R v Simpson [1999] NSWSC 562

New South Wales Supreme Court CITATION : R v Simpson [1999] NSWSC 562 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 070215/97 HEARING DATE(S) : 29/3/99 27/5/99 JUDGMENT DATE : 4 June 1999

PARTIES : REGINA v Colin David SIMPSON JUDGMENT OF : Bell J at 1

COUNSEL : Crown: Mr D Carmody Prisoner: Mr J Stratton SOLICITORS : Crown: DPP (Ms A Farage) Prisoner: Legal Aid NSW CATCHWORDS : CRIMINAL LAW; Maliciously inflicting grievous bodily harm; Sentencing ACTS CITED : Crimes Act 1900 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Scognamiglio (1991) 56 A Crim R 81 CASES CITED : R v Anderson [1981] VR 155 R v Letteri (unreported, NSWCCA, 18 March 1992) R v Wright (unreported, NSWCCA, 28 February 1997) DECISION : See para. 41

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Friday, 4 June 1999

070215/97 - REGINA v Colin David SIMPSON

SENTENCE

1 HER HONOUR: On 29 March 1996 Colin David Simpson was indicted on an indictment containing one count, namely, that on or about 19 August 1996 at Lansvale he did maliciously inflict grievous bodily harm upon Gary Henderson with intent to inflict grievous bodily harm. To that indictment he pleaded not guilty but guilty to the statutory alternative of maliciously inflicting grievous bodily harm contrary to s 35 of the Crimes Act. The Crown Prosecutor accepted that plea in full discharge of the indictment. The matter was stood over to 27 May when evidence was led on the prisoner's behalf and I received submissions on sentence. 2 The prisoner was arrested on 30 August 1996 and charged with the murder of Gary Henderson. Two other persons, Susan Maria Hall and Colin George Hanslow, were also charged with the murder of the deceased. 3 The body of the deceased, dressed only in shorts, was found on the afternoon of 28 August 1996 lying on a mud bank adjacent to the water's edge near the Silverwater Boat Ramp at Lansvale. The deceased was a single man aged about 35 years. He was a slightly built individual who suffered from cerebral palsy. His left arm and leg were both wasted. He also appears to have been intellectually disabled. 4 Dr Ellis, pathologist, viewed the body at the site and subsequently conducted a postmortem examination. He concluded that death was caused as the result of head, chest and abdominal injury, compression of the neck, probable immersion/drowning. 5 Within 24 hours of the discovery of the body the police had ascertained the deceased's identity and address. He had been living in a caravan at the Lansdowne Caravan Park. The caravan was leased by Susan Hall and her de facto partner, George Hanslow. 6 A statement was taken from Ms Hall on 29 August 1996 and later that day police accompanied her to the caravan. An examination of the interior of the van revealed what appeared to be blood on one of the walls. When questioned about this, Ms Hall informed police that Colin Simpson had assaulted the deceased last Monday. Hall and Hanslow had been observed by an occupant of a neighbouring van removing a person dressed only in shorts from their caravan at around midnight on Monday, 26 August 1996. It is not clear whether Gary Henderson was alive or dead at that time. He was not seen alive thereafter. 7 The prisoner Colin Simpson together with Susan Hall and Colin Hanslow all suffer from intellectual disability. 8 At the time of these events Colin Simpson was a resident of the Craigieburn Lodge, a residential care unit for the aged and disabled. He appears to have been on friendly terms with Hall and Hanslow. It would appear, partly by reference to records maintained by the manager of the Craigieburn Lodge, that he was absent from the lodge and visiting the Lansdowne Caravan Park between Monday, 19 August 1996 and Wednesday, 21 August 1996. There is no evidence that he was at the caravan park after that time. 9 Colin Simpson was interviewed by police in the early hours of the morning of 30 August 1996. In the course of that interview he admitted to bashing the deceased. It was his account that he had bashed the deceased "last week" and that he had bashed him "the week before that". He said the assault occurred in the caravan occupied by Hall and Hanslow. He said that he had kicked and punched the deceased. He had punched him about 20 times, he had kicked him about 20 times. The kicks were to the back, the head and the ribs. During this time the deceased had "just told me to stop". Simpson had also attempted to hang the deceased. However, after a time, he had taken the ligature away from the deceased's neck to allow him to go to the toilet. 10 The prisoner appears to have assaulted the deceased to punish him because he had been told that Henderson had given out Hall and Hanslow's silent telephone number and that Henderson had been looking up little girls' dresses. Further, the deceased would not clean up after himself. He was leaving messes in the caravan and making the place smell. 11 The prisoner acknowledged that following his assault upon the deceased, the deceased had a black eye and was bleeding from the mouth. 12 Dr Ellis gave evidence at the committal hearing. He stated that it was impossible to determine which of the various serious injuries observed by him was the most likely cause of death. All in his view were contributory. He was unable to determine whether death was occasioned by drowning. 13 Understandably, during the initial investigation it was the police view that the assault to which the prisoner Colin Simpson made admissions had occurred in the course of the evening of 26 August, prior to the time when Hall and Hanslow were seen removing a body from the caravan. It is no longer contended by the Crown that that view is fairly open. 14 The Crown case is that the prisoner Simpson maliciously inflicted grievous bodily harm upon the deceased during the course of an assault which occurred on or about 19 August 1996. There is no evidence that Simpson had any further contact with the deceased after this time. 15 The prisoner Simpson was taken into custody on 30 August 1996. He remained in custody until his release on bail on 23 September 1998. That bail was revoked on 6 January 1999 when he was returned to custody. The revocation arose out of the breach of conditions of bail and not as a consequence of any allegation of the commission of further offences. He has remained in custody since that time. 16 It was conceded by Mr Stratton who appears for Mr Simpson that this assault was a serious one. 17 I am not able to determine which of the various injuries observed by Dr Ellis were inflicted in the course of the assault to which this prisoner has pleaded guilty. Mr Stratton took me to a number of passages in the evidence of Dr Ellis with a view to establishing that some of the more serious injuries noted by the doctor appear to have been inflicted within a relatively short period of the time of death. This would place those injuries after any assault committed on or about 19 August 1996. I accept that submission. 18 The bruising to the deceased's neck and associated damage to the internal structures of the neck consistent with the use of a ligature is referable to the prisoner's assault. Mr Stratton conceded that that was so. On the prisoner's own account, this was a nasty assault involving repeated punching and kicking of a physically disabled man. I am not satisfied beyond reasonable doubt that the prisoner punched and kicked the deceased on a number of occasions which he volunteered in the course of his interview. The interview records him mantra-like reciting that he had kicked, punched and assaulted the deceased 20 times in each instance. The impression I am left with is that his account is not reliable as to this detail. However, I do accept that the assault involved both kicking and punching several times, together with the application of the ligature to the deceased's neck. 19 I should observe that the prisoner Susan Maria Hall was indicted before me on a charge of manslaughter to which she has pleaded guilty. I am informed that the Crown relies upon the prisoner's failure to obtain medical assistance as the basis for that count. Colin Hanslow was arraigned on an indictment charging him with the manslaughter of Gary Henderson, to which he entered a plea of not guilty, and with a count alleging that he was an accessory after the fact to the infliction of grievous bodily harm upon the deceased. To the latter count he entered a plea of guilty. 20 The basis of the case made against Hall was not entirely clear to me from the agreed facts which were tendered on the last occasion. I have stood her matter over to 16 July 1999 when I will hear further submissions in this regard. The matter of Colin Hanslow will also be before me on that date. However, at the present time, that is a matter which awaits trial. I do not consider that I should stand the matter of the sentence of the prisoner Colin Simpson over to 16 July 1999. Mr Simpson has spent a substantial period of time in custody and he is entitled to know his sentence without further delay. 21 The prisoner Colin Simpson was aged 34 years at the date of this assault. He has a criminal record commencing when he was aged 16 years. He appeared before the Lismore Children's Court charged with assault and was released on probation for 12 months. He has a further entry as a juvenile; a conviction for an assault. In relation to that he was released on a probation order for 3 years subject to the supervision both of his mother and the Probation and Parole Service. On 16 April 1986 he was convicted before the Casino Local Court on a charge of indecent assault. On that occasion he was placed on a recognisance pursuant to section 558 of the Crimes Act for a period of 3 years conditioned that he accept the supervision of the Probation and Parole Service. On 29 April 1988 he appeared before the Sydney District Court where he was convicted in relation to an indecent assault on a person under 16 years. His Honour Judge Wall directed that no action be taken in relation to the breach of the earlier recognisance. The prisoner was again placed on a 3 year recognisance to be of good behaviour, subject to the supervision of the Probation and Parole Service. Thereafter he appears not to have offended again until the commission of the subject offence. 22 The prisoner was seen by Associate Professor Susan Hayes on 7 March 1997 and again on 18 May 1999. A report prepared by Professor Hayes is before me. She administered a number of tests to the prisoner during the course of her first interview with him. Those tests reveal that he is mildly to moderately intellectually disabled. His best area of functioning is that of daily living skills and his worst is that of communication. Professor Hayes noted that the prisoner has a very unreliable concept of time. This has some significance and I will return to it later. 23 Professor Hayes obtained a detailed history from the prisoner which is set out in her report and which has not been the subject of any challenge. It appears that the prisoner is the youngest of seven children. He grew up in the Casino area and lived with his mother until her death when he was aged about 23. He reported that he had not done well at school and had failed every test. He had worked in a sheltered workshop in Lismore and subsequently with the House With No Steps. Following the death of his mother he came to Sydney where he has lived ever since. 24 It appears that he has had a number of admissions to the Rozelle Hospital in the years between 1992 and 1996. On the occasion of his first admission, cognitive testing was consistent with mild developmental disability. On 15 November 1995 the Guardianship Board ordered that the prisoner's estate be committed to the care of the Protective Commissioner. The Board accepted that the prisoner was not able to manage his finances and that he was vulnerable to exploitation. It appears that the Public Trustee manages a small fund on his behalf, being the proceeds of an award of damages made following a motor vehicle accident. 25 In her report, Professor Hayes extracted a portion of the Guardianship Board's reasons for decision in these terms. "The matter of accommodation for Mr Simpson is a serious problem as he appears not to be able to accept the usual rules and regulations that relate to boarding houses or the like. He therefore finds that he is not able to stay in a particular accommodation for long. He has spent considerable time sleeping on the streets and his condition deteriorates when this happens." 26 It appears that the prisoner has maintained a relationship with a lady named Anne. She is 20 years older than he and she suffers from manic depression. Anne lives in Glebe and on the prisoner's ultimate release from custody he would like to live in premises such as the Rainbow Lodge boarding house so that he might be near her. 27 The prisoner has spent most of his time in prison in the Developmental Disability Unit in the Long Bay Centre. He has participated usefully in a variety of activities while a member of the unit. In the mornings he works assembling headsets for Qantas. On Tuesday afternoons he does a carpentry course. He is particularly enthusiastic about this. On Mondays and Thursdays he attends a driving course. The aim is ultimately to be able to obtain a driver's licence. On Fridays he does a gardening course and he has made arrangements to attend a cooking course. He is described by Professor Hayes as a positive and cheerful man who has little or no insight into the difficulties he has in the community. 28 A report prepared by Geoffrey Stirling, social worker, an employee of the Legal Aid Commission, was also tendered on the prisoner's behalf. Mr Stirling, a former probation and parole officer, interviewed the prisoner at the Special Purpose Centre, Long Bay Complex, on 12 May 1999. In addition to that interview Mr Stirling made contact with a number of the prison staff, with welfare and community workers and with the prisoner's sister, Fay Simpkins. 29 Ms Simpkins, who lives in Casino, says that the prisoner was in institutional care between the ages of 5 and 13 in a facility operated by the Spastic Centre in Sydney. Apparently the prisoner suffers some degree of cerebral palsy in addition to his intellectual handicap. During these years he returned to the family home during each school holiday. After his return to Casino the prisoner had been placed in a special class for developmentally delayed students at the Casino High School. He left school at about 14 or 15 years of age. Ms Simpkins confirmed that the prisoner had lived with his mother up until her death. He had had difficulty in dealing with her loss. He moved to Sydney and thereafter resided in boarding houses occupied by the intellectually disabled or on the streets. 30 Both Mr Stirling and Associate Professor Hayes note that Mr Simpson has had problems with alcohol abuse over the years. 31 In dealing with this matter I have regard to the prisoner's plea of guilty. I accept that that plea was offered on the first occasion when it was available to him to do so. I also have regard to the contents of the prisoner's interview with police on 30 August 1996. He made a full confession. This assisted the police in their investigation, not only as to his own criminal involvement, but also that of his co-offenders. I accept that the interview also demonstrated contrition consistent with the prisoner's level of intellectual functioning. 32 Having regard to the prisoner's difficulties in life, I do not consider that his criminal record stands in the way of some leniency being extended to him. I note that for the past 10 years, despite a troubled lifestyle, he has not offended. 33 The prisoner spent 2 years and 26 days in custody in respect of this matter prior to his release on bail on 23 September 1998. He has now served a further 5 months or so in custody. As a remand prisoner, the whole of this time has been spent in conditions of maximum security. Despite the programs available to him in the Developmental Disability Unit, it is to be borne in mind that he is locked up at 5.45 pm and remains in his cell by himself until 6.45 am the following morning. 34 I consider the prisoner's intellectual disability mitigates his culpability for this offence. The answers in his electronically recorded interview are eloquent testimony of his limited understanding of the seriousness of his offending behaviour. In some cases that might raise concerns as to his dangerousness and considerations of the protection of society would need to be emphasised; Veen v The Queen (No 2) (1988) 164 CLR 465 AT 476. That consideration does not loom large in the circumstances of this case. For a bigly built man leading an itinerant and rather chaotic lifestyle with a history of alcohol abuse, the absence of offending behaviour over the last 10 years is notable. Professor Hayes observes that he has the potential to do well in the community and this is assisted by his cheerful and pleasant personality. 35 In the light of the prisoner's intellectual disability, I propose giving less weight to considerations of general deterrence than might otherwise be called for in the circumstances of this case; R v Scognamiglio (1991) 56 A Crim R 81; R v Anderson [1981] VR 155; R v Letteri (unreported, NSWCCA,18 March 1992) and R v Wright (unreported, NSWCCA, 28 February 1997) . 36 In determining the structure of the sentence to be imposed on the prisoner, I have regard to the evidence of Mr Stirling: "Given the fact that Mr Simpson has no real concept of dates or time, it would be almost impossible for him in my view to fulfil his reporting obligations to the Probation and Parole Service. He could be instructed to report on a given date and given time and he may well agree to do that, but his ability to fulfil that obligation would be very difficult indeed. This, of course, would or could lead to him being breached." 37 On his release from custody it is the prisoner's wish, as I have observed, to live in the Glebe area so that he may maintain contact with his girlfriend Anne. The closest office of the Probation and Parole Service to Glebe is the one located in Annandale. Mr Stirling informed me that he had made contact with the district manager in charge of the Annandale office on 25 May of this year. she had indicated that, due to a lack of staffing, it would not be possible for her officers to visit Mr Simpson rather than to impose a requirement that he report to them. 38 I note that Mr Stirling was of the opinion that the prisoner would require some supervision on release in order to facilitate his move back into the community. 39 In total, the prisoner has now served approximately 2 and a half years in custody in conditions of maximum security. Prior to the commission of this offence he had not served a term of imprisonment. 40 Taking the approach that I have indicated to the evidence relating to his intellectual deficits and having regard to the other favourable subjective material, I propose imposing a sentence of relatively short duration to date from 6 January 1999. That sentence is less than the sentence that would otherwise have been imposed in order to give full credit for the 2 years and 26 days served in custody as a remand prisoner, which was solely referable to the present offence. I had in mind a sentence of 12 months comprising a 9 month minimum term and a 3 month additional term. I propose adjusting this to provide for a minimum term of 8 months in order to ensure full credit for the 26 day period in addition to the 2 years already served. This produces the consequence that the additional term will not accord with the statutory ratio provided in section 5(2) of the Sentencing Act. This result is the consequence of an endeavour to properly reflect the full extent of pre-sentence custody and that consideration alone constitutes special circumstances within the meaning of the Act. 41 Accordingly, Colin David Simpson, I sentence you to a minimum term of 8 months penal servitude to date from 6 January 1999. That sentence will expire on 5 August 1999. I impose an additional term of 3 months penal servitude. That will commence on 6 August 1999 and expire on 5 November 1999. I direct that the prisoner is to be released on parole at the expiration of the minimum term. **********