Director of Public Prosecutions v Simmons
[2015] VCC 506
•27 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-01188
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY SIMMONS |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 April 2015 |
| DATE OF SENTENCE: | 27 April 2015 |
| CASE MAY BE CITED AS: | DPP v Simmons |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 506 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary (firearm) – common law assault – criminal damage – possess unregistered firearm
Legislation Cited: R v Verdins [2007] VSCA 102
Cases Cited:Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Firearms Act 1996 (Vic)
Sentence: Convicted and sentenced to a Community Corrections Order of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M. O'Brien | Robert Stary Lawyers |
HIS HONOUR:
1Mr Simmons; you can remain seated until I ask you to stand as I pronounce sentence, but at this stage it is necessary for me to go through the reasons that make up your sentence. Primarily so that you understand why you are being sentenced and how you are being sentenced, but also so that it is on the public record, and should there be any need for it to be considered in the future those matters are detailed.
2Troy Simmons pleaded guilty to five counts on Indictment D10827231. Mr Simmons is now aged 43; having been born on 31 May 1971. He is a person who is on a disability pension. He has been on bail for these offences for a period of over two years.
3In so far as the offences themselves, they occurred on 23 March 2013, and essentially came about from the association with his girlfriend, and in particular, the association with her brother. I will come to the full circumstances of these offences in due course.
4The first and most serious charge is an offence against s.77(1) of the Crimes Act 1958 (Vic), which is a charge of aggravated burglary, for which the maximum penalty prescribed by Parliament is one of 25 years. Such gives an indication of the seriousness with which Parliament views such crimes.
5The second charge is an offence pursuant to common law as one of assault, for which the maximum penalty prescribed is one of five years.
6The third and fourth charges to which Mr Simmons pleaded guilty to, were two charges of cause criminal damage; offences under s.197(1) of the Crimes Act, and the final charge is a matter under s.6A of the Firearms Act 1996 (Vic), for which the maximum penalty prescribed is one of two years gaol or 20 penalty units. Perhaps the description of this air rifle as a longarm is technically right, but I understand it was not a rifle in the true sense.
7
It is perhaps also important by way of the background circumstances that
Mr Newland himself went to the Magistrates' Court charged with assault of
Mr Simmons, I understand, and was fined $1800. In so far as the precise circumstances counsel, and in particular Ms O'Brien, agreed that Exhibit A, which was the prosecution opening prepared by the prosecutor, for which I thank her, was a true representation of the facts in the matter.
8As indicated, the complainant, Mr Newland, was living with his sister, Ms Bradley, in Langwarrin, and at that time Ms Bradley had been indeed dating Mr Simmons, as I earlier remarked, apparently for a period of some two months.
9The accused, Mr Simmons - or the prisoner - was living, at the time, at his mother's in Frankston. These circumstances involved a social function - I suppose is the best way to put it - in which the four persons went to the Daveys Road pub in Frankston. As a result of certain matters that went on there, an issue developed between Newland and Mr Simmons, as a result thereof outside the premises Newland punched Mr Simmons to the left side of his face area, near the ear, and the accused fell to the ground and he was then punched again. As I said, there was a video, which is the security video taken in regard to those matters, and I saw still photos thereof.
10The offending in so far as Mr Simmons is concerned starts thereafter. Unfortunately instead of allowing the police or the authorities to attend to this, Mr Simmons went off on a frolic of his own. He drove home, collected - as I say - the longarm, but in fact was an air rifle. He then subsequently arrived at the Langwarrin address.
11
Mr Simmons walked to the front door carrying the air rifle. He kicked the door three times, the door lock broke and the door opened. He entered the premises intending clearly to assault Newland. It may well have been that there is some issue as to what type of assault. He said in his statement he intended only to scare him by the use of the air rifle, however suffice to say,
Mr Simmons has, as I said, pleaded guilty to one count of aggravated burglary.
12Neither Newland nor his sister were home at that time, despite Mr Simmons looking for him. They subsequently arrived in a taxi, one would imagine from the hotel, or thereabouts. Mr Simmons ran out of the house towards Mr Newland, pointing the air rifle to him and making threats, and given the circumstances Mr Newland ran off into nearby park. The assault in so far as Mr Newland's concerned - making up Charge 2 - is made up of those facts.
13Not satisfied with that, the prisoner then walked up to Mr Newland's work truck, a truck described as a white Hino Dutro, and used the stock end of the air rifle to smash the windscreen and two side windows. That is the matter making up Charge 3; criminal damage.
14At this stage Ms Bradley had actually gone into the home and the front door lights were on. She was apparently in her bedroom. Again, the prisoner came up to the doorway and made comments to her. He then smashed the LCD television in the lounge room; those circumstances making up Charge 4.
15Charge 5, as I said, is made up from the circumstances detailed as to the air rifle.
16Mr Simmons was arrested shortly thereafter, taken to the Frankston Police for interview and was co-operative. He explained that the background to his own criminal frolic was the fact that Newland had punched him in the side of the head at Flanagan's. He said he felt pretty degraded and pretty angry - that is in Question 71 through to 77 - that he had been drinking, was pretty wasted and had some 14 beers.
17You probably could not get a better description of why he went on this escapade than from his own words. A person who is suffering depression, who was on treatment, who then goes and drinks to that extent is asking for trouble, and as a result is here today.
18In so far as Ms O'Brien's plea was concerned, she helpfully gave the Court her submissions, which the Court was able to read. They have been tendered and make up Exhibit 1. Ms O'Brien gave me a fairly extensive background in so far as Mr Simmons' life was concerned, the difficulties that he has faced, the fact that he continues to have, as demonstrated here, a very supportive family. She described to me his work record, which has been particularly good until his recent issues, and it seems that his recent issues and difficulties may well be traced back to the problems post his marriage to Jasmine in 2005 and her very untimely death.
19Subsequent to that time he has had difficulty as to employment, despite the assistance from his brother. Those matters are detailed in the references set out in Exhibit 4. He continued on in forms of employment until 2011, when he went through this particular panic attack, apparently, and has not worked since, and as I said, is now on a disability pension. He continues to live at his mother's house. His girlfriend, who is also supportive of him and is in Court, lives two streets away.
20Clearly, it seems to me, given his background, the most important thing in his life is getting back to work. Being able, subject to his own mental condition, to feel worthwhile again, and getting back those skills. That might be easy for me to say, but clearly when one stands apart from these matters the prisoner needs assistance in that regard, and indeed, has been seeking assistance in that regard.
21Essentially circumstances were put to me by Ms O'Brien, not in any way as an excuse, but as an explanation. As I said, there is no excuse. If you are hit in the manner that you were there is only one way, you do not go and take your revenge. Our system of law is based on people using the law, not taking the law into their own hands. However, the matters stressed by Ms O'Brien were the co-operation of Mr Simmons with the police and the condition in which he found himself.
22Obviously those matters come into play in so far as looking at an actual sentence, however in my view, as I explained to Ms O'Brien, a person who abuses alcohol in the circumstances where he is already suffering depression cannot then come up on a Verdins[1] type principle and ask for reduced culpability. I do not see any basis in this case for that. However, Ms O'Brien stressed the early plea as a demonstration of your co-operation and your remorse, and I accept that, Mr Simmons.
[1]R v Verdins [2007] VSCA 102.
23What is important, of course, is you are now 43. You have some priors but they are very limited and aged, but more importantly, they do not, in any way, evoke a person who has lived a violent life. That is a very important point.
24This Court has always taken the view that a person is entitled to an opportunity. You are 43, have had no priors for violence, despite the seriousness of these matters it does give you a right to seek an alternative penalty to what would otherwise be appropriate, given the seriousness of these crimes.
25As I stress, aggravated burglary has been prescribed by Parliament to have a maximum penalty of 25 years, which is indicative of the view Parliament have for persons who smash into homes, with the intent that you had, like this. It should not be misunderstood by you that had you not lived the life you had prior to this date, the consequences you would have been suffering are much different. Do you understand that?
26OFFENDER: Yes, sir.
27HIS HONOUR: I accept, given the background, that I am dealing with a person who has lived an otherwise blame free life, and a person who has good prospects of rehabilitation, and that was a very strong proposition put by Ms O'Brien, and I do also thank the prosecutor for her submissions.
28I find the proposition put by Ms O'Brien that a Community Corrections Order would be appropriate. Despite the seriousness of Charge 3, the learned prosecutor, professionally, it seemed to me, accepted that that was within the range of penalties in this matter. Given those circumstances I indicated to Ms O'Brien I was prepared to arrange for an interview from the Corrections department, as required under the Sentencing Act 1991 (Vic).
29Exhibit B has been tendered today. Mr Simmons has indicated by his signature of that that he understands and consents a Community Corrections Order. There has been various recommendations made. I am, in all the circumstances, satisfied that that is an appropriate penalty in this case.
30Before I finally pronounce, Ms O'Brien, I should indicate to you that I intend to make it for four years. I intend to impose an intensive correction period of two years, under which I would contemplate that the 400 hours of community service would be performed, but also, to mark the seriousness of the first charge I also intend to impose on your client a fine in the sum of $2000 - or as close there is as we can get these days by multiplying the rate that was appropriate, being $140.80, by 15, and I think that comes to something around $2000, or close. Perhaps you should formally check with your client that he is happy in the circumstances to enter into the Community Corrections Order given those circumstances? I will also impose all of the conditions that have been recommended in the report.
31MS O'BRIEN: Your Honour, just to clarify, the 400 hours was over a period of two years, is that correct?
32HIS HONOUR: Yes. I mean, I'm happy if it's altered, but it seems to me that's the intensive condition.
33
MS O'BRIEN: I would've thought it's achievable, I'll just check with
Mr Simmons.
34HIS HONOUR: Yes.
35MS O'BRIEN: Yes, thank you, Your Honour. Mr Simmons understands the order that Your Honour's intending to impose, and certainly he stands by his willingness as indicated in his consent given last Friday.
36HIS HONOUR: Thank you, Ms O'Brien. Yes, Mr Simmons, if you would stand please?
37In so far as each of these five charges in the Indictment you will be convicted of each matter.
38In so far as Charge 1 is concerned you will be fined the sum of $2000, or thereabouts, being 15 penalty units which were appropriate at the time; being $140.80. In so far as that I will give you a stay of six months, given your current position. Should you seek to extend that I would expect that a considerable amount of that has been paid in the next six months.
39In so far as all of the charges, I intend to impose a Community Corrections Order upon you pursuant to the provisions of s.41 of the Sentencing Act. That Community Corrections Order will be for a period of four years. Most importantly of that provision, and the conditions relevant to it, is that you do not commit any offences during that time.
40The conditions of that Community Corrections Order will be that you perform the service of 400 hours community service, and I would impose in regard to that condition, pursuant to s.39, an intensive correction period of two years.
41In so far as the other conditions it will be treatment and rehabilitation, as directed under s.48D, supervision under s.48E, and mental health assessment and treatment as directed under s.48D. Clearly, you would be assisted by such treatment in so far as drug, alcohol, and making sure that future offending behaviour is overcome.
42I will also sign, and have signed, the forfeiture order and disposal orders, and I have also signed the requested forensic sample order under s.464ZF of the Crimes Act.
43As I have said, Mr Simmons, I do not expect to see you again, given your background, but when you are facing charges of this seriousness you only get one chance. Do you understand?
44OFFENDER: Yes I do, Your Honour.
45HIS HONOUR: And the conditions now with these Community Correction Orders are such that if you come back having seriously breached, and in particular, committed another offence, the likelihood is you would then get a gaol sentence in regard to this matter. All right?
46OFFENDER: Yes, Your Honour.
47HIS HONOUR: So I do not think it is a great expectation, the Court and the community simply expect, given this aberration in your life, that you get back to living a normal law-abiding life, all right?
48OFFENDER: Yes.
49HIS HONOUR: Thank you again for the professional manner in which the prosecution went about this case. Thank you, Ms O'Brien.
50MS O'BRIEN: Thank you, Your Honour.
51HIS HONOUR: Yes. Good luck, Mr Simmons.
52OFFENDER: Thank you, Your Honour.
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