Jarred Lee Simpson v The Queen - [2019] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0222

JARRED LEE SIMPSON	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2019
DATE OF JUDGMENT:	10 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 82
JUDGMENT APPEALED FROM:	DPP v Simpson (Unreported, County Court of Victoria, Judge Saccardo, 7 September 2018)

---

CRIMINAL LAW – Appeal – Sentence – Burglary – Attempted theft of firearm – Parity – Whether reasonably open to differentiate between co-offenders – Whether disparity gave rise to justifiable sense of grievance – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Kantor	Kerry R Clancy Solicitors
For the Respondent	Mr J McWilliams	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
T FORREST JA:

Introduction

As part of a drunken escapade in the company of Justin Austin (‘Austin’) during the early hours of 30 November 2017, the applicant committed a burglary on a hardware store and attempted to steal firearms. Whilst attempting to remove a gun safe from the premises, the two were confronted by police. They fled. Shortly afterward, the applicant was found hiding in a yard and was arrested. Austin handed himself in to police at about noon that same day.

On 31 August 2018, the applicant pleaded guilty in the County Court to burglary[1] and attempted theft of a firearm.[2]
[1]Crimes Act 1958, ss 76(1)(a). The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, ss 74AA(1) and 321M. By virtue of 321P(1)(b), the maximum penalty for attempted theft of a firearm is 1080 penalty units or nine years’ imprisonment (i.e. ‘60% of the maximum penalty fixed or prescribed by law for the relevant offence’ — 1800 penalty units or 15 years’ imprisonment).

Following a plea conducted on 31 August 2018, the judge sentenced the applicant on 7 September 2018 to an aggregate sentence of 14 months’ imprisonment, to be followed by a community correction order (‘CCO’) of 30 months’ duration. The CCO had treatment and rehabilitation conditions with respect to drugs, alcohol and to reduce re-offending, and a condition that the applicant undertake 200 hours’ community work (time spent undertaking programs counting towards that work). Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to 20 months’ imprisonment, with a non-parole period of 14 months.

Austin had earlier pleaded guilty to burglary and attempted theft of a firearm before another judge of the County Court, and on 14 May 2018 had been sentenced to an aggregate 10 months’ imprisonment, to be followed by a conditioned CCO of 36 months’ duration. That judge declared that, but for Austin’s plea of guilty, he would also have sentenced Austin to be imprisoned for 20 months, with a non-parole period of 14 months.

The applicant seeks leave to appeal against his sentence on two grounds…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jarred Lee Simpson v The Queen

Details

AGLC: Jarred Lee Simpson v The Queen [2019] VSCA 82
Case: [2019] VSCA 82
Decision Date: 10 April 2019

CaseChat Overview and Summary

Jarred Lee Simpson was found guilty of a burglary and an attempted theft of a firearm, and he now appeals against the sentence imposed by the lower court. The appeal focuses on the disparity between the sentence he received and the sentence of his co-offenders, arguing that the differences in sentencing were unjust and failed to achieve parity between the sentences of all involved in the crime. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether it was reasonably open for the sentencing judge to differentiate between the sentences of the co-offenders in this case. Simpson's argument hinged on the principle that sentences for co-offenders should be proportionate and similar to avoid creating a justifiable sense of grievance among those involved in the crime. The court had to determine whether the disparity in sentences was justifiable based on the circumstances of the case, and whether this disparity gave rise to a sense of grievance that would warrant a different outcome.

The court held that it was reasonably open for the sentencing judge to differentiate between the sentences of the co-offenders. The sentencing judge had taken into account the various factors relevant to each individual's culpability and the circumstances of their involvement in the crime. The court found that the disparity in sentences did not give rise to a justifiable sense of grievance, as the judge had appropriately considered the different roles and contributions of each offender. Therefore, the court dismissed the appeal and refused leave to appeal.

Orders