R v Simmons (No 8) [2015] NSWSC 627

Supreme Court New South Wales

Medium Neutral Citation: R v Simmons (No 8) [2015] NSWSC 627 Hearing dates: 20, 21 May 2015 Date of orders: 21 May 2015 Decision date: 21 May 2015 Jurisdiction: Common Law Before: Hamill J Decision: Sentenced to a non-parole period of two years commencing on 26 July 2013 and expiring on 25 July 2015.

There will be a balance of term of nine months expiring on 25 April 2016.

In accordance with s 50 of the Crimes (Sentencing Procedure) Act I direct that the offender be released to parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW – sentencing – assault occasioning actual bodily harm – serious example of offence – alcohol fuelled violence – no question of principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: EK v R [2010] NSWCCA 199 Melbon v R [2013] NSWCCA 2010 Montero v R [2013] NSW CCA 214 Oh v R [2010] NSWCCA 148 R v Simmons (No 7) [2015] NSWSC 574 Category: Sentence Parties: Crown Tony James Simmons (Accused) Representation: Counsel: P Barrett (Crown) P Young SC (Simmons)

Solicitors: DPP (Crown) Mathew Lorkin Solicitor (Simmons) File Number(s): 2013/15065

EX TEMPORE Judgment 1. For the last 14 weeks Tony Simmons (who I will refer to as "the offender"), has been on trial on an indictment containing two counts. First, the murder of Andrew Russell between 1 and 20 June 2009 at Sofala and, second, the assault occasioning actual bodily harm of Mr Russell on 20-21 March 2009 at Kelso. 2. On arraignment he pleaded not guilty to count one and guilty to count two. The trial was by judge alone and yesterday I found the offender not guilty of murder: see R v Simmons (No 7) [2015] NSWSC 574. On his plea of guilty, and on the evidence adduced in the trial, he was convicted of the count of assault occasioning actual bodily harm. 3. In the course of the trial, I heard various accounts of the assault. These came from the offender himself, his girlfriend (Jodi Biles), a friend of the offender (Jakob Peters), a neighbour (Joanne Skinner), and the step-sister of Mr Russell (Kiara White). Ms White provided a version to the police completely at odds with the version she gave in evidence. I suspect that there may be truth in both versions of events. 4. Based on all of that evidence, my findings as to the facts of the assault are these: 1. In March 2009 the offender, his girlfriend and two of their children were living with the victim at 9 Cripps Place Kelso. The victim was the leaseholder of those premises. 2. On 20 March 2009 the offender was at a party and the victim was at home with Jodi Biles, the children and his step-sister, Kiara White, who was visiting. 3. At some stage the victim called police complaining that his sister was refusing to leave. The radio operator said that he appeared to be drunk. A Constable Flynn attended at around 10.40 pm. The victim was asleep. She spoke to Ms Biles and Ms White. Then she left. 4. At some stage, probably after that attendance by the police, the victim got into a heated argument with Jodi Biles. This resulted in a physical altercation during which Ms Biles punched the victim and the victim fell face first on to a concrete path in front of the house. He suffered an injury to his face, an abrasion or similar. It was not serious. The victim locked Jodi out of the house and the children were still inside. 5. Jodi called the offender who returned home. There was a minor physical altercation between the offender and the victim. The offender left to return to the party. He warned or threatened the victim, "if anything else happens, it will be on." 6. Some time after that, Ms Biles again called the offender complaining about the victim's conduct. He returned home. There was then a fight but, according to Ms Biles, the offender was doing most of the fighting. He repeatedly punched the victim and then kicked him and I infer from the evidence that he kicked him when he was on the ground. 7. Police attended again in the early hours of the morning. The victim had severe swelling and bleeding to his face. The offender had grazing to his knuckles and he told police that that resulted from punching the house. The victim was taken away in an ambulance. 1. As a result of the assault the victim suffered a number of injuries: 1. Multiple bruises all over his body; 2. Tenderness to his upper spine; 3. Bruising to his upper arm and shoulder blade; 4. Trauma (but no fractures) to his left knee and elbow; and 5. Prominent soft tissue swelling (but no fractures) around the face and eyes, particularly the right eye. 1. In addition to the physical injuries occasioned by the victim, the evidence in the trial also showed that Mr Russell also suffered significant emotional scars. He was afraid to return to the premises in Cripps Place and had arranged to move to new assisted housing rather than to return there. In the meantime he was drifting between his father's home and that of his cousin Jamie. The victim was a sickly man who suffered from a severe liver disease and autoimmune hepatitis. 2. I accept that the offender was intervening on behalf of his girlfriend but I do not accept that there was provocation on the part of Mr Russell in the sense that it is a mitigating feature either at common law or under s 21A(3)(c). However I take into account the fact that the offender was called to the scene by Jodi Biles and was motivated to protect her and her children. As far as I can tell that is the only matter that mitigates the criminality to any substantial degree. 3. A significant aggravating feature is the fact that the victim was vulnerable as a result of his ill health. The act of kicking such a man is a particularly cowardly act. 4. Another feature relevant to the proper assessment of the objective seriousness of the offence is the fact that the offence was committed in the victim's home. As I have said, the victim was afraid to return there after the assault. Of course it was also the home of the offender and Ms Biles. Reference was made to a case of EK v R [2010] NSWCCA 199 where it was held by RA Hulme J: "It is an aggravating circumstances where an offender intrudes into the home and not where the offender and a victim reside together." 1. That matter is not free of controversy and the Court of Criminal Appeal (including his Honour, RA Hulme JA) has said that it may need to re-examine that statement of principle and that it may not accord with the plain words of s 21A(2)(eb): Melbon v R [2013] NSWCCA 2010 at [1]-[2] and [43]-[44]. See also Montero v R [2013] NSW CCA 214 and the comments of Kirby J in Oh v R [2010] NSWCCA 148 at [40]. 2. I do not have to attempt to resolve this issue here as the learned Crown Prosecutor has expressly indicated that it does not rely on the matter as an aggravating feature under s 21A(2)(eb). However, I do take into account in assessing the objective seriousness of the crime the fact that the victim was in his own home and in a sense had nowhere to which to escape. 3. Weighing up all of those features I assess the objective criminality as being high. It is a serious example of an offence of assault occasioning actual bodily harm. 4. The offender has a criminal record commencing in 2004. There are a number of driving offences, some of which were obviously quite serious and resulted in community service orders and periodic detention. There are also drug offences, a serious dishonesty offence ("break and enter") and offences of violence. The criminal record continued after the commission of the present offence. That is relevant to his prospects of rehabilitation but is not part of his antecedent (or prior) criminal history. 5. Prior to the present offence he was given a bond under s 10 for destroying property in 2004. In 2005 and 2006 he was fined $800 and $300 for two separate offences of common assault and was also fined $200 for breaching a domestic violence order. 6. Since the commission of this offence he was placed on a 12-month good behaviour bond for common assault in July 2009. He breached that bond one month later by committing an offence of on-going supply of drugs and was then sentenced to three years' imprisonment with an 18-month non-parole period. 7. In March of 2011 he was sentenced to three months imprisonment for affray. In July he was sentenced to four months imprisonment for the break and enter. 8. Between September 2012 and January 2013 in the course of the undercover police operation that led to his being charged with murder, the offender expressed a willingness to involve himself in a diverse array of criminal offences. This included [REDACTED]. At one stage he told the undercover officers that he was willing to do anything. 9. The offender's prior convictions disentitle him to leniency. His subsequent offending and willingness to commit offences are relevant to his prospects of rehabilitation. On the evidence available to me I find that his prospects of rehabilitation are poor. I do not go further and find that his record is an aggravating feature in the sense that I can positively find that he represents a future danger to the community. 10. There is a good deal of evidence before me that the offender has been a user of drugs for many years. I am told that he has undertaken urine testing while in gaol. I suspect that if he remains free of drugs he may have some prospects of living a useful life. 11. There is no evidence that the offender has shown any remorse at all for his conduct towards Mr Russell. The evidence of his conversations with undercover police suggests that he has no remorse at all. 12. There has been a substantial delay between the time of the commission of the offence and today's sentencing proceeding. Delay is often an important feature of the sentencing exercise. However in the circumstances of the present case delay cannot properly be considered as a mitigating feature. For one thing there is no evidence of rehabilitation in the intervening period. The evidence is to the contrary. The offender committed further offences including offences of violence after this offence and has been on remand since January 2013. There is no evidence of his progress while in custody. More significantly, the reason for the delay is that the offender lied to police and allowed his then girlfriend, Jodi Biles, to take the blame for the assault. In fairness to the offender, it seems that Ms Biles hatched this plan herself but the offender was more than happy to go along with it. 13. On 24 July 2009 the offender made a statement in full knowledge that Mr Russell had gone missing. The offender deliberately misled the police as to his involvement in the assault. He said that he had only hit Mr Russell once. He was more than happy to let his girlfriend take the blame. 14. I must take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 199 (NSW) and I do so. 15. It is conceded on behalf of the offender that the only appropriate sentencing option is one of full time imprisonment. I considered suspending the sentence taking into account the lengthy period of pre-sentence custody and the offender's need for supervision on release. The benefit would be a longer period of supervision in the community than that that would occur if a full time gaol sentence is imposed. 16. However, a suspended sentence can only be imposed if the total sentence is less than two years. Further, I have concluded that a suspended sentence would fail to reflect the need for denunciation of the offender's conduct and deterrence of other offenders. This was an example of alcohol-fuelled violence and such conduct must be deterred. 17. Accordingly I have concluded that the only appropriate sentence is one of full time imprisonment. I have considered the statistics provided by the Judicial Commission with the circumspection that is required and I am of the view that the sentence that I propose falls within the appropriate range that is disclosed by those statistics. 18. It is difficult to assess the utilitarian value of the offender's plea of guilty in circumstances where both parties have at all times been focussed on the more serious charge and where the evidence relating to the assault was always going to be led in the trial for murder. However, the plea was not entered until the matter came to the Supreme Court. As I understand it the plea was entered on arraignment. That plea disclosed a willingness to facilitate the course of justice but its utilitarian value was not high. I will allow a discount of around ten per cent. The parties, both of whom are represented by extremely experienced counsel, agree that that is about right in all of the circumstances. 19. The offender has been in custody since his arrest on the murder charge on 16 January 2013. However, he was not charged with the assault occasioning actual bodily harm offence until 26 July 2013. It is appropriate that the sentence commences on that date. Again both experienced counsel agree that that is an appropriate commencement date for the sentence. 20. I consider that a starting point of three years is appropriate taking into account all of those factors. Allowing for a discount of just under 10% for the plea of guilty, the total sentence will be one of two years and nine months. Making a very slight adjustment to the usual 75% ratio required by s 44 by way of rounding, the non-parole period will be two years. I do not think it is necessary but, if it is, I make a finding of special circumstances under s 44 to enable that slight rounding down to occur. 21. Mr Simmons, for the offence of assault occasioning actual bodily harm I sentence you to a non-parole period of two years commencing on 26 July 2013 and expiring on 25 July 2015. There will be a balance of term of nine months expiring on 25 April 2016. In accordance with s 50 of the Crimes (Sentencing Procedure) Act I direct that you are to be released to parole at the expiration of the non-parole period. 22. ADDENDUM: In revising this ex tempore judgment since imposing sentence I realised that I did not refer the maximum penalty. The maximum penalty under s 59 Crimes Act 1900 is 5 years. I confirmed this in the course of submissions and took it into account in the synthesis of legal and factual matters relevant to the appropriate starting point for the sentence.