Citation: R v Simmons (No 8) [2015] NSWSC 627
Court: Supreme Court of New South Wales
Date: 21 May 2015
Judge(s): Hamill J
Background
The offender faced a two-count indictment: murder of the victim (Andrew Russell) and assault occasioning actual bodily harm of the same victim on 20-21 March 2009 at Kelso. He pleaded not guilty to murder and guilty to the assault charge. Following a judge-alone trial, Hamill J acquitted him of murder (see R v Simmons (No 7) [2015] NSWSC 574) and proceeded to sentence him on the assault count.
The assault arose from a domestic dispute at the victim's rented home, where the offender, his girlfriend, and their children were also living. After being called back to the premises by his girlfriend following an altercation between her and the victim, the offender repeatedly punched and then kicked the victim, who was on the ground. Police attended in the early hours and the victim was taken away by ambulance with significant facial injuries.
The victim, who suffered from severe liver disease and autoimmune hepatitis, sustained multiple bruises, soft tissue swelling around the face and eyes, tenderness to his spine, and trauma to his knee and elbow. He also suffered lasting emotional harm, and was too afraid to return to his own home after the assault.
Legal Issues
- What was the objective seriousness of the assault, taking into account aggravating and mitigating features?
- Whether the fact the offence occurred in the victim's home constituted a statutory aggravating feature under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- What weight, if any, should be given to the offender's plea of guilty, given the circumstances of the trial?
- Whether delay between offence and sentencing operated as a mitigating factor?
- What sentence was appropriate, having regard to the offender's criminal history and prospects of rehabilitation?
Decision
Hamill J assessed the objective criminality of the offence as high, characterising it as a serious example of assault occasioning actual bodily harm. The victim's vulnerability due to ill health was a significant aggravating feature, and the act of kicking him while on the ground was described as particularly cowardly. The court also took into account the fact that the victim was assaulted in his own home and had nowhere to escape, even though the Crown did not rely on s 21A(2)(eb) as a formal aggravating circumstance.
The only mitigating feature of any substance was that the offender had been called to the scene by his girlfriend and was motivated to protect her and the children. The court declined to treat this as provocation in the legal sense. No remorse was demonstrated, and the evidence from undercover police operations pointed in the opposite direction.
The offender's criminal record, both before and after the offence, was extensive and included prior violence, dishonesty, drug offences, and a willingness to engage in further criminal conduct. His prospects of rehabilitation were found to be poor, though the court noted that remaining drug-free might improve his prospects of living a useful life. Delay between offence and sentencing was not treated as mitigating, because the delay was substantially attributable to the murder investigation and the offender had committed further offences in the intervening period.
The court allowed a discount of approximately 10% for the guilty plea, reflecting its limited utilitarian value in circumstances where the assault evidence was always going to be led at the murder trial and where the plea was entered only at arraignment in the Supreme Court. A starting sentence of three years was adopted, reduced to two years and nine months after the plea discount, with a non-parole period of two years.
Orders Made
- Non-parole period of two years commencing 26 July 2013 and expiring 25 July 2015.
- Balance of term of nine months expiring 25 April 2016.
- Direction under s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the offender be released to parole at the expiration of the non-parole period.
- A finding of special circumstances under s 44 to allow slight rounding of the non-parole period.
Key Takeaways
- A guilty plea entered only at arraignment in the Supreme Court, where the relevant evidence was in any case to be led at a concurrent murder trial, attracted only a modest discount of approximately 10% for its limited utilitarian value.
- Under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), whether the "home" aggravating factor applies where offender and victim reside together remains unresolved at appellate level, with the Court of Criminal Appeal flagging in Melbon v R [2013] NSWCCA 2010 that the issue may require re-examination.
- A victim's vulnerability arising from serious illness constitutes a significant aggravating feature in the assessment of objective seriousness, particularly where the conduct (kicking a person on the ground) exploits that vulnerability.
- Delay between offence and sentencing does not automatically operate as a mitigating factor; where the delay is attributable to investigation of a more serious related charge and the offender's conduct during the intervening period is contrary to rehabilitation, no mitigation arises.
- Poor prospects of rehabilitation, as evidenced by continued offending and an absence of remorse, weigh against leniency even where the offender demonstrates some potential to reform if drug-free.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(3)(c), 44, 50
- Crimes Act 1900 (NSW), s 59 (maximum penalty: 5 years imprisonment)
Cases
- R v Simmons (No 7) [2015] NSWSC 574
- EK v R [2010] NSWCCA 199
- Melbon v R [2013] NSWCCA 2010
- Montero v R [2013] NSWCCA 214
- Oh v R [2010] NSWCCA 148