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… A. Potentially very, very dangerous. Q. Why is that? A. Well, it is open to a fatality, just by exposing that attached cable, and earthing out with the knees or feet, it can be very fatal. Q. And that earthing it would be caused I suppose by a person not only going in by trying to get over the fence? A. Yes. Q. But trying to go out that way too? A. Yes, certainly. Q. In relation to the situation of the wire meshing roofing-- A. Yes. Q. The three or two side wire mesh fences and the wire mesh fence at the front, with this cable, for want of a better description, running through, with the two exposed joins, as I understand the prisoner's description, at mid point a 30 millimetre gap between the height of the wire fencing and the height of the roofing-- A. Yes. Q. What do you say about that, the danger that it represents? A. Well, the same as the wire on the back fence; it is open up to a fatality. HIS HONOUR: Q. What did you say, Mr Lawrence? A. It is very, very dangerous and open up to a fatality. BARNETT: Q. And if one was standing on the earth and just accidentally put one's hand around that exposed area of wiring, what would be the effect? A. Well, it would be a fatality. Q. Just in relation to and only going to the potentiality of the danger in the overall situation, the wood across the top of the back fence, would that provide a degree of insulation between the metal fence and the exposed wires? A. Depending on the weather, whether it had been raining or not, but yes, quite a degree of insulation, yes. Q. But once the wood was moist-- A. Moist, a different matter. Q. Is that because the moisture itself is a conductor? A. That is right, yes." 14 I accept the evidence of Mr Laurence as set out above. 15 As a qualified electrician, and as the person who set up this offending system, the prisoner ought to have appreciated the dangers identified by Mr Laurence. Indeed, he expressly acknowledged in cross examination an awareness of the possibility of heart damage from exposure to an electric shock: "Q. See, no matter how short a time one receives a shock for, the result is dependent on that person's physical health, isn't it? A. Yes. Q. One of the things that a shock can do is, amongst other things, it can just cause a heart attack and kill you, isn't it? A. Yes. Q. And your training tells you, you have been warned that can happen very quickly from an electric shock, haven't you? A. Yes." 16 The prisoner said that the uninsulated section where the deceased was electrocuted was not uninsulated by design. Whilst I have some reservations about the prisoner's evidence to that effect, I cannot find beyond reasonable doubt that the lack of insulation in that section stretching to the back fence was a deliberate part of the protective system. Nevertheless, the danger that that section presented ought to have been recognised by the prisoner. He certainly was aware of the lack of insulation there because it was he who tied the uninsulated wires together. The assertion that he could not afford a piece of conduit at a cost of $11 I cannot accept. The prisoner had had three years to accumulate the sum of $11 that would have been sufficient to buy appropriate conduit at the local hardware store, such as would have insulated that section. 17 The prisoner did give evidence that he did not expect that the cable extended under the chicken wire roof would be pulled up or that the wire roof would be pulled down so as to contact the cable, but in my opinion that this may occur should have been appreciated by the prisoner, particularly considering that he had in contemplation that an intruder may try to steal the plants growing in the enclosure. In his examination in chief, the prisoner gave the following evidence (Transcript p 31): "Q. With the power on and with the wire connecting the house to the back fence, would the wire roof of the enclosure have been live? A. No. Q. That was because of the gap between the wire roof and the naked joins? A. That is correct. Q. And were those naked joins positioned within the enclosure itself, and not in the ordinary course in contact with the wire perimeter fence? A. That is correct. Q. Now if the power were on and the roof wire were depressed against the naked wire join, that would render the roof live, would it not? A. That is right. Q. Or alternatively if somebody had inadvertently, by movement of some part of their body, caused the naked wire join to lift against the roof, that would also render the roof live? A. That is correct." 18 Later, in cross examination (transcript p 41), the prisoner gave the following responses to the following questions in point: "Q. What this man seems to have done on your reconstruction, and I am not criticising you for it, is indeed come into contact with the wires in some process of trying to lean in and get at those plants, would you agree with that? A. That is possible, yes. Q. Done the very thing that I suggested to you could happen to someone who had to manipulate the roofing and the front fence to get at the plants, correct? A. Yes, it is possible. Q. You have, with due respect, drawn a diagram of somebody who is actually leaning in towards where the plants are, much as I am now? A. Yes. Q. With his arms extended forward as one would anticipate someone trying to pull plants out? A. Yes. Q. Who has, in doing that process, obviously in the dark, pushed - at least had his head or chin come into contact with the roofing wire? A. Yes. Q. And at the same time come into contact with the ground? A. Yes. Q. And we unfortunately know the result, don't we? A Yes." 19 Having considered the evidence of Mr Laurence and the evidence of the prisoner, my assessment of the objective features I have reviewed is such that I must regard this case as being a very serious case of criminal negligence. 20 This was no transient danger the prisoner had created. It existed as part of an installation in place for three years except for the chicken wire roof. The installation had as one of its objectives the prevention of theft of the crop by unwanted visitors. The prisoner knew the particular area the deceased came in contact with was not insulated, yet he did nothing to insulate it over the three year period it had been in place, even after the recent positioning of the chicken wire roof. The prisoner is only, of course, to be punished for the crime that he committed on 12 March 1998 but the circumstances in which he had earlier created and employed this wiring system are relevant in the assessment of the level of his culpability for this crime. 21 Pursuant to s 21 of the Criminal Procedure Act, I have been asked to take into account a further offence when passing sentence upon the prisoner, namely the cultivation of the five cannabis plants grown by him. I accede to that application and will sentence the prisoner accordingly. 22 I turn to the subjective features of this case. 23 The prisoner was born on 19 July 1960, so that he is now thirty-nine years of age. He is married and his evidence was that his separation from his wife is not permanent. Indeed, the prisoner and his wife renewed their marriage vows in December 1998. There are two children of the marriage, a twelve year old daughter and an eleven year old son. 24 The prisoner's employment record is that he completed his trade qualification as an electrician in 1989 but in more recent years prior to the commission of this crime he was employed as a driver, although he had been unemployed for six months before March 1998. He had injured his back working for Linfox some time ago and a report from Dr Isaacs, orthopaedic surgeon, recorded that specialist's assessment of the back injury and has been considered by me. More recently the prisoner had been doing casual work as a driver, but was hoping to find regular work driving articulated vehicles and was prepared to go to Oberon to obtain regular employment. 25 The prisoner has some criminal record. He was charged with supply, possession and smoking Indian hemp in 1979 and the sentence was deferred on his entering into a recognizance for three years. In 1983 he was given a further recognizance in relation to an offence of cultivating Indian hemp. Later the same year he was fined for receiving and in the following year was placed upon a further recognizance for using heroin. There was a further fine for receiving in March 1985 and for possession of heroin. In 1991 he was fined on a receiving charge, having come before the court on a first instance warrant. It may well be, as Mr Rosser submitted, that the offence for which he was then fined had been committed years previously. 26 The prisoner has abused drugs in the past and was doing so in the period to which his early criminal history relates. He used cannabis and became involved with heroin in his late teens. He has been on a methadone programme, and indeed was successful in the pursuit of a programme some six or seven years ago. After the stress associated with the death of the deceased, the prisoner lapsed into heroin use again before seeking help and being placed on a methadone programme by Dr Martin, from whom a report was tendered on the prisoner's behalf. The prisoner is presently on that methadone programme. 27 A pre sentence report dated 1 July 1999 was placed before the Court. The probation and parole officer who prepared the report said, by way of summary: "Variously depicted by others as a man who has not made a significant effort to use his skills or resources the offender now presents as a man whose life is now beyond his control for a number of reasons. Being charged with the offence has had a serious impact upon his mental well being and that of his partner. Whilst he has sought professional assistance from appropriate agencies he nevertheless has reverted to patterns of behaviour characteristic of previous periods of instability. If indeed he has only returned to the use of illegal addictive and legal substances in more recent times it has exacerbated the level of instability in his life and it would seem to have reduced his capacity to deal effectively with any personal issues. Undoubtedly, his, and his partner's concerns, for the welfare of the family unit are sincere, but it is not unreasonable to assume that he has only further jeopardised their position by his actions in this respect. Reservations are therefore held as to the offender's capacity to appropriate any benefit the Court may extend to him in its deliberations with respect to his personal circumstances. Nevertheless it is of note that Mr Simpson has not come under Police notice since 1991, and has not been the cause for any undue concern within the local community until being charged with the current offence." 28 I would add that the author continued that the prisoner was assessed as unsuitable to serve a sentence by way of periodic detention and that there was no suitable agency to permit of the imposition of a community service order. In my opinion, however, neither of these options addressed by the probation and parole officer would be appropriate in this case in any event. The gravity of this offence plainly demands full time custody. 29 The prisoner is to be given credit for his plea upon arraignment. His conduct after he first discovered the body of the deceased in removing it from the backyard was reprehensible but he is to be given credit for his co-operation with the police so soon after the commission of this crime. I am prepared to accept that the prisoner acted in panic in treating the body of the deceased in the manner in which he did. Not only has the prisoner's behaviour facilitated the administration of justice in relation to the prisoner's crime, but it is also reflective of contrition and I accept that the expressions of contrition by this prisoner in Court and earlier to his parish priest have been genuine. I accept that the prisoner has been much troubled by the consequences of his criminal behaviour. 30 I have regard to the evidence favourable to the prisoner that has been given by Father Saunders and by Mrs Elliot-Ranken. There have also been a number of references reflecting well of the prisoner. 31 The prisoner has performed some useful community work in the Clean Up Australia campaign, in Meals on Wheels and in assisting young people in sporting and recreation activities. 32 Two medical reports dealing with psychiatric assessment have been placed before the Court, one by Dr Walker, whose report is dated 5 March 1999, and the other by Dr Westmore, whose report is dated 28 June 1999. I have considered those reports and I note that the prisoner is suffering from a form of depression in response to his recognition of his crime and the implications to himself and his family. 33 Mr Rosser submitted that I should find special circumstances in this case. In my opinion there are such circumstances. The prisoner is to serve a prison sentence for the first time, and he is going to require an extended period of supervision when ultimately he is released from custody in the interests of his rehabilitation and with a view to guarding against a relapse into drug abuse. 34 The prisoner's rehabilitation is however only one of the matters I am called upon to consider in determining an appropriate sentence. I must impose a sentence which reflects the gravity of the crime and which makes appropriate allowance for considerations of deterrence. As far as deterrence of the prisoner himself is concerned, I consider it unlikely that he would re-offend again in like fashion. However, the deterrence of others who might to tempted to offend is an important consideration in this case. 35 The denunciatory role of sentencing is also an important matter here. A human life has been taken and unlawful homicide has always been recognised by the law as a most serious crime: see R v Hill (1981) 3 A Crim R 397 at 402. See also R v McDonald (unreported, NSWCCA, 12 December 1995). In the latter case in the judgment of the court, it was said: "The protection of human life and personal life is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 36 Evidence has been placed before the Court from a psychologist, Ms Limnios, and that report addresses the impact of the death of the deceased upon his mother and his stepfather. That evidence has been received under Pt 6A of the Criminal Procedure Act. As R v Previtera (1998) 94 A Crim R 76 makes clear, it is not appropriate for me to take account of the subject matter of that report in determining a proper sentence. Nevertheless, a reading of the report evidences the serious consequences of the death of the deceased upon the lives of his mother and his stepfather, and the Court expresses its condolences to the deceased's close relatives. It is to be hoped that their grief will be softened by the passage of time. 37 Mr Rosser submitted that I should approach the imposition of an appropriate sentence here by regarding the behaviour to be punished as criminal negligence rather than causing death by an unlawful and dangerous act. I have earlier expressed my finding in that respect although I do not consider that ultimately I am assisted in arriving at an appropriate sentence by placing what the prisoner did into one category or the other. In assessing the prisoner's crime I must give appropriate weight to all the objective features of the case and also to the subjective features. 38 I have considered many decisions, both reported and unreported, before determining what sentence I should impose upon the prisoner. However I have not been greatly assisted by my reading in this respect. It is trite to observe that the range of sentences for the crime of manslaughter is very broad indeed and it follows from this that it is difficult to derive assistance from sentences passed for the offence of manslaughter in other cases, even within the same category of manslaughter. So much depends upon the particular circumstances of each case. 39 There have been many judicial statements to this effect. For instance, in R v Troja (unreported, NSWCCA, 16 July 1991), Kirby P, with whom the other members of the court agreed, said at p 3: "This aspect of sentencing law, as it applies to a person convicted of manslaughter, presents a particular difficulty to an appellate court where it is invited to review the sentence imposed by the trial judge in the exercise of that judge's discretion. In the vast range of circumstances giving rise to such a sentence, it is difficult to perceive any clear pattern or coherent standards. As Wood J himself observed, the sentence which is appropriate to each case of manslaughter depends ultimately upon its own special circumstances. These considerations do not, of course, withdraw the facility of an appellate review for a prisoner convicted and sentenced of manslaughter. But they do make the task of the sentencing judge most difficult. They render the legitimate range of sentences available to him or her greater than is the case with most other offences…" 40 I have found no case with facts similar to those in this present case. 41 To classify the crime as manslaughter by criminal negligence does not, of itself, assist in arriving at an appropriate sentence. There will be cases in which manslaughter by criminal negligence will attract a heavy sentence. This was recognised in the judgment of James J, with whom the other members of the court agreed, in R v Maguire (unreported, NSWCCA, 30 August 1995). In that case, his Honour said: "In some cases of voluntary manslaughter where, apart from the partial defence of provocation or diminished responsibility, the prisoner would have been guilty of murder but the Crown has not succeeded in disproving either provocation or diminished responsibility, a heavy sentence will be appropriate. But there will also be cases of involuntary manslaughter, that is cases of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence, where a heavy sentence will also be appropriate…" 42 I do not consider it would be useful to record in these reasons the sentences imposed in other cases to which my research has taken me. Nor, whilst I have not ignored such statistics, do I consider it would be useful to record statistics as to the sentences imposed in other cases of manslaughter, having regard to the consideration to which Kirby P referred in Troja. 43 Mr Rosser drew attention to s 49 of the Crimes Act and in particular to s 49(1): "(1) Any person who: (a) places or sets or causes to be placed or set, any trap, device or thing (whether its nature being electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person; or (b) knowingly permits any such trap, device or thing to continue to be placed or set, with the intent to inflict grievous bodily harm shall be liable to imprisonment for five years." 44 Mr Rosser submitted that the above sub-section, providing for a maximum penalty of imprisonment for five years, affords some pointer as to the gravity of the present offence. There is, he submitted, an essential element in the offence under s 49 absent in the present case, namely the intent to inflict grievous bodily harm. Hence he submitted the present offence is necessarily less serious than an offence under s 49. 45 I do not accept that submission because there is absent from the offence under s 49 an element present in the present case, namely that here the prisoner caused the death of a person by reason of the system he set up and continued to use. 46 I have concluded that I should impose a total sentence of nine years penal servitude. In so concluding I take account of the offence on the schedule. In structuring the sentence, I bear in mind the special circumstances which I have found to exist. In the result I pass sentence as follows: I sentence the prisoner to a minimum term of six years penal servitude commencing on 9 July 1999 and to expire on 8 July 2005 and an additional term of three years to commence on 9 July 2005 and to expire on 8 July 2008. I specify 9 July 2005 as the first date upon which the prisoner is to be eligible for release on parole. ********** Last Modified: 08/23/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.