AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 25 June 2001

Regina v Simpson

[2001] NSWCCA 239

Assault & violence
CRIMINAL LAW PRACTICE AND PROCEDURE APPLICATION OF DE SIMONI PRINCIPLE

Citation: Regina v Simpson [2001] NSWCCA 239
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2001
Judges: Howie J; Barr J

Background

The applicant, a 49-year-old Aboriginal man with a lengthy criminal history linked to chronic alcohol and drug abuse, pleaded guilty in the District Court to three offences committed on 8 April 1999: break, enter and steal; entering a dwelling house with intent to steal; and assault with intent to avoid lawful apprehension. A fourth offence of stealing from a dwelling, committed on 13 April 1999 while he was on bail, was taken into account on a Form 1.

The applicant had enjoyed a period of approximately six years free from offending between 1992 and 1998, but reoffended following the breakdown of a long-term relationship. He had previously been given good behaviour bonds for offences committed in 1998, which the fresh offending breached. He had been diagnosed with schizophrenia and had a background consistent with being a member of the stolen generation.

At sentencing, Judge Nield imposed a head sentence of four years with a two-year non-parole period on the most serious count, plus concurrent fixed terms of two years on the remaining counts. The applicant, having been released to parole, challenged the total term of imprisonment as manifestly excessive and raised a further ground that the sentencing judge had breached the principle established in The Queen v De Simoni.

  • Whether the sentencing judge breached the De Simoni principle by treating an aggravating fact as relevant to sentence when that fact would have supported a more serious charge than the one to which the applicant pleaded guilty
  • Whether the prosecutor had a duty to bring the De Simoni issue to the sentencing judge's attention
  • Whether the sentence was manifestly excessive having regard to the applicant's Aboriginality and diagnosed mental illness
  • Whether sufficient weight was given to the applicant's guilty plea

Decision

The Court found that the sentencing judge had breached the De Simoni principle. The facts presented to the court alleged that the applicant had brandished a knife when threatening the pursuing son of the property owner. That conduct could have supported a charge under section 33B of the Crimes Act, which carries a higher maximum penalty than the section 58 offence to which the applicant pleaded guilty. Under the De Simoni principle, a sentencing court must not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence than the one actually charged.

The Court also found that the prosecutor had a duty to alert the sentencing judge to the De Simoni issue before it arose. The Crown had placed before the court factual material that was capable of raising the problem, and it was incumbent on the prosecutor to ensure the judge was not led into error. That duty was not discharged in this case.

On the question of Aboriginality and mental illness, Howie J found that the applicant's circumstances did not warrant significant leniency beyond what had already been recognised. The applicant had demonstrated he could live without drugs and crime for an extended period, and the mental illness, while relevant, did not substantially explain the offending. The observations in R v Fernando were noted as not being authority for treating Aboriginal offenders more leniently as a matter of course.

The applicant was entitled to a 25 per cent discount on sentence for his guilty plea. Taking all matters into account, including the De Simoni error and the need for a meaningful period of parole supervision, the Court reduced the head sentence from four years to three years, retaining the two-year non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentences imposed by the District Court quashed
  • On the first count (taking into account the Form 1 offence): three years imprisonment with a non-parole period of two years, commencing 13 April 1999
  • On the second and third counts: fixed terms of 18 months each, commencing 13 April 1999 and expiring 12 October 2000, concurrent with the first count sentence

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from using facts in aggravation that would have supported conviction for a more serious offence than the one to which the offender actually pleaded guilty or was found guilty.
  • A positive duty rests on the prosecutor to identify and raise any potential De Simoni issue before sentencing proceeds, particularly where the Crown itself has placed the problematic factual material before the court.
  • R v Fernando does not establish that Aboriginal offenders are entitled to more lenient sentences as a matter of course; the Court of Criminal Appeal confirmed that each case turns on its own circumstances, and Aboriginality is one factor among many.
  • A guilty plea warranted a 25 per cent sentencing discount in this case, reflecting both the utilitarian value of the plea and its other relevant consequences.
  • Where special circumstances are found (here, the applicant's psychiatric condition and need for supervision), a longer parole period may be appropriate, but this interacts with the total sentence in determining the non-parole component.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 58, 111(1), 112(1), 148
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- R v Adorjany [1999] NSWCCA 37
- R v Engert (1996) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- R v Pitt [2001] NSWCCA 156