New South Wales Court of Criminal Appeal CITATION : R v SIMON [1999] NSWCCA 418 FILE NUMBER(S) : CCA 60507/98 HEARING DATE(S) : 15 September 1999 JUDGMENT DATE : 15 September 1999 PARTIES : REGINA v Edward Roy SIMON JUDGMENT OF : Wood CJ at CL at 24; Simpson J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0363 LOWER COURT JUDICIAL OFFICER : Mitchelmore DCJ COUNSEL : R D Ellis - Crown G P Craddock - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : ACTS CITED : Correctional Centres Act 1952 Crimes Act 1900 R v Fernando (1992) 76 A Crim R 58 R v Perez unreported, NSWCCA 11 December 1991 CASES CITED: R v Hamilton (1993) 66 A Crim R 575 R v Church unreported, NSWCCA 6 November 1998 R v Bell unreported, NSWCCA 29 September 1997 DECISION : Leave to appeal granted, appeal allowed, applicant resentenced IN THE COURT OF CRIMINAL APPEAL 605507/98 WOOD CJ & CL J SIMPSON J 15 September1999 REGINA v Edward Roy SIMON Judgment 1 WOOD CJ AT CL: I will ask Justice Simpson to deliver the first judgment. 2 SIMPSON J: The applicant seeks an extension of time in which to seek leave to appeal a series of sentences imposed on him by Judge Mitchelmore in the District Court on 20 September 1996. No objection having been raised by the Crown, this court granted the extension of time. 3 The applicant was sentenced in relation to a series of offences which were committed in December 1995 and January 1996. The first offence was of escaping lawful custody committed on 31 December 1995. The applicant was an inmate at the Industrial Training Centre Long Bay. He failed to report at a muster. How he escaped has not been determined. The maximum penalty applicable to the offence is penal servitude for ten years which, by s 34(2) of the Correctional Centres Act of 1952, must be imposed cumulative on all previous sentences imposed by the court or to which the inmate is subject. 4 At the time of his escape the applicant was serving a sentence for assault occasioning actual bodily harm. The sentence was of four years made up of a minimum term of two years and six months and an additional term of one year and six months. So far as can be ascertained from the material before this court, the minimum term expired on 30 May 1998 and the additional term on 30 November 1999. Judge Mitchelmore imposed a fixed term sentence of twelve months which he specified to commence on 24 May 1998. Although it seems that date was provided to him by counsel during the course of debate, it is not clear to me where that date is drawn from. It does not seem to me to be correct. It is, however, an error of only a few days which can readily be corrected. In my view, the sentence imposed for escape should commence on 30 May 1998. 5 The remaining offences were all committed as part of the single enterprise spanning the evening of 5 January and the morning of 6 January 1996. 6 Following his escape the applicant went to the Kings Cross area. He forced entry into a motor-vehicle using a screw driver and he took and drove the vehicle. This resulted in a charge of stealing a motor-vehicle, brought pursuant to s 154A of the Crimes Act 1900, exposing him to a maximum penalty of penal servitude for five years. He forced entry into at least one other vehicle in which he stole property. This resulted in charges of malicious damage to the property, brought under s 195 of the Crimes Act, and larceny, a charge brought under s 117 of the Crimes Act, each of which carries a maximum penalty of penal servitude for five years. He was charged with possession of implements capable of being used to enter a conveyance under s 145, a section which prescribes a maximum penalty of penal servitude for seven years 7 He then returned to the car he had originally stolen before approaching a couple walking in the street. He snatched the shoulder bag of the woman and ran off, then used the motor-vehicle to escape. He was charged with stealing from the person under s 95 of the Crimes Act, an offence for which the maximum penalty prescribed is penal servitude for fourteen years. 8 Two police officers who were nearby signalled the applicant to stop. On seeing them he accelerated and drove directly at them forcing them to take cover between parked motor-vehicles. This behaviour gave rise to a charge of using an offensive weapon to avoid lawful apprehension, brought under s 33B of the Crimes Act, for which a maximum penalty of penal servitude for twelve years is prescribed. 9 Judge Mitchelmore sentenced the applicant as follows. On count (1), escape lawful custody: a fixed term of penal servitude of twelve months, specified, as I said, to commence on 24 May 1998. On counts (2), (3), (4) and (5), the charges of stealing a motor-vehicle, possession of implements, malicious damage and larceny: a fixed term of penal servitude for twelve months commencing on 6 January 1996 and expiring on 5 January 1997. On count (6), stealing from a person: a fixed term of penal servitude for five years commencing on 6 January 1996 and expiring on 5 January 2001. On count (7), using offensive weapon to avoid lawful apprehension: a total term of penal servitude for eight years, made up of a minimum term of six years commencing on 6 January 1996 and an additional term of two years. 10 It will be seen from the sentence in relation to count (7) that his Honour declined to find any special circumstances justifying departure from the statutory ratio that would justify it. 11 It will be seen that all sentences other than that imposed in relation to the escape charge were specified to commence on the day of the applicant's arrest and to be served concurrently, and all, including that imposed in relation to the escape charge, are subsumed within the minimum term imposed in relation to count (7). 12 The applicant was born on 29 September 1972. He was twenty-three years of age at the time of the offences. He has a lengthy criminal record which commenced in 1987 with a break enter and steal offence for which he was dealt with in the Children's Court. There are numerous offences of dishonesty and a number of offences of violence, including one of sexual intercourse without consent and one of indecent assault. He was, as I have mentioned, serving a sentence of four years at the time of his escape, this being imposed in respect of a charge of assault occasioning actual bodily harm. 13 The applicant is of Aboriginal descent. His father gave evidence in the sentencing proceedings. He described the applicant's unhappy childhood, largely the result of his, that is the father's, own alcoholism and violence. In relation to this, the sentencing judge said that he took into account the principles stated by Wood J, as he then was, in R v Fernando (1992) 76 A Crim R 58. 14 He took account of the applicant's plea of guilty entered after a contested committal but entered promptly when the indictment in its final form was presented to the applicant or his legal advisers. 15 It is unnecessary to detail the matters mentioned by his Honour in his sentencing remarks because it is conceded that they disclose no overt error of law. The argument that is put in relation to the overall sentences is that they were manifestly excessive. In this regard, particular attention was paid to the lengthiest sentence imposed in relation to the s 33B charge. The attention of this court was drawn to a number of precedents for sentencing under this section. These were: R v Perez unreported, NSW Court of Criminal Appeal 11 December 1991; R v Hamilton (1993) 66 A Crim R 575; R v Church unreported, NSW Court of Criminal Appeal 6 November 1998. In addition, we were referred to a decision of R v Bell NSW Court of Criminal Appeal unreported 29 September 1997. 16 Except for the last mentioned case, none of the sentences imposed in those cases was as severe as the sentence imposed on the applicant. 17 It seems to me that a proper reading of his sentencing remarks discloses that what was principally operative in his Honour's mind was the principle of totality and he concentrated upon this. That, in my opinion, was a correct approach, and I do not think any error, or significant error, is disclosed in the overall sentence in respect of the whole of the criminality. 18 However, it seems to me that it would be appropriate not only to impose sentences individually in relation to each of the offences, but also to restructure the sentences, or, more particularly, the commencement dates of the sentences. In particular, it seems to me that the sentence imposed in relation to the escape charge should have commenced, as I have said, on 31 May 1998. 19 There was no challenge to the length, or the term, of the sentences imposed in relation to the escape, or counts (2) to (5), all of which were fixed terms of twelve months. 20 When one considers the need to restructure the sentences in relation to the commencement dates, it seems to me that the sentences imposed in relation to stealing from the person and the final count of using a weapon to avoid lawful apprehension are excessive. However, as I have said, the overall total term imposed is not excessive, having regard to the criminality. Nevertheless, error has been demonstrated and that means that this court should proceed to resentence and in this respect the court accepted and has read material provided for the purpose if resentencing should eventuate. 21 That material demonstrates a most impressive and commendable course of conduct on the part of the applicant since his incarceration. There are encouraging signs that he is overcoming his early shaky start in life and the early criminality which is demonstrated by his record and, in my opinion, in the special circumstance of this case, recognition should be given to the efforts he has made in that regard. 22 Further, I am satisfied for that reason, and also because of the accumulation of sentences, that special circumstances should be found justifying departure from the s 5 (2) ratio. 23 I propose the following orders: leave to appeal be granted, the appeal allowed, and the applicant be resentenced as follows. In relation to count (1), the charge of escape, the applicant be sentenced to a fixed term of penal servitude for twelve months commencing on 31 May 1998 and expiring on 30 May 1999. In relation to counts (2) to (5), an identical sentence. In relation to count (6), the applicant be sentenced to penal servitude for a fixed term of two and a half years commencing on 31 May 1998 and expiring on 30 November 2000. On count (7), the applicant be sentenced to a total term of penal servitude of five and a half years commencing on 31 May 1998 and expiring on 30 November 2003: that sentence should be divided into a minimum term of two and a half years commencing on 31 May 1998 and expiring on 30 November 2000; and an additional term commencing on 30 November 2000 and expiring on 30 November 2003. 24 WOOD CJ AT CL: Yes, I agree. The orders of the court will be as proposed. ********** 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.