R v Simpson [1999] NSWSC 842

New South Wales Supreme Court CITATION : R v Simpson [1999] NSWSC 842 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70077/98 HEARING DATE(S) : 5/7/99, 9/7/99 JUDGMENT DATE : 20 August 1999

PARTIES : Regina Anthony Lloyd Simpson JUDGMENT OF : Studdert J

COUNSEL : P.J. Barnett (Crown) P.D. Rosser (Prisoner) SOLICITORS : C.M. Olsen (Crown) J.M. Anthony (Prisoner) CATCHWORDS : Criminal law; sentencing; manslaughter; deceased electrocuted as consequence of criminal negligence of prisoner; special circumstances; sentence of nine years penal servitude with minimum term of six years ACTS CITED : Criminal Procedure Act Crimes Act Nydam v The Queen (1977) VR 430 at 445 Wilson v The Queen (1991-92) 174 CLR 313 R v Hill (1981) 3 A Crim R 397 CASES CITED : R v McDonald (unreported, NSWCCA, 12 December 1995) R v Previtera (1998) 94 A Crim R 76 R v Troja (unreported, NSWCCA, 16 July 1991) R v Maguire (unreported, NSWCCA, 30 August 1995) DECISION : See para 46

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Friday 20 August 1999

070077/98 REGINA v ANTHONY LLOYD SIMPSON SENTENCE

1 HIS HONOUR: The prisoner, Anthony Lloyd Simpson, is convicted of the manslaughter of Michael John Priest. The prisoner pleaded not guilty to murder but guilty to manslaughter upon arraignment before Mr Justice Barr on 25 May 1999. The Crown accepted the plea in full satisfaction of the charge in the indictment and the prisoner was remanded for sentence in Newcastle on 5 July 1999. Because a trial was to commence on that date, I further remanded the prisoner until 9 July when he adhered to the plea previously entered. I heard evidence and submissions on 9 July and then remanded the prisoner in custody for sentence. 2 The death as a consequence of which the subject charge arose occurred on 12 March 1998 in the backyard of premises at Tarean Road, Karuah. Those premises comprise a dwelling house, and before he separated from his wife some months prior to 12 March 1998 the prisoner lived there with his wife and children. Indeed, even following the separation, it seems that the prisoner remained on good terms with his wife and used to visit her frequently at the former matrimonial home. As a matter of daily routine, he used to go there to see the children off to school. However, following the separation the prisoner lived with his mother whose home was a short distance away at Franklin Street, Karuah. 3 The prisoner had growing in the back garden of the former matrimonial home some marijuana plants. In order to protect these plants from being stolen or damaged by animals, the prisoner put up chicken wire fencing and he also put in place electrified wiring which calls for a detailed description. 4 The plants were growing in a bed near the back fence. That fence was of corrugated iron construction and there was a timber cap along the top of the iron. Behind that fence was vacant land, and immediately behind that fence was a further fence comprising four strands of barbed wire fed through upright timber posts. The other three sides of the bed in which the plants were growing were fenced with chicken wire which the prisoner introduced to about waist height. The prisoner also put in place a chicken wire roof supported on posts, with a gap between the vertically positioned chicken wire and the horizontally positioned chicken wire of about thirty centimetres. The prisoner secured a coaxial cable to the capping on the back fence by nailing it down. The protective covering on that cable was removed by the prisoner at intervals of approximately six centimetres along its length on the top of the timber cap. That cable was energised by means of an extension lead that ran from a power point within the house across to a shed near the garden bed in question. A sheathed two core cable was joined to the end of the extension lead and this joined cable extended from the garden shed across to a star picket support for the chicken wire fence. It was secured to that picket and stretched from there across to the iron fence cap where there was a T junction and it then stretched in each direction along the fence cap. The cable from the shed was not fully insulated. There were two breaks in the insulation where there were joins and the wire was exposed at each of these joins for some five to ten millimetres. This cable from the shed ran midway along the gap between the horizontally erected chicken wire and the vertically erected chicken wire, stretching from the star picket support to the corrugated fence boundary. The 240 volt power supply from the house was produced simply by plugging in the lead in the house and activating the switch. 5 The horizontally placed chicken wire was only introduced shortly before March 1998 but the remainder of the system described had by then already been in place for some three years. 6 It seems that under cover of darkness early on the morning of 12 March 1998, the deceased entered the backyard of the premises in which the cannabis plants were growing. It would appear that the deceased had travelled to Karuah with some friends and he entered the backyard by stealth for the specific purpose of taking the plants. Tragically, in the course of his endeavours to remove the marijuana plants, he was electrocuted. 7 The deceased, of course, had no right to enter onto this property where he met his death, and he went there for an unlawful purpose. However, those circumstances afford the prisoner no defence, as he has acknowledged by his plea. 8 The prisoner gave evidence, which I accept, that he found the deceased in an upright position with his face on the horizontally located chicken wire. Having considered the report and evidence from Mr Laurence, an electrical inspector for Energy Australia, and having also considered the post mortem report of Dr Botterill, I find beyond reasonable doubt that the deceased died from electrocution and that he was electrocuted as a consequence of contact with an exposed part of the wiring that stretched within the gap in the chicken wire such as I have described. 9 The deceased's friends waited for him to return to the car for some time but eventually left the area unaware that the deceased had been electrocuted. The prisoner discovered the body when he entered the backyard after daylight on 12 March 1998, and having discovered the body in the position he described, he panicked and resolved to dispose of it. The prisoner wrapped the body in a quilt and carried it in his motor vehicle to bushland in the Swan Bay area where he dumped it. 10 The deceased's friends returned to the area of Karuah looking for him and on 13 March, in the belief that he may have been captured and held, these friends vigorously questioned the occupant of a house near that owned by the prisoner and his wife. This prompted that occupant to ring the police. Shortly after a police officer arrived the prisoner, who presumably saw the police officer nearby, made a request to that officer that he interview the prisoner. Subsequently the prisoner confessed to having found the deceased near his plants and explained that he panicked and took the body to the Swan Bay area. The prisoner later took police to that area and the body was recovered. The prisoner also showed the police where the plants had been growing in the backyard and the area where the wiring system had been placed. Following discovery of the body of the deceased, the prisoner had dismantled the wiring system but he later co-operated with Mr Laurence from Energy Australia in describing how the system had operated. 11 The acceptance by the Crown of the plea of guilty to manslaughter acknowledges that the prisoner did not intend to cause the death of the deceased nor did he intend to cause him grievous bodily harm. It acknowledges further that the prisoner had not acted with reckless indifference to human life. The prisoner is not to be punished as though any of those elements, were present. Nevertheless, the prisoner has caused a death and has caused that death in circumstances which demand close attention and assessment. 12 For conduct to constitute manslaughter by criminal negligence, it must fall so short of the standard of reasonable care relevant to the circumstances, and involve such a high risk that death or grievous bodily harm will follow, that it merits criminal punishment: see Nydam v The Queen (1977) VR 430 at 445 and Wilson v The Queen (1991-92) 174 CLR 313 at 333. I am satisfied beyond reasonable doubt that the prisoner's conduct in putting in place the wiring system described, and in employing the 240 volt power supply source in the manner described, amounted to criminal negligence. Indeed, the prisoner by his plea has acknowledged as much. 13 In assessing the gravity of what the prisoner did I have been greatly assisted by the evidence given by Mr Laurence. Mr Laurence was in Court when the prisoner gave evidence describing the relevant electrical system. Mr Laurence said that the description given by the prisoner in evidence was very much as the prisoner had described it to Mr Laurence when he attended the scene of the fatal event for the purpose of preparing his report of 1 April 1998. Mr Laurence gave the following evidence (transcript p 50-51), assessing the system which the prisoner had put in place: "Q. What do you say about that particular portion of the apparatus, the wiring, the exposed area running across the top of that fence…