Simpson v R

Court of Criminal Appeal (NSW)|2015-03-13|Before: Macfarlan JA, Simpson J, Schmidt J, Spigelman CJ, MacFarlan JA

Judgment

MACFARLAN JA: I agree with Schmidt J.
SIMPSON J: I agree with Schmidt J.
SCHMIDT J: The applicant, Mr Danny Simpson, seeks leave to appeal against the sentence imposed upon him by Conlon DCJ in February 2014 after he was convicted at trial of one offence under s 59(2) of the Crimes Act 1900 (NSW) of assault occasioning actual bodily harm and another offence under s 35(4) of reckless wounding. They were both committed within a short period on or about 5 August 2011, against the same victim.
The sentences imposed were: Count 1 - Assault occasioning actual bodily harm in company under s 59(2) of the Crimes Act with a maximum term of 7 years imprisonment and no standard non-parole period: A fixed term of 18 months imprisonment to commence on 28 July 2013 and expire on 27 January 2015. Count 2 - Reckless wounding under s 35(4) of the Crimes Act with a maximum term of 7 years and a standard non-parole period of 3 years: Imprisonment for a term of 4 years, comprised of a non-parole period of 2 years and 9 months to commence on 28 July 2013 and to expire on 27 April 2016 with a balance of term of 15 months to expire on 27 July 2017.

Ground one - mental illness and Ground two - special circumstances

The parties dealt with these grounds together.
The extent to which mental illness is taken into account involves the exercise of a discretion that is not lightly disturbed on appeal (see Spaliviero v R [2012] NSWCCA 189). The degree of any departure from the statutory ratio between the parole and non-parole periods fixed by s 44 of the Crimes (Sentencing Procedure Act) 1999 (NSW) is also a discretionary matter, which, as Spigelman CJ explained in R v Cramp [2004] NSWCCA 264 at [31], "raises so many matters of a discretionary character that this Court should be very slow to intervene."
Mr Simpson's case was that after the trial, it became apparent that he suffered from chronic paranoid schizophrenia. He manifested severe symptoms of psychosis while in custody, with the result that he would require lifelong psychiatric care and treatment.
Mr Simpson acknowledged that Conlon DCJ had accepted the evidence that he suffered a mental illness and was persuaded that he required some leniency, as a result. It was argued, however, that his Honour made no reference to the principles applicable when persons suffering mental illness are sentenced. He did not articulate how the illness was relevant to the sentencing exercise and was silent as to whether that illness warranted some amelioration in the application of considerations of general and specific deterrence.
On the evidence, before he went into custody Mr Simpson had been diagnosed with mental health problems and had been treated for delusions and persecutory beliefs. It was after he went into custody, that he had suffered a significant deterioration when he was diagnosed to be suffering schizophrenia. The result, it was argued on appeal, was that his custody was significantly more onerous and that general and specific deterrence ought to have featured less in his sentence.
It was also argued that only a minor variation in the statutory ratio had flowed from his Honour's finding of special circumstances, with the result that there had been little practical alleviation of his hardship in custody or promotion of his reintegration into the community on release. This had been the result of error of the kind discussed in Cranshaw v R [2009] NSWCCA 80, R v SJD [2004] NSWCCA 182 at [50] and Jackson v R [2010] NSWCCA 162.
I do not consider that these alleged errors have been established.

The facts

His Honour found that before the jury, Mr Simpson gave evidence that in August 2011, he had a boyfriend/girlfriend relationship with a Ms O'Brien. She visited him on 5 August, together with some friends, who had driven to Dapto from the Forster/Taree area. They arrived after 9pm and Mr Simpson invited them all in. He was there with some others, including the victim, Mr Judd, who Mr Simpson had known for some 6 months.
The atmosphere that night was tense. There was banter in which Mr Simpson, Mr Judd and another person present, Darren Hall, were involved, in which it was suggested that Mr Judd was a police informer. Ms O'Brien became so concerned that she and the others with her left. Mr Simpson and Mr Hall followed them and pressured them to return. Ms O'Brien sent a text message, seeking help from a Mr Cox. They managed to leave and get into his car when he arrived. Ms O'Brien then phoned Mr Judd and told him to make an excuse and leave. He went outside and asked her to come to get him.
Mr Judd then saw Mr Simpson approaching him, with Mr Hall and Mr Crowther following. Mr Simpson began pushing him with his belly, telling Mr Judd to go back inside, and trying to grab him by the arm. He was surrounded by the three men, but managed to run to the corner. They followed. Not being able to outrun them, he stopped and faced them.
Mr Hall then held him by the shoulder, while Mr Crowther punched him in the forehead, with what he believed was a type of knuckle duster, which lacerated his forehead. He was dazed, but saw Mr Simpson approaching, waving a knife, which came into contact with his left hand. Mr Judd ran away again and Mr Simpson and those with him ran back towards the house. Mr Judd lost his breath and began walking. He was then approached by a red Ford Fairmount being driven by Mr Hall, with Mr Simpson in the front seat.
Mr Simpson jumped out and attacked Mr Judd again, accusing him of being a police informant. Mr Simpson told him to stay away from Ms O'Brien and said that he was going to kill Mr Judd and his family. Mr Judd attempted to leave, but Mr Simpson was slashing at him with the knife. Mr Judd kept trying to push his hand away and received another wound to the palm of his left hand.
Mr Judd then heard Mr Hall call out "Get in the car, don't be an idiot". Mr Simpson and Mr Hall drove off. Mr Judd staggered off and was assisted by an unknown person. Mr Cox and Ms O'Brien then located him and took him to hospital, where his wounds were treated, with butterfly clips to his forehand and sutures to the palm of his hand.
Mr Simpson was arrested at his home at 4.30 am. He then denied any knowledge of the incident, Mr Judd, Ms O'Brien or the others who had been present at his home. He told police that he had driven around for most of the day and evening with his own group of friends.
Mr Simpson later gave evidence at trial, where he suggested that it was Mr Hall and Mr Crowther who had assaulted Mr Judd and that he was a peacemaker who had tried to assist him. His Honour considered that the manner in which he gave evidence was not only rather pathetic and totally lacked credibility, but that it would have been a simple task for the jury to reject his version in its entirety. His Honour observed that "they did exactly that". By comparison, his Honour noted, the prosecution witnesses had all given credible evidence.

Sentencing remarks

Conlon DCJ noted that Mr Simpson was on parole when he committed these offences. Nothing which Mr Judd had done had provoked the assaults upon him. Mr Simpson had led the charge against him. It was he who struck Mr Judd with the knife. He had time to gather his thoughts when Mr Judd left, but got into the car with Mr Hall and pursued Mr Judd and then wounded him again. His Honour found that the experience would have been terrifying for Mr Judd.
His Honour noted that Mr Simpson did not have an extensive criminal history, but that it concluded by using a prohibited weapon without a permit, for which he received a 12 month s 9 bond; possessing and selling a shortened firearm; goods in custody and breach of bond.
His Honour took account of a presentence report which he noted outlined that Mr Simpson had had a well provided upbringing, despite frequent absences by his father, who was employed as a mine manager. His parents had recently divorced and he had not, had much recent contact with his family. He had obtained his School Certificate and had pursued intermittent employment in unskilled positions, in the construction industry. Mr Simpson had three children, but limited opportunity to see them, because of periods of incarceration.
Mr Simpson was a heavy drinker, who consumed one to two bottles of vodka daily and had a history of abusing cannabis from age 11. By age 15 he was using ice and cocaine. By 18 he was using ecstasy, with ice remaining his drug of choice. At the time of the offence he said that he was on a 2 week bender, using ice which he had obtained free of charge.
There had been a past diagnosis of polysubtance abuse, drug induced psychosis and an underlying psychotic illness. Mr Simpson had stopped using his medication prior to the offences against Mr Judd, in favour of alcohol abuse and illicit substances.
It was noted that Mr Simpson said that he had an unclear recollection of the offences, but admitted his behaviour was unacceptable and expressed regret for his actions. How much insight he had into his offending was considered to be unclear. It was observed that while he expressed willingness to address his behaviour, he seemed detached from that notion.
Two psychiatrists reports were also tendered. In February 2014, Dr Gordon Elliot considered that Mr Simpson was psychotic, either as a result of an amphetamine induced psychosis, or an exacerbation of schizophrenia. His medication had been increased, but continued psychotic symptoms and auditory hallucinations but had been observed. There were also delusional beliefs regarding Sandra Sully and John Ibrahim, the leader of a motorcycle gang who he believed was his father. Mr Simpson's medication had been increased as a result.
Mr Simpson gave Dr Elliot an account of his offending, which included being awake for 2 weeks straight; smoking $300 worth of ice every 24 hours; being involved in a fight, which he did not remember; although others said he attacked his victim with a knife, he was not the type to cause fights. Later Mr Simpson said that voices were telling him to get Mr Judd.
Dr Elliott was sceptical about this information, which contradicted his claim of innocence and the manner in which it was volunteered. Despite this reservation, Dr Elliott concluded that Mr Simpson would require lifelong psychiatric care, given that his symptoms persisted, despite high dose treatment. Long term compliance would be increased with long acting injectable anti psychotics.
In November 2013, Dr Chan documented other psychotic symptoms, including that his girlfriend was Dannii Minogue and that he received messages from radio and TV.
Mr Simpson was diagnosed to be suffering from schizophrenia. He had two episodes of similar, but less psychotic, symptoms documented in 2004. The current episodes had lasted for several months and had worsened despite treatment. It was also possible that he was suffering a substance (methamphetamine) induced psychosis. The worsening symptoms made this less likely.
Conlon DCJ found that Mr Simpson's psychiatric condition had worsened while he was in custody. Conlon DCJ also noted, however, that in his police interview, Mr Simpson did not appear to be psychotic in any way. Nor did he appear psychotic when he gave evidence. Then he gave a very good account of himself. None of the witnesses called suggested that Mr Simpson was suffering any psychosis, when he committed these offences. In the result, his Honour concluded that there was insufficient evidence to make a finding that Mr Simpson was suffering any mental health issue, which provided a causal link to his offending behaviour.
It was not suggested on appeal that his Honour had erred in reaching this conclusion.
Conlon DCJ did accept that Mr Simpson's offences were committed while Mr Simpson was under the influence of drugs and alcohol. He found, in light of his more recent mental health problems, that his prospects of rehabilitation depended on psychiatric care in custody and after release.
On the basis of that recent history, his Honour also concluded that the sentences imposed on Mr Simpson would be made entirely concurrent, with a finding of special circumstances and a departure from the standard non-parole period, to which he noted he had regard, as well as the maximum applicable sentences.

The applicable principles

While his Honour did not accept that Mr Simpson's offences were caused by the mental illness which he suffered, consistently with his own observations, the evidence and Dr Elliott's reservations, he did accept that this illness had to be taken into account in the sentencing exercise.
His Honour did not discuss the applicable principles in his sentencing remarks, but that he had regard to them is apparent from his approach to this sentencing exercise. These principles were discussed in Director of Public Prosecutions (Cth) v De La Rosa, [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].
The case advanced for Mr Simpson on sentencing was that his Honour could take his mental illness into account on the question of not making him a vehicle for general deterrence and that it should be accepted that it would make his time in custody a little more onerous.
The sentencing exercise had to commence from a consideration of the objective seriousness of Mr Simpson's offending and in the case of the s 35(4) offence, his moral culpability also had to be assessed. The applicable maximum sentences for the two offences for which Mr Simpson was being sentences were 7 years, with a standard non-parole period of 3 years for the s 35(4) offence, two statutory guideposts which had to be taken into account (see Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]). His Honour found that the offences were not the result of Mr Simpson's mental illness. That he was on a two week bender on ice, when he committed these offences, as he later told those who examined him, was not a mitigating factor to be taken into account on sentence.
Mr Simpson's mental illness was, however, a part of the subjective circumstances which his Honour properly took into account. The risk of Mr Simpson re-offending, was also a relevant factor to be taken into account in setting the minimum term (see Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 537).
The result of his Honour's approach, it will be remembered, was a term of 4 years imprisonment with a non-parole period of 2 years and 9 months, representing 69% of the total term, with the two sentences being made completely concurrent. That non-parole period is the minimum period of actual incarceration that Mr Simpson must spend in full-time custody, having regard to all the elements of punishment including rehabilitation, the objective seriousness of his offences and his subjective circumstances (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628-629).
This was not a heavy sentence for Mr Simpson's serious offences. Given all of these matters, while his mental illness reduced the role which general deterrence had to play in the sentence imposed upon him, given the nature of his mental condition, specific deterrence and protection of the community plainly had to play a significant role in determining that sentence. That was reflected in the result to which his Honour came. That his Honour erred in his consideration of any of these matters has not been established. The sentence imposed has not been shown to be more severe than appropriate in all of the circumstances (see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477).
His Honour's finding of special circumstances permitted a lowering of the non-parole period below the 75% statutory ratio, to the 69% which his Honour adopted. It is not suggested that this departure from that ratio, was the result of any miscalculation or inadvertence. A 3 year non-parole period was appropriate in the circumstances, according as it did with the period of supervision ordinarily provided for as a condition of parole under cl 228(1) of the Crimes (Administration of Sentences) Regulation 2008 (repealed) (now cl 218 of the Crimes (Administration of Sentences) Regulation 2014). None of the authorities relied on, on appeal, provided any basis for a conclusion that his Honour fell into any error, concerned as they were with cases where a conclusion that there should be a departure from the statutory ratio, had not been given practical effect. That did not occur in Mr Simpson's case.
In the result, I consider that while leave to appeal on this ground should be granted, the appeal must be dismissed.

Ground 3 - manifest excess

There is no single correct sentence, in any sentencing exercise. In order to establish manifest excess, an appellant must establish that a sentence was unreasonable or plainly unjust (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [6]; Vuni v R [2006] NSWCCA 171 at [33]).
The case pressed in relation to this ground was that the reason for the departure from the applicable standard non-parole period applying to the s 35(4) offence, was Mr Simpson's mental health; that a three month variation to the ratio was an inadequate amelioration in circumstances where he had no history of violence; that there was no submission that Mr Simpson could establish on the balance of probabilities that his mental health was causative of his offending, but that it was uncontroversial that he had a complicated history of drug use, coincident with symptoms of early schizophrenia. This satisfied Conlon DCJ that drug use was capable of mitigating his moral culpability for his offending.
In the result, it was submitted that a non-parole period of 50% of an otherwise appropriate head sentence would have properly accommodated Mr Simpson's debilitating mental health.
These submissions cannot be accepted. They do not properly encapsulate the conclusion which his Honour reached, either as to Mr Simpson's drug use, or the impact of his mental health, which I have already discussed. Nor do they accord with the instinctive synthesis which his Honour was required to undertake in this sentencing exercise, as discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37] - [39].
As his Honour was obliged to do, he took account of all of the relevant factors, balancing the many different and conflicting factors revealed by the evidence, as well as those arising from applicable sentencing principles and the sentencing legislation, in order to arrive at a single result, just in all of the circumstances. His Honour also explained, as he was obliged to do, the approach he had taken to discretionary matters.
The sentence imposed upon Mr Simpson for his serious offending, involving as it did two unprovoked attacks on Mr Judd, wounding him twice with a knife, the second time after he tried to flee and was pursued by Mr Simpson in a car, was the result of that process. That, undoubtedly, required consideration to be given to specific deterrence and protection of the community, as I have explained. The result, a sentence totalling only 4 years imprisonment with a non-parole period of 2 years and 9 months, has not been shown to be unreasonable or plainly unjust.
Mr Simpson's mental illness was properly taken into account, with the result not only that the two sentences imposed upon him were made wholly concurrent, but he received the benefit of the departure from the usual statutory ratio. However, had his mental illness not also been taken into account as a relevant mitigating matter, a much heavier overall sentence would had to have been imposed on Mr Simpson.
It follows that while leave to appeal on this ground must also be granted, the appeal must be dismissed.

Order

For all of these reasons the order I would make is that leave to appeal be granted, but the appeal be dismissed.

Amendments 15 April 2015 - typographical error in [29] 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: 15 April 2015

Crimes (Administration of Sentences) Regulation 2008(NSW)

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