minimum term to two years three months. The full term of five years three months remains. If everything goes well for you, then at the end of the two years three months you would transfer from the prison system to the William Booth Institute to complete your course of rehabilitation and then you've got to stay there, put up with the hard parts of it and then if you complete that successfully, then that should stand you in good stead. Do you understand what's happened?
24 APPLICANT : Yes thank you very much.

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