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District Court 28 October 2024

R v Simpson

[2024] NSWDC 619

Assault & violenceTraffic & driving

Citation: R v Simpson [2024] NSWDC 619
Court: District Court of New South Wales
Date: 28 October 2024
Judge: Haesler SC DCJ

Background

The offender, a man born in 1999, faced sentence on six offences arising from events on 5 September 2023 in the Illawarra region of New South Wales. He had grown up exposed to domestic violence, drug use, and crime, with parents who had each spent time in custody. His schooling was severely disrupted and he was frequently homeless. He had never obtained a driver's licence.

On the afternoon in question, police observed the offender near a stolen Nissan utility with replaced numberplates in Bulli. Rather than cooperate, he entered the vehicle and drove away, triggering a lengthy police pursuit through suburban streets, cycle paths, pedestrian ways, and around a sports oval. The pursuit was terminated by police at various points due to the risk posed to the public. During the chase he exceeded speed limits, drove across double lines, mounted gutters, and at times drove towards oblivious pedestrians and cyclists.

The pursuit ended when the offender lost control and collided heavily with a police vehicle, rendering a police inspector unconscious and trapping him inside. The vehicle then continued for a further 40 metres on three wheels before striking a car stopped at traffic lights, which contained a mother and her two young children in child seats. The mother sustained neck and shoulder pain. The offender fled on foot but was arrested shortly afterwards and had remained in custody since.

  • How to weigh the objective seriousness of multiple serious driving and violence-related offences against significant subjective mitigating factors, including a deprived background, youth, and mental health issues
  • The appropriate application of the instinctive synthesis approach to sentencing across an aggregate sentence for multiple offences
  • Whether moral culpability is reduced by the offender's disadvantaged background, and how that interacts with the assessment of objective seriousness
  • The correct discount to apply for early guilty pleas entered in the Local Court
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • The role of general deterrence in sentencing for serious driving offences, particularly where the offender was already subject to an Intensive Corrections Order (ICO)

Decision

Haesler SC DCJ applied the instinctive synthesis approach to sentencing, drawing on Markarian v The Queen [2005] HCA 25. His Honour identified all relevant aggravating and mitigating factors, assessed their significance, and arrived at a single value judgment reflecting the totality of the offending and the offender's circumstances, without adopting a staged mathematical approach.

The offending was assessed as objectively serious. The police pursuit offence (s 51B(1) Crimes Act) was identified as the most serious of the day's events, notwithstanding that the use of an offensive weapon offence carried the highest maximum penalty of 12 years. The court considered the real and substantial danger posed to police officers, pedestrians, cyclists, horse riders, the mother and her children, and other road users throughout the extended chase.

On the subjective side, the court gave substantial weight to the offender's profound disadvantage, applying principles from Bugmy v The Queen [2013] HCA 37. His Honour acknowledged that the offender's childhood exposure to violence, neglect, and instability had materially affected his capacity for self-regulation and executive functioning. His youth and immaturity, drug dependence, mental health issues, and the impact of imprisonment on his children were also taken into account as mitigating factors. However, the court held that these factors did not override the need for deterrence and the protection of the community.

The offender received a 25% reduction across each indicated sentence to reflect the utilitarian value of his early guilty pleas, entered in the Local Court. The court found special circumstances existed, warranting a non-parole period proportionally longer than the standard ratio, to facilitate supervision on parole and engagement with rehabilitation programs. The aggregate sentence was 3 years and 9 months, commencing 5 March 2024, with a non-parole period of 2 years and 1 month.

Orders Made

  • Sequence 20 (Police pursuit, s 51B(1) Crimes Act): 2 years and 7 months imprisonment; 3-year driving disqualification
  • Sequence 22 (Drive stolen conveyance, s 154A(1)(b) Crimes Act): 9 months imprisonment
  • Sequence 25 (Use offensive weapon to prevent apprehension, s 33B(1)(a) Crimes Act): 1 year and 10 months imprisonment
  • Sequence 27 (Drive furiously and cause bodily harm, s 53 Crimes Act): 1 year and 1 month imprisonment; 2-year driving disqualification
  • Sequence 23 (Drive while disqualified, s 54(1A) Road Transport Act): 4 months imprisonment; 2-year driving disqualification
  • Aggregate sentence: 3 years and 9 months imprisonment, commencing 5 March 2024
  • Non-parole period: 2 years and 1 month, with eligibility for release on 4 April 2026; parole period of 1 year and 8 months expiring 4 December 2027
  • Sequence 21: Withdrawn and dismissed
  • Sequence 26 (Fail to stop and give particulars, s 287(1) Road Rules 2014): Conviction recorded; no further punishment pursuant to s 10A Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • The District Court confirmed that maximum penalties serve as important guides to the relative seriousness of offences, but do not function as mechanical starting points from which proportional deductions are made.
  • Profound childhood disadvantage, consistent with the principles in Bugmy v The Queen [2013] HCA 37, can reduce an offender's moral culpability, but the court here found this did not displace the need for a substantial custodial term given the gravity and duration of the offending.
  • Under the instinctive synthesis methodology affirmed in Markarian, a sentencing court must assess all relevant factors holistically rather than adopting a staged mathematical approach, and must avoid double-counting matters in aggravation or mitigation.
  • A 25% reduction for early guilty pleas entered in the Local Court was applied, with the court taking care during aggregation not to inadvertently erode that discount.
  • Special circumstances were found, resulting in a non-parole period lower than the standard ratio, to support a supervised and structured transition back into the community through an extended parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 51B(1), 53, 53A, 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Rules 2014 (NSW), s 287(1)
- Road Transport Act 2013 (NSW), s 54(1A)

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Clarke-Jeffries v R [2019] NSWCCA 56
- DS v R; DM v R [2022] NSWCCA 156
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Paterson v R [2021] NSWCCA 273
- R v MJ [2023] NSWCCA 306
- Tepania v R [2018] NSWCCA 247
- Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Yun v R [2017] NSWCCA 317