Regina v Simon [1999] NSWCCA 224

New South Wales Court of Criminal Appeal 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.

- 9 - 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.