R v SIMPSON [2001] NSWCCA 297

New South Wales Court of Criminal Appeal

CITATION : R v SIMPSON [2001] NSWCCA 297 FILE NUMBER(S) : CCA 60791/00 HEARING DATE(S) : 2 August 2001 JUDGMENT DATE : 9 August 2001

PARTIES : REGINA v NEIL ANDREW SIMPSON JUDGMENT OF : Mason P at 1; Sully J at 1; Newman AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0304 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : Crown: R A Hulme Applicant: T A Game SC SOLICITORS : Director of Public Prosecutions: S E O'Connor Applicant: Marsdens CATCHWORDS : Criminal law - sentencing - special circumstances - leave to reargue correctness of R v Hameed [2001] NSWCCA 287 DECISION : See pars 7, 8

IN THE COURT OF CRIMINAL APPEAL CCA 60791/00 MASON P SULLY J NEWMAN AJ

Thursday 9 August 2001

REGINA v Neil Andrew SIMPSON

JUDGMENT

1 THE COURT: This application for leave to appeal against sentence was heard on 2 August 2001. 2 The principal argument advanced in the applicant's written submissions focussed upon the statement by the sentencing judge that: "I see no reason to find special circumstances in this case." 3 The submission was that the judgment is deficient because of inadequate disclosure of reasons. 4 As it happened, judgment in R v Hameed [2001] NSWCCA 287 was handed down on 2 August. That is a decision of Simpson J and Sperling J. Their Honours agreed in the result but each judge gave separate reasons. 5 The judgment of Sperling J reviews a number of cases decided before and after the enactment of the current s44 of the Sentencing Act 1989 (by the Crimes (Sentencing Procedure) Act 1999). Sperling J contrasted what he termed the strict and the liberal approach to "special circumstances". The "strict approach" is identified as holding that the only relevant consideration is the need for a longer period under care and supervision on parole than would otherwise be the case for the purpose of rehabilitation. 6 It was submitted that Judge Gibson in the present case had wrongly confined himself to "the strict approach". 7 The Crown disputed the latter proposition but contended in the alternative that Sperling J was not correct in discerning the sharp dichotomy in the case law between the strict and liberal approaches. It was submitted that "special circumstances" in s44 had the meaning attributed to it in Phelan (1993) 66 A Crim R 446 and the other cases cited by Sperling J in Hameed [54]. The Crown invited the Court to reconstitute itself as a bench of five to determine whether s44 had the radical effect found by Sperling J. 8 We propose to do so. The matter will be listed for further hearing on a date to be fixed by the Registrar (in August if practicable). The parties are directed to file supplementary submissions dealing with the issues raised by Hameed, the applicant's submissions to be filed within 14 days and Crown's submissions within a further period of seven days. *****************