New South Wales Court of Criminal Appeal CITATION : Regina v Simpson [2001] NSWCCA 239 FILE NUMBER(S) : CCA 60586/99 HEARING DATE(S) : 25/06/01 JUDGMENT DATE : 25 June 2001 PARTIES : Regina v George Adrian Simpson JUDGMENT OF : Barr J at 28; Howie J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1019 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : G.E. Smith - Crown R.J. Button - Applicant SOLICITORS : S.E. O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Applicant CATCHWORDS : Criminal Law - Practice and Procedure - application of De Simoni principle - duty of prosecutor in relation to facts and material placed before the sentencing court. Crimes Act 1900 - ss 33B, 58, 111(1), 112(1), 148 LEGISLATION CITED : Justices Act 1902 - s 51A Crimes (Sentencing Procedure) Act 1999 - s 32 The Queen v De Simoni (1981) 147 CLR 383 R v Adorjany [1999] NSWCCA 37 CASES CITED: R v Engert (1996) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Pitt [2001]NSWCCA 156 DECISION : Application for leave granted, appeal allowed and sentences quashed. In lieu on the first count and taking into account the matter on the Form 1 the applicant is sentenced to 3 years imprisonment with a non-parole period of 2 years. The sentence is to date from 13/4/99. On the second and third counts the applicant is sentenced to a fixed term of 18 months from 13/4/99 and which expired on 12/10/00. IN THE COURT OF CRIMINAL APPEAL 60586/99 BARR J HOWIE J MONDAY 25 JUNE 2001 REGINA V GEORGE ADRIAN SIMPSON JUDGMENT 1 HOWIE J: The applicant seeks leave to appeal against the sentences imposed upon him by Judge Nield at Parramatta District Court on 16 September 1999 following his plea of guilty to an indictment containing three counts being; an offence of break enter and steal contrary to s 112(1) of the Crimes Act; an offence of entering a dwelling house with intent to steal contrary to s 111(1) of that Act and an offence of assault with intent to avoid lawful apprehension contrary to s 58 of the Act. All offences were alleged to have been committed on 8 April 1999. 2 The applicant had originally pleaded guilty in the Local Court to a number of offences and was committed for sentence to the District Court under s 51A of the Justices Act. However, an indictment was presented to the District Court containing the three charges to which I have referred and the applicant pleaded guilty on his arraignment on 24 August 1999. In addition, the applicant asked the sentencing judge to take into account one offence of steal from a dwelling contrary to s 148 of the Crimes Act on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. That offence was committed on 13 April 1999. 3 The maximum penalty in respect of the first offence was imprisonment for 14 years, in respect of the second 10 years, and in respect of the third 5 years. The maximum penalty applicable to the offence on the Form 1 was 7 years imprisonment. All of the offences could have been dealt with summarily before the Local Court. 4 Judge Nield sentenced the applicant on the first count taking into account the Form 1 offence to imprisonment for 4 years with a non-parole period of 2 years. The sentence and the non-parole period commenced on 13 April 1999, the date upon which the applicant was taken into custody, and the non-parole period was to expire on 12 April 2001. In respect of the other two counts on the indictment, his Honour imposed concurrent sentences on the applicant of fixed terms of 2 years, also commencing on 13 April 1999 and to expire on 12 April 2001. His Honour indicated that the applicant was to be subject to the supervision of the Probation and Parole Service whilst on parole. The applicant has been released to parole and the only complaint now made is with the total term specified. 5 The first offence on the indictment occurred in the afternoon of 8 April 1999 at Strathfield. The applicant entered residential premises through a closed but unlocked front door and proceeded into two bedrooms, taking $50 cash from a wallet and $500 worth of retail vouchers. Upon encountering the occupant of the house, the applicant fled through the front door. 6 The applicant then walked to Burwood where the other two offences were committed. He entered a house through the front doorway that had been left tied open with a piece of rope. The applicant proceeded to the front bedroom, but was confronted there by the owner of the premises. The owner's son came to assist and a struggle ensued. The applicant broke free and ran out of the house with the owner's son following behind. The applicant threatened the owner's son saying, "I am not mucking around I mean business". The pursuer retreated and the applicant made good his escape. 7 Police located the applicant shortly thereafter and, following a pursuit of about five minutes, he was arrested. He was taken to Burwood Police Station where he participated in an electronically recorded interview, during which he told police that he mistook the homes for boarding houses, and denied being in bedrooms in either of the premises. He said that he was attacked in the second house and brandished a knife in order to escape in his own self-defence. 8 The applicant was granted bail later that day. On 13 April 1999, while on bail, the applicant committed the offence of stealing from a dwelling house which was contained on the Form 1. The facts of that matter were that he entered a home in Paddington and took possession of cash in the amount of almost $18,000 and jewellery to the value of $12,000. However, police arrested him in the premises and the property was recovered. In a recorded interview the applicant made full admissions to this offence. He was thereafter refused bail and has remained in continuous custody since then. 9 The applicant is aged 49 and of the Aboriginal race. He has a lengthy record for criminal offences due to his long-standing abuse of alcohol and drugs. In sentencing the applicant, Judge Nield noted that the applicant had up until 1992, spent longer in custody than he had in the community. From 1992 to 1998 the applicant was not before the courts. However, he slid back into criminality in 1998, when in April of that year he broke into a dwelling house with intent to steal and in September he stole property from a dwelling house. It was in respect of each of those two matters the applicant was given the benefit of a deferred sentence upon him entering into a bond to be of good behaviour. He breached those bonds by the commission of the present offences. Judge Nield accepted that his return to crime was attributable to the applicant's estrangement from his de facto partner of many years. 10 In sentencing the applicant, Judge Nield took into account, as he was obliged to do, that it was an aggravating feature of the criminality before the court that the Form 1 offence was committed by the applicant while on bail for the three offences on the indictment, and that all of the offences were committed in breach of the good behaviour bonds to which I have referred. Although all offences could have been dealt with summarily, this does not necessarily detract from their seriousness in view of these aggravating features. 11 However, because of the applicant's unfortunate background that was set out in various reports that were in evidence before him and because the applicant had been diagnosed as suffering from schizophrenia, Judge Nield determined that there were special circumstances because the applicant would require a longer parole period for supervision and treatment. His Honour also recommended that the Department of Corrective Services classify the applicant as on strict protection and that he be provided with appropriate psychiatric and drug and alcohol counselling. 12 The applicant's first, second and fourth grounds of appeal can be dealt with together. In effect it is contended that the sentence was manifestly excessive in all the circumstances and that this may have been the result of a failure of his Honour to give sufficient weight both to the applicant's aboriginality and his mental illness. I will deal with these matters after considering the third ground of appeal which contends that the sentencing judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by taking into account a matter of aggravation which would have rendered the applicant liable to a greater sentence than that for the offences to which he pleaded guilty. 13 As I have already indicated, the applicant was to be sentenced for three offences including an offence contrary to s 58 of the Crimes Act being an offence of assault with intent to avoid his lawful apprehension. That offence as his Honour expressly stated, carried a maximum penalty of 5 years. However, the facts before his Honour alleged that, when threatening the son of the owner of the second premises who was pursuing him, the applicant pointed a knife or leatherman tool at him and warned that he meant business. Such an allegation would give rise to an offence under s 33B of the Crimes Act of threatening a person with an offensive weapon with intent to avoid lawful apprehension. An offence under that section carries a maximum penalty of 20 years imprisonment. It is clear from the different maximum penalties prescribed by s 33B and s 58, that the use of an offensive weapon is a substantially aggravating feature of an offence concerned with assaulting a person in order to avoid lawful apprehension. 14 His Honour indicated at the outset of his remarks that the applicant was to be sentenced for an offence of assault with intent to avoid lawful apprehension. But during the course of reciting the facts of the matters before him, his Honour said: "However he did threaten Mr Sam Filipo and his son Antonio, and it was his threatening of Messrs Sam and Antonio Filipo with the knife, and I accept that it was the knife and not the pliers of the leatherman tool that he had with him; I know what is a leatherman tool, I have one myself and I have described it to the Crown Prosecutor and the prisoner's solicitor – that resulted in his arrest." Immediately thereafter his Honour referred to the maximum penalties for each of the offences and indicated that what he then described as the "assault offence" carried a maximum penalty of 5 years imprisonment. 15 Because the use of an offensive weapon was an aggravating feature which would have made the applicant liable to a more severe sentence, that fact should not have been referred to by his Honour when imposing sentence upon the applicant. Further, there was no evidence that the applicant had threatened the owner of the house at all. His Honour can be forgiven for making the error in relation to the use of the weapon. The facts placed before him by consent included such an allegation, as did the statement of the witness who was threatened, and the recorded interview. Further, the solicitor for the applicant actually raised the matter with his client during the course of the applicant's evidence by asking why he had pulled a knife out when he ran away. The applicant said that he was scared because the pursuer was too big for him. 16 It is clear, from what his Honour said in the passage of his remarks which I have quoted, that there had been some discussion between the bench and the bar-table about the nature of the weapon used by the applicant. It seems that both the representatives for the Crown and the applicant failed to realise that it was inappropriate for there to be any reference to the allegation of the use of a weapon during the sentencing proceedings. To some extent the facts of the matter and the charge under s 58 did not sit well together because it was clear that it was the threat of the weapon which caused the son to stop his pursuit of the applicant and it was the threat which allowed the applicant to avoid his apprehension. This is no doubt why the applicant was originally, and appropriately, charged by the police with an offence under s 33B. 17 However, for some reason, which is not apparent in the material before this Court, the Crown determined to proceed in the District Court on the less serious offence under s 58. In a case such as this, where the prosecution are prepared to proceed to sentence for an offence of a less serious nature than that for which the accused was originally charged, the prosecution has the onus of ensuring that the facts and evidence placed before the court both support, and are appropriate to, the offence to which the accused pleaded guilty. In this case, if an error occurred, as I believe it did, it was a direct result of the material placed before the sentencing judge and the conduct of those appearing before him. 18 In my view his Honour erred in taking into account the fact that the applicant threatened his pursuer with a knife. True it is that it will not always be the case that the principle in Di Simoni will be infringed simply because the sentencing judge makes some reference to a fact which should not have been taken into account, particularly where the offence and the maximum penalty which applies are properly stated by the judge: R v Adorjany [1999] NSWCCA 37. But in this case much attention appears to have been given to the nature of the weapon used by the applicant and there is more than a passing reference to the matter in his Honour's remarks. Further, it was such a significantly aggravating matter that I am not confident that the use of a knife by the applicant did not figure in the sentence his Honour imposed. There seems to be no other reason for his Honour to make the finding of fact that it was a knife rather than the more harmless leatherman tool. Although the applicant was given a concurrent sentence for this offence, I am not persuaded that the use of a knife would not have been reflected in the overall-sentence imposed. 19 In my view this ground of appeal should be upheld. This Court must then resentence the applicant. He is now aged fifty years. He is of aboriginal descent and from a deprived background and upbringing. Before the applicant's father left the family, when the applicant was at a young age, there were instances of violence and sexual abuse upon him. His mother was an alcoholic and he was on occasions abused by her partners after his father left the family. He spent some years in a boys' home before returning to live with his mother. He left her home in his early teenage years. It was around this time that he was first arrested for stealing. 20 The applicant started drinking alcohol at the age of eight while in a welfare institution and first used heroin at twelve. He was addicted to this drug within about two years and continued to use it and other drugs intermittently, while he continued to abuse alcohol, until he met his defacto partner at the age of forty. He again began to use a range of drugs in the latter half of 1998 after the breakdown of this relationship, and this led to the commission of the offences for which he was sentenced by Judge Nield. 21 In her report of 20 August 1999, Dr Wilcox diagnosed the applicant as suffering from depression after the break up of his relationship. She also noted that he had not developed adequate coping skills due to his years of institutionalisation, and that the distress that resulted had contributed to his drug use. She also concluded that the applicant suffered from schizophrenia. 22 In my view there is little relevance in the fact that the applicant suffers from a psychiatric illness. The psychologist did not believe it contributed the offences committed and I have difficulty in seeing what role it has to play in the sentencing process. Although general deterrence may not be appropriate in a case of a person suffering from a psychiatric illness for humanitarian reasons, I believe that it should be a significant factor in the present case. Nor is specific deterrence irrelevant in light of the fact that the applicant committed the offences while on conditional liberty: Engert (1996) 84 A Crim R 67. 23 The simple fact is that the applicant was a person, who, like so many other offenders in the community, committed property crimes because he was using drugs and needed to support his habit. There is nothing to link his drug and alcohol abuse, which have been so much part of his life since his youth, to the effects of schizophrenia. He was able to avoid drugs and alcohol while in the relationship with his de facto. She gave no evidence to suggest that mental illness caused any significant problems during the relationship. The applicant's repeated claims to the psychologist, the probation officer and in evidence before his Honour that he committed these offences in order to return to gaol is, in my view, pure humbug, especially in light of his attempts to avoid being apprehended by both the owner's son and the police, and his denial of the offences when arrested. The applicant in his record of interview appears to be an intelligent and articulate man despite his difficult upbringing. He also showed a degree of cunning in the answers he gave to the police and the defence he set up to the charges. 24 There is little relevance in his case of the matters referred to in Fernando. It has been made clear by both the Chief Judge and other members of this Court that the remarks of his Honour in that case are not authority for the fact that persons of aboriginal abstraction should always receive more lenient sentences or treated in some way different to other members of the community: R v Pitt [2001] NSWCCA 156. The applicant was brought up for some of his youth in an institution and considers himself to be one of the stolen generation. 25 However, the applicant is entitled to the fact that he was able to live a drug and crime free existence for a lengthy period until the spate of offences of which these are a part. But the applicant must receive a significant sentence because of the criminality involved in the matters and his breaches of condition liberty. 26 The applicant is entitled to a discount of 25 per cent of the otherwise appropriate sentence by reason of the plea of guilty and its consequences. 27 I propose that the application for leave be granted, the appeal allowed and the sentences imposed by his Honour be quashed. In lieu on the first count and taking into account the matter on the Form 1 the applicant should be sentenced to 3 years imprisonment with a non-parole period of 2 years. The sentence is to date from 13 April 1999. The applicant has been released to parole. In respect of the second and third counts the applicant should be sentenced to a fixed term of 18 months from 13 April 1999 and which expired on 12 October 2000. A fixed term should be imposed because of the sentence imposed on the first count. 28 BARR J: I agree with Howie J. The order 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.