SIMPSON v R

Iglesias v R [2006] NSWCCA 261 Springer v R [2007] NSWCCA 289 ; 177 A Crim R 13 R v Ranse NSWCCA (unreported) 8 August 1994 Vaeila v R [2010] NSWCCA 113 R v Cage [2006] NSWCCA 304 CASES CITED : R v Kelly [2005] NSWCCA 280 ; 155 A Crim R 499 R v Ibrahimi [2005] NSWCCA 153 R v Marinos [2003] NSWCCA 136 R v Maloukis [2002] NSWCCA 155 R v Wilson [2001] NSWCCA 399 R v Taylor [2000] NSWCCA 442

PARTIES: Clarese SIMPSON - (Applicant) Regina - (Respondent)

COUNSEL: H Cox - (Applicant) P Ingram (Crown)

SOLICITORS: S Kavanagh - (Solicitor for Public Prosecutions) Aboriginal Legal Service

IN THE COURT OF CRIMINAL APPEAL 2009/10278003

MCCOLL JA HULME J LATHAM J

8 OCTOBER 2010 CLARESE SIMPSON v REGINA Judgment 1 McCOLL JA : I agree with Latham J. 2 R S HULME J : I agree with Latham J. 3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Freeman DCJ (the Judge) on 14 December 2009 on a charge of aggravated steal from the person (s 95(1) of the Crimes Act 1900), an offence carrying a maximum penalty of 20 years imprisonment. The applicant pleaded guilty to the charge in the Local Court. 4 The applicant was sentenced to a non parole period of one year and 10 months, with a balance of term of 2 years. That sentence took into account 2 months of pre-sentence custody. 5 The principal ground of the appeal is that the sentence is manifestly excessive. The applicant also seeks to rely upon material, which was not before the Judge, contained within her affidavit of 8 September 2010, for the purpose of founding a submission that the information before the Court sheds additional light on the circumstances of the applicant at the time of sentence, and therefore warrants intervention. A further affidavit from the solicitor appearing for the applicant below is said to explain how the material could not have been ascertained before the sentencing proceedings. 6 The offence was committed on 26 January 2009 upon a woman who was using the toilet facilities at Redfern railway station. The woman had hung her bag on the hook fixed to the inside of the toilet cubicle door. The applicant reached over from the adjoining cubicle with an umbrella and took the bag from the hook. In the course of lifting the bag out of the cubicle, the woman was struck in the head, causing bruising and swelling. These injuries qualified as the circumstance of aggravation. The victim did not see what struck her. The applicant later claimed the bag collided with the victim's head in the process of its removal from the cubicle. 7 The applicant was confronted a short time later and admitted the offence, saying, "I just needed some pills". The bag was recovered, minus a St George cash card, mobile phone and a small quantity of cash. The Judge found that the offence was "slightly below the mid range of objective seriousness for offences of this description", that is, for offences of steal from the person. 8 In view of the narrow compass of this appeal, it is not necessary to refer to the Judge's remarks at length, about which there is no complaint. The salient feature of the remarks for the purposes of the argument as to "fresh evidence" is the following :- Ms Simpson is now pregnant with her eighth child. Of the seven living children, none are in her custody. Five are scattered between various members of the extended family, and the two youngest children are apparently in the care of her mother. Indeed, they were removed from Ms Simpson's custody on 26 January by the Dept of Community Services and the offender testifies that it was as a result of that traumatic experience that she sought oblivion in drugs on that day. …………………………. It seems to me that Ms Simpson requires assistance in a number of areas of her life. She clearly needs drug and alcohol counselling. She also needs to learn some parenting skills, and she needs, if possible, to improve her educational standards with a view, ultimately, to her becoming employable. …………………… There is no explanation or exploration of the reasons why these two children were removed from her, but I am not in a position to find that she was abusing drugs at that time because there is no evidence to that effect. Clearly, if she was not, she needs all the more lessons in the proper care and upkeep of young children. She will, for those reasons, require a period in custody which will be sufficient to allow her to engage thoroughly and become accustomed to the process of rehabilitation and she will require prolonged supervision upon her release from custody to ensure that those lessons are not only well and truly learned, but are followed. I accept the submission that rehabilitation is difficult for long-term offenders without long-term supervision, and I identify that as a reason for having reduced the period of the complete custody by lengthening the period during which she will be under supervision upon her release. Nonetheless, as I said, specific deterrence, punishment for this offence, denunciation of this offence, all combine to militate in favour of a reasonably substantial term as the minimum which she must spend in custody. I note that she is now some five months pregnant, the opportunity will therefore exist for her to learn to care for her child in custody in a controlled environment which may be of assistance to her and thus of assistance to the community in general, if it assists in her rehabilitation. 9 Essentially, the applicant's argument is that the Judge structured the sentence in the way that he did in reliance upon the fact that the applicant would give birth to the child in custody and thereafter have the care of the child, thereby providing the opportunity for the applicant to learn parenting skills and indirectly assist in her rehabilitation. It was submitted that these circumstances "clearly had a significant impact on his Honour's intention to impose a relatively lengthy non-parole period." 10 In fact, the applicant's child (a daughter) was removed from her care immediately after she was born. The child remained in hospital and the applicant was returned to gaol, from where she made an application to the mother and babies unit, which she did not pursue. 11 The applicant went further and submitted that, had the Judge been informed that the child would be removed from her care immediately after birth, and that she would have restricted access to her baby (two hours every two months), causing the onset of depression, the Judge "may well have taken a different view as to the appropriate length of the non-parole period" and the balance of term.

12 When asked what that different view may have been, the applicant's counsel contended that the Judge would have imposed a lesser sentence and a lesser non parole period. For my part, I find that suggestion problematic. On the one hand, it assumes that the Judge imposed a sentence which was longer than the objective and subjective circumstances otherwise warranted, solely on account of the fact that the applicant would be caring for an infant in custody. That approach to sentencing would give rise to error. On the other hand, it assumes that the Judge would have further reduced the non parole period so that the applicant could be re-united with her child, when the evidence before the court was that all of the applicant's children had been removed from her care. 13 It was also submitted that due diligence would not have established that the child would be removed, given that the availability of accommodation for mothers and babies in custody varies from month to month and cannot be accurately predicted four months in advance. That submission ignores the proceedings taken by the Department of Community Services to remove the two children remaining in her care in January 2009. I have no doubt that, had the applicant's solicitor made an enquiry of the Department, its intention to apply to remove the baby as soon as possible would have been disclosed. 14 A further difficulty with this argument is that there is nothing in the submissions advanced on the applicant's behalf below, or in the Judge's remarks, that supports the conclusion that the applicant's pregnancy, or the prospect that her child would, or would not, remain in her care, was a significant factor in the sentence the Judge imposed. The only reference to the applicant's pregnancy appears at the very end of the submissions advanced just before sentence was delivered, where the applicant's solicitor said "Your Honour is also aware that she's five months pregnant" to which the Judge replied "Yes, I know that, I know that." 15 The Judge merely notes that fact in his remarks. A potential consequence of that fact was the opportunity for the applicant to learn parenting skills in custody. At no stage did the applicant give evidence of her intention to apply for a place in the mother and babies unit. Her evidence was almost entirely restricted to her drug abuse and her efforts at rehabilitation. At no stage was the availability of places in the mother and babies unit, or the policies of the Corrective Services Department in that regard, canvassed before the Judge. These matters were within the knowledge of the applicant and her legal representatives at the time of sentence. 16 In the absence of any discussion on this subject, it is difficult to understand how the Judge's remarks can be interpreted in the manner contended for by the applicant. The Judge was not asked to place any reliance upon the likelihood or otherwise that the applicant would have the care of her child in custody. The remarks reflect the Judge's understanding that the applicant's pregnancy was one subjective factor among many. 17 I turn to the question whether the material contained within the affidavits is capable of qualifying as "fresh evidence" for the purpose of admitting that evidence on the hearing of the appeal. The following passage from the judgment of McClellan CJ at CL in Iglesias v R [2006] NSWCCA 261 delineates the exceptional circumstances when fresh evidence will be received :- 8. The conventional approach of this Court when error is not suggested to have occurred in the original sentence is that evidence of events occurring subsequent to sentence will not be admitted, the appropriateness of the sentence being determined by consideration of the facts before the sentencing judge. As Street CJ said in R v Munday [1981] 2 NSWLR 177 at 178 with the concurrence of Moffitt P and Lee J: "It has been made plain in this Court on many occasions that the court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court." 9 See also R v Cartwright (1989) 17 NSWLR 243; R v Goodwin (1990) 51 A Crim R 328 at 330. 10 Notwithstanding this general approach this Court has determined that in exceptional circumstances, particularly where a medical condition which existed at the time of sentencing but has later been found to be extremely serious, fresh evidence may be received. That evidence may, in appropriate circumstances, cause this Court to intervene and resentence. The relevant principles were considered in R v Bailey (1988) 35 A Crim R 458 where an applicant said that he had shared needles with other remandees whilst waiting to be sentenced. A subsequent test showed that he was HIV+ although the disease had not been diagnosed at the time the applicant was sentenced. Lee J with whom Maxwell and Yeldham JJ agreed said (at 462): "In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact, in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. It has, for a long period of time, been the practice in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Considerations of health are in this category." 11 In a decision of the Court of Criminal Appeal in South Australia, Smith (1987) 44 SASR 587, there was evidence before the sentencing judge that the applicant had tested positive for the HIV virus. However, King CJ, with whom Cox and O'Loughlin JJ agreed reopened the sentencing proceedings after having determined that events occurring after sentence showed the true significance of facts which were in existence at the time of the sentence was imposed (see R v Ehrenberg (unreported NSWCCA, 14 December 1990)). 18 In Springer v R [2007] NSWCCA 289 ; 177 A Crim R 13, the Chief Judge repeated these observations and noted the following circumstances where the Court had allowed fresh evidence to be admitted :- · Evidence which shows that the applicant's treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir (2004) NSWCCA 166 in which reference was made to Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley (2004) NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted. · Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance than the police evidence had revealed to the sentencing judge ( R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233). · Evidence of circumstances relevant to the sentence which, although in existence at the time of sentencing, were not discovered until after the sentence had been imposed. For example, where the offender was only found to be suffering from AIDS after sentence but was obviously infected at the time of sentence ( R v Cartwright (1989) 17 NSWLR 243 at 257; R v Bailey (1988) 35 A Crim R 458 at 462). A similar approach may be taken when, although symptoms may have been present their significance may not have been appreciated at the time of sentencing ( Iglesias ). · Evidence of facts or events occurring after sentencing, which show the true significance or provide the basis for a full appreciation of facts in existence at the time of sentencing ( R v Smith (1987) 44 SASR at 588 per King CJ; R v P [2003] NSWCCA 298 at [19]; R v MJM [2004] NSWCCA 66 at [46]). · Evidence which demonstrates that the sentencing judge has drawn inferences on a misunderstanding of tendered medical evidence. ( R v Swindale, Court of Criminal Appeal, 22 June 1998, unreported; R v Goodwin (1990) 51 A Crim R 328). · Evidence indicating that the offender knew of the existence of facts, but did not realise their significance at the time of sentencing and could not inform the legal advisers of them ( R v Goodwin (1990) 51 A Crim R 328 at 330 per Hunt J; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM [2004] NSWCCA 66 at [46]). 19 The underlying principle is that fresh evidence will only qualify as such if the condition or circumstance was not made known to the court, although symptoms were in existence at the time of sentence, or where the true scope or significance of the relevant condition or circumstance, which was known at the time of sentence, was not appreciated by the sentencing judge, either because the judge was misled, or because the sentencing exercise proceeded upon an expectation that the condition would be managed in a particular way and that expectation is not realised. 20 The applicant's condition, that is, her pregnancy, was made known to the Judge. There was no lack of appreciation on the Judge's part of the significance of the fact that the applicant would give birth in custody, but it was never suggested, by the applicant's legal representative or by the Judge, that the applicant's ability to care for the child in custody was a more important factor in her rehabilitation than drug and alcohol counselling, or that it affected the conditions of her incarceration, or her mental health. In view of the fact that all of the applicant's children had been removed from her care, as tragic as that may be, there was no reason to think that there was anything exceptional about the applicant's latest pregnancy. 21 The applicant did not contend that there was any incompetence on the part of her solicitor below, or that there was a relevant failure to adequately represent her. The applicant's affidavit establishes that the application to the mother and babies unit was allowed to lapse and the applicant consented to orders in the Children's Court on 5 July 2010 that the child be placed in care.

22 I am not satisfied that the evidence which the applicant seeks to have admitted on the appeal qualifies as fresh evidence. The only remaining question is whether the sentence can properly be characterised as manifestly excessive. 23 The Judge recognised that, in terms of aggravating circumstances, the reckless infliction of actual bodily harm placed this offence at the lower end of the spectrum. The Judge also found that the offence was relatively spontaneous and that the applicant was not an appropriate "medium for the exhibition of the full weight of general deterrence". With respect to the Judge, the latter was a generous finding. 24 Despite the offence falling short of a robbery, in the sense that the victim was not compelled by force or threats to part with her property, it was effectively an example of "bag snatching". It is relevant therefore to recall the comments made by Gleeson CJ in R v Ranse NSWCCA (unreported) 8 August 1994, wherein the Court considered a number of instances of "bag snatching" :- One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present respondent are not trivial instances of disrespect for private property. They are serious breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect. 25 These remarks have been cited with approval on many occasions : Vaeila v R [2010] NSWCCA 113 ; R v Cage [2006] NSWCCA 304 ; R v Kelly [2005] NSWCCA 280 ; 155 A Crim R 499 ; R v Ibrahimi [2005] NSWCCA 153 ; R v Marinos [2003] NSWCCA 136 ; R v Maloukis [2002] NSWCCA 155 ; R v Wilson [2001] NSWCCA 399 ; R v Taylor [2000] NSWCCA 442.

26 Marinos, Maloukis, Wilson and Taylor were all cases of "bag snatching", although not necessarily charged under s 95 of the Crimes Act. In the instant case, the maximum penalty of 20 years imprisonment signalled the gravity with which offences coming within the section are regarded by the legislature. As the above decisions make clear, general deterrence is an important consideration in sentencing for offences such as "bag snatches". 27 The applicant principally relies upon the JIRS statistics, whilst acknowledging that they do not differentiate between robberies and offences more appropriately described as steal from the person. Accepting that the applicant's sentence was structured to give her the benefit of two months pre-sentence custody, the sentence of 4 years falls slightly above the median of the range of sentences for s 95(1) offences (2 to 6 years). At first blush, that appears stern, but specific deterrence and punishment played a prominent role in the Judge's consideration of sentence. 28 The applicant had a traumatic childhood at the hands of abusive and alcoholic parents until she went to live with relatives at the age of 10. At the age of 16 she gave birth to her first child. She was in a decade long relationship with a man who was violent and who introduced her to drugs. That relationship resulted in the birth of six children. The applicant's pregnancy at the time of sentence arose out of a recent relationship with another man. The applicant's employment has been sporadic and in low skilled positions. Her introduction to cannabis at the age of 14 and to heroin at the age of 16 has resulted in long-term drug abuse and numerous convictions for steal from the person, larceny, and demand money with menaces. In March 2003 and again in October 2005, the courts imposed conditions on the applicant, including her attendance at drug rehabilitation programs. The applicant is presently 30 years of age. On the day of the offence, she was under the influence of alcohol, heroin, cocaine and ecstasy. 29 In my view, the sentence was within an available range, taking into account the objective and subjective factors. The non parole period represents half of the head sentence and reflects a finding of special circumstances, based upon the applicant's need for long term supervision. No lesser period in custody is warranted. 30 I propose the following orders :- 1. Leave to appeal granted. 2. Appeal dismissed. **********

11/03/2011 - Correct identification of RA Hulme J (NOT Hulme J) - Paragraph(s) 2

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.