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District Court 15 December 2022

R v Simpson

[2022] NSWDC 638

Assault & violenceTheft & propertyPublic order & justice offences
APPEAL APPEAL AGAINST SENTENCE CRIME SENTENCE FOR DISTRICT COURT MATTERS ENDANGER SAFETY OF PERSON ON RAILWAY CAUSE OBSTRUCTION TO RAILWAY LOCOMOTIVE RECKLESSLY DAMAGE PROPERTY

Citation: R v Simpson [2022] NSWDC 638
Court: District Court of New South Wales
Date: 15 December 2022
Judge: Haesler SC DCJ

Background

The offender, a 47-year-old man with over 30 years of intermittent custody since the age of 13, was sentenced in the District Court for a series of offences arising from a single night of criminal activity in October 2021. Having been released on parole in September 2020, he had made some efforts toward stability but continued to drive unlicensed and resumed illicit drug use following a motorcycle injury.

In the early hours of 20 October 2021, the offender drove his partner's van to a go-kart track in southern Wollongong, cut through a boundary fence, and attempted to steal a go-kart. In doing so, he drove the van onto an active rail corridor, where the vehicle's axle became stuck straddling the tracks. Despite attempts by bystanders to free the van, it remained on the line. A northbound passenger train struck it at approximately 91 kilometres per hour, derailing the first two carriages.

The collision caused the train driver to suffer a spinal compression fracture, a collapsed lung, bruised ribs and extensive bruising. A passenger also suffered a spinal compression fracture. The train guard and another passenger sustained other injuries. Sydney Trains assessed the total cost of damage to track, infrastructure and rolling stock at approximately $7,905,500. Combined with damage to the van itself, total property damage exceeded $9,500,000.

  • What aggregate sentence was appropriate for the District Court offences, having regard to the extreme recklessness of the conduct, the catastrophic consequences, and the offender's significantly deprived background and history of institutionalisation?
  • How should the District Court sentence be accumulated on the existing Local Court sentence of three years (with an 18-month non-parole period) imposed on 14 November 2022?
  • What discount should apply to reflect the utilitarian value of the guilty pleas?
  • Whether the appeal against the Local Court sentence had merit, and whether unaccounted days in pre-sentence custody required correction.
  • How Form 1 matters (larceny of the go-kart, reckless damage to the van, and drug possession) should be treated in the sentencing exercise.

Decision

Haesler SC DCJ dismissed the appeal against the Local Court sentence on its merits. However, the judge identified that three days spent in custody on bail refused had not been accounted for in the Local Court sentence. Accordingly, the Local Court sentence was backdated to commence on 24 October 2021.

On the District Court matters, the judge accepted the guilty pleas warranted a 25% discount for utilitarian value. The judge gave significant weight to the offender's profoundly deprived background, childhood trauma (including repeated sexual abuse in institutional care), long history of institutionalisation, and the absence of any meaningful rehabilitative foundation. Consistent with the principles in Bugmy v The Queen, the judge acknowledged that the effects of such deprivation do not diminish over time and remain relevant to the weight given to general deterrence.

At the same time, the judge emphasised the extreme recklessness of the conduct and its catastrophic consequences. The offending caused serious physical injury to multiple people, resulted in property damage exceeding $9.5 million, and endangered the lives of the train driver, guard, and 10 passengers. The judge noted the punishment under s 212 of the Crimes Act 1900 (endangering safety of a person on a railway) is calibrated to the potential for harm, not only the actual harm caused.

The District Court sentence was ordered to commence one year into the Local Court sentence, representing partial accumulation. The judge observed that current custodial conditions, including extended lockdowns and overcrowding, meant the offender was serving his sentence harder than at any prior time, a factor noted as relevant to the overall assessment of the sentence's severity.

Orders Made

  • Appeal against Local Court sentence: Dismissed on the merits; sentence backdated to commence 24 October 2021 to account for three unaccounted days in custody.
  • Seq 4 (Drive whilst disqualified, 2nd or subsequent offence): 3 months imprisonment; 12-month licence disqualification.
  • Seq 11 (Convicted offender enter land with intent to commit indictable offence, plus Form 1): 2 years 3 months imprisonment.
  • Seq 5 (Endanger safety of person on railway): 2 years imprisonment.
  • Seq 6 (Cause obstruction to railway locomotive): 1 year imprisonment.
  • Seq 8 (Recklessly damage property, plus Form 1): 3 years imprisonment.
  • Aggregate District Court sentence: 4 years 6 months, commencing 24 October 2022 (one year into the Local Court sentence).
  • Non-parole period: 2 years 6 months, expiring 23 April 2025.
  • Parole period: 2 years from 24 April 2025; aggregate sentence expires 23 April 2027.
  • Psychological reports of Ms Duffy and Mr Bembrick ordered to accompany the warrant.

Key Takeaways

  • The District Court confirmed that the penalty for endangering safety of a person on a railway under s 212 of the Crimes Act 1900 responds to the potential for serious harm, not only the harm that actually eventuates, making the provision applicable even where the outcome, though grave, could have been far worse.
  • Where Form 1 matters are factually intertwined with the principal offence such that separate punishment would produce total concurrence, it may be appropriate to treat them as informing the seriousness of the head offence rather than imposing an independent sentencing uplift; the drug possession matter was taken into account solely to enable the offender to clear his record without a further Local Court appearance.
  • In applying Bugmy v The Queen, the court reaffirmed that the effects of severe childhood deprivation and institutionalisation remain relevant throughout an offender's sentencing history and do not lose their mitigating weight merely because the offender has appeared before courts many times before.
  • Partial accumulation of a District Court sentence on an existing Local Court sentence was considered appropriate here, reflecting the totality principle and the need to avoid a sentence that was crushing when viewed as a whole.
  • Procedural timing affected the offender's position: because the District Court hearing ran beyond the Local Court sentencing date, the offender lost the benefit of the cap that s 58 of the Crimes (Sentencing Procedure) Act 1999 would have placed on the Magistrate's sentencing discretion had both matters been dealt with on the same day.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 115, 117, 195(1)(a), 212, 213
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 42A, 58
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Jackson v R [2010] NSWCCA 162
- Jinnette v R [2012] NSWCCA 217
- Ladas v R [2022] NSWCCA 160
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Moodie v R [2020] NSWCCA 160