Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Simms v R [2014] NSWCCA 286 Hearing dates: 18 November 2014 Decision date: 28 November 2014 Before: Price J at [1]; McCallum J at [2]; R A Hulme J at [3] Decision: 1. Leave to appeal granted and appeal allowed. 2. Quash the sentence imposed in the District Court on 12 February 2014. 3. Sentenced to imprisonment comprising a non-parole period of 3 years 3 months commencing on 12 February 2014 and expiring on 11 May 2017 with a balance of the term of the sentence of 1 year 9 months concluding on 11 February 2019. Catchwords: CRIMINAL LAW - appeal against sentence - intentionally destroying property by fire - no failure to take subjective case into account - no error in finding that applicant had been subject to lengthy supervision in the community - sentence reflected worst or close to worst category of offence - to be expected that sentencing judge would have expressed finding of worst category if found - offence fell above mid-range but not at or near top of range - sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 NSW Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Category: Principal judgment Parties: Dane Frederick Simms (Applicant) Regina (Respondent) Representation: Counsel: Ms H Cox (Applicant) Mr N J Adams (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2013/236076 Decision under appeal Date of Decision: 2014-02-12 00:00:00 Before: Syme DCJ File Number(s): 2013/236076 Judgment 1PRICE J: I agree with R A Hulme J. 2McCALLUM J: I agree with R A Hulme J. 3R A HULME J: Dane Frederick Simms (the applicant) was sentenced in the District Court at Newcastle on 12 February 2014 by her Honour Judge Syme after having pleaded guilty to an offence of intentionally destroying property by fire. 4The offence is contrary to s 195(1)(b) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 10 years. 5Her Honour imposed a sentence of imprisonment for 6 years with a non-parole period of 3 years 7 months with effect from 12 February 2014. 6The applicant seeks leave to appeal on the three grounds: that the judge erred in taking subjective matters into account only in her assessment of the non-parole period; that her Honour made an error of fact; and that the sentence is manifestly excessive. Facts 7The applicant's de facto partner, Ms Taylah Latimer, leased a duplex home unit in Raymond Terrace. The adjoining unit was occupied by a woman and her five year old sister. 8The applicant had been released on parole on 20 April 2013. Thereafter he lived "on and off" at the unit with his partner and their seven month old son. He otherwise slept in a car. 9In the early evening of 1 August 2013 the applicant was at home at the unit whilst Ms Latimer and their son were elsewhere. He was to later tell a psychiatrist that they had argued. Ms Latimer's grandmother called in and he told her that he was packing his belongings and was leaving. There were items of clothing packed into large garbage bags. It was observed that there were some vases and other items smashed on the floor of the unit. 10Mrs Latimer left and in the ensuing hours there was a series of text messages exchanged with the applicant. He was described as being "obviously upset and emotional". Later in the evening he drove to a service station and filled up a jerry can with petrol. A little later, Mrs Latimer drove past the unit and saw the applicant in his car parked out the front. She approached and asked what was happening. He pushed the door open and said, "I'll show you what's happening". The applicant grabbed the jerry can and entered the house through the garage. She called out to him, "no Dane don't do this". 11Mrs Latimer moved her car a safe distance up the road and then called triple 0. While she was walking back to the house talking to the triple 0 operator she saw a glow from the house. The applicant walked out of the house, got into his car and drove away at speed. The house was soon well alight. Mrs Latimer yelled out to passers-by to alert the neighbours and they managed to exit their unit safely. 12Emergency services attended shortly afterwards and eventually brought the fire under control. However it had completely destroyed the unit and had caused some heat, smoke and water damage to the adjoining unit. 13The applicant was arrested the following day. When he was informed that he was under arrest for breach of parole as well as starting the fire he said, "it was an accident". Personal circumstances of the applicant 14The applicant was born in 1987 and so he was aged 26 at the time of the offence. He grew up on an Aboriginal mission at Karuah with his mother, stepfather and three younger half siblings. He thought that his stepfather was his real father until the age of 12. He is reported to have said that his mother was good and caring when he was growing up. He got along well with his stepfather. He denied any history of violence, drug or alcohol problems, or sexual abuse in the family. His mother was involved in the use and supply of drugs, although the period in which this was the case is not clear. 15His parents separated when he was aged 12. He did not cope well. He missed his stepfather and continued to harbour anger and rejection. He had consumed cannabis and alcohol from the age of 9 or 10 but after the upheaval at home he started to associate with negative peers, run away from home and get into trouble with the law. 16He continued drinking alcohol until he was aged 13 to 15. I take it he continued using cannabis. He commenced to use heroin at the age of 24. When he was on parole in 2013 he was using "ice" (methylamphetamine) on a daily basis. He was also taking buprenorphine. 17The applicant has acquired a significant criminal history. He first appeared in the Children's Court at the age of 13 for an assault. He was first the subject of a custodial order at the age of 14. The offences on his record include break enter and steal; taking and driving cars without the owner's consent; damaging property; assault occasioning actual bodily harm; assaulting and resisting police; dangerous driving causing grievous bodily harm; escape; drug possession; firing a spear gun in a manner likely to injure; aggravated break enter and commit serious indictable offence; accessory after robbery in company; stealing a motor vehicle; and kidnapping. There are multiple entries for many of those offences. There are also many entries for driving offences such as driving in a manner dangerous and driving whilst disqualified. 18The applicant was transferred from a juvenile detention facility at the age of 17 to a correctional centre following a riot. That was in October 2004. Since that time he had only been at liberty in the community on two occasions; once for eight months in 2011-2012 and again for a period of three and a half months from 20 April 2013 until he was arrested for the present offence on 2 August 2013. He was on parole in 2011 but that was revoked in 2012. Parole was also revoked on 2 August 2013 and he was ordered to serve the balance of parole until 4 September 2015. 19The applicant told a drug and alcohol worker at Cessnock gaol in November 2013 that he found it hard to cope in the community and that he had no real support and just could not cope. He returned to using methylamphetamine, which made matters worse. He said that he regarded himself as "institutionalised" and considered that he should be at a rehabilitation centre where he could learn to cope with living in the community. 20Dr Richard Furst, forensic psychiatrist, did not see any indications of serious mental illness such as bipolar disorder or schizophrenia but made diagnoses of Substance Use Disorder and Antisocial Personality Disorder. He noted a history of the applicant being prescribed antidepressant and a low dose antipsychotic medication. 21Dr Furst wrote: "Mr Simms has a generally unfavourable prognosis, being institutionalised, antisocial, impulsive, coping poorly under stress and being dependent on drugs. The best prospects of reducing his future risk of recidivism would be through abstinence from drugs of abuse, psychological counselling, such as the [Violent Offenders' Therapeutic Program], and engagement in appropriate drug and alcohol counselling and/or rehabilitation." 22Dr Furst also recommended education, vocational training, and a staged reintegration into the community through a Community Offenders Support Program. Remarks on sentence 23Syme DCJ made a number of findings relevant to the objective seriousness of the offence. She noted that the extent of the damage to property was significant in that the target unit was destroyed and the adjoining unit was partially damaged. There was also the potential risk to the lives of others. There was a small degree of planning in that the applicant removed his personal effects prior to the commission of the offence. The offence had a domestic violence flavour to it in that his motive was in part to lash out at his domestic partner. Her Honour found, "this is an offence clearly directed at causing harm or distress to Ms Latimer by way of significantly damaging the property which she was leasing." Her Honour found that domestic violence being the motive was an aggravating circumstance. Another matter was that the offence was committed without regard for public safety; her Honour finding that the next door neighbours were put in "real and immediate danger". 24Her Honour noted the applicant's extensive criminal record but did not find that it was a circumstance of aggravation. It did however deprive him of leniency but was also significant in terms of future parole consideration. 25Her Honour noted that the offence was committed whilst the applicant was on parole. She found that any prospects of rehabilitation "must be guarded" only. She noted that remorse had been expressed to report writers but there was no evidence of insight other than a superficial understanding of a need to address his substance abuse issues and learn the skills necessary to function in the community. She found that the applicant had not accepted responsibility for his actions, nor acknowledged the damage, injury and loss. 26Her Honour then turned to a question of whether there were special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period (s 44(2) of the Crimes (Sentencing Procedure) Act 1999 NSW). She referred to a number of features of the applicant's subjective case, including his "dysfunctional" background. She said, "he has a dysfunctional background which has informed and led to his criminal behaviour since he was a young man". Reference was made to Bugmy v The Queen [2013] HCA 37; 249 CLR 571. 27Her Honour indicated that it would be appropriate for the applicant to be directed to undertake a residential rehabilitation program when he came to be released on parole. She said his "level of institutionalisation is of concern"; "he clearly has difficulty living outside of the structures of a supervised environment". 28Her Honour considered how to exercise her discretion in relation to the commencement date of the sentence given that the applicant was serving the balance of parole from August 2013 until September 2015. She resolved to commence the sentence from the date of imposition and no complaint is now raised in that respect. Ground 1: Her Honour erred in taking the applicant's deprived and dysfunctional background, improvements in his behaviour whilst in custody and youth into account only when considering special circumstances 29This ground relates to a collection of references to aspects of the applicant's subjective case which appeared after her Honour turned in her judgment to a consideration of special circumstances. The submission was made that such matters were relevant to the total term of the sentence as well and in that respect her Honour had erred in her confinement of consideration of those issues. 30I am not persuaded that this ground can be made good. Her Honour referred to a number of aspects of the applicant's subjective case at earlier parts of her remarks on sentence. It has to be noted that judgment was delivered ex tempore soon after the completion of evidence and submissions. In those circumstances, some allowance must be made for the structure of the judgment. 31The real issue in this case is the third ground. I would not uphold this one. Ground 2: It was not open for her Honour to find that the applicant had been subject to lengthy supervision in the community 32Again in the course of discussing whether there were special circumstances, her Honour said: "However, he has, in the past, I note, been subject to substantial findings of special circumstances and been subject to lengthy supervision as a result of those findings of special circumstances. None of that supervision has produced the desired result, in fact Mr Simms' offending has accelerated over that period of time". 33It was submitted that her Honour was mistaken; in truth the applicant had only been at liberty under supervised parole for two periods as an adult, eight months in 2011-2012 and three and a half months in 2013. 34I do not believe there is any merit in this. I consider the above passage to be the product of some inadvertent infelicity of expression which is not uncommon in an ex tempore sentencing judgment. I believe what her Honour intended to convey was that the applicant had been the subject of lengthy parole periods in the past but had not availed himself of the opportunities. 35Her Honour in fact found special circumstances and thereby enlarged the period of the sentence in which the applicant would be eligible for further supervised parole. It would have been unlikely that she would have done so if she had been under the mistaken belief asserted under this ground. Ground 3: The sentence imposed was manifestly excessive 36The submissions of counsel for the applicant took three approaches in arguing that the sentence of 6 years imprisonment was manifestly excessive. First, there was reference to sentencing statistics maintained by the Judicial Commission of New South Wales which indicated that the sentence imposed was at the upper end of the range of sentences which had been imposed in other cases of arson. Secondly, a table of comparative cases was provided. Finally, reference was made to the starting point for the sentence, before reduction on account of the plea of guilty, being 8 years against a maximum penalty of 10 years. 37I do not believe it is necessary to have regard to statistics or so called comparable cases for the determination of this ground. The sentencing judge appears to have accepted that this was a serious example of the offence of intentionally damaging property by fire. She identified a number of factors that pointed to this conclusion but refrained from expressing a definitive finding as to the level of objective seriousness. 38An assessment of sentence before reduction on account of the plea of guilty at 8 years against the maximum of 10 years would have been appropriate if the case was considered to be in, or close to, the worst category. However, if her Honour was of that view, it would be expected that she would have said so. 39Absent any finding being made by the judge, in my view it would have been appropriate for a finding to be made that this offence fell above the middle of the range of objective seriousness but not at or near the top of the range. In my view the sentence of 8 years is manifestly excessive and this court should move to resentence. Considerations on resentencing 40I accept each of the findings made by the sentencing judge as to the objective seriousness of the offence and her identification of aggravating and mitigating features. 41A significant feature of this case is that the offence occurred less than four months after the applicant had been released on parole for earlier serious offences. He has a substantial criminal history and is institutionalised. Such a history has to be viewed in the context of the circumstances of his upbringing, including his introduction to alcohol and drugs at a very young age and the dysfunction that attended his family life from the beginning of his teenage years. 42Two affidavits were read in the event that the Court came to consider resentencing. An affidavit by the applicant included that he was currently taking medication to assist him dealing with depression. He had completed a suboxone (buprenorphine) program. He claims to have remained drug free since about the middle of this year. He said that being off drugs had cleared his mind and he was facing his issues "head on". He was acquiring new skills and considered that he now knew what it would take to break his cycle of bad behaviour and offending. He is currently enrolled in the Violent Offenders Therapeutic Program, which is a 12 month intensive program which he attends two to three times per week. He is otherwise making use of his time by being enrolled in a small business management course and otherwise engaging in employment within the gaol. He maintains contact with his partner, Ms Latimer, who visits him when she is able. They plan to reunite when he is released and he looks forward to being a father to his young son. 43An affidavit by Ms Latimer includes that she too has been working on overcoming her personal difficulties. She had completed a period of residential rehabilitation to overcome her drug abuse and mental health issues. She has not used drugs for almost a year. She had seen what she describes as a dramatic improvement in the applicant. She describes him as thinking much clearer and no longer anxious about everything. She claims that they both realise that when he is released he will need to utilise as much of the support that is made available to him as possible. 44In my view, after an allowance in the order of 25 per cent for the utilitarian value of the applicant's plea of guilty there should be a sentence of imprisonment for 5 years. I would maintain the finding of the sentencing judge of special circumstances but I would not impose a non-parole period in the same proportion to the total term as her Honour did. I consider that a period of 3 years and 3 months is appropriate as the minimum period of actual incarceration having regard to all of the circumstances of the case. Orders 45I propose the following orders: (1)Leave to appeal granted and appeal allowed. (2)Quash the sentence imposed in the District Court on 12 February 2014. (3)Sentenced to imprisonment comprising a non-parole period of 3 years 3 months commencing on 12 February 2014 and expiring on 11 May 2017 with a balance of the term of the sentence of 1 year 9 months concluding on 11 February 2019. ********** 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. Decision last updated: 28 November 2014