Criminal Law (W.A.)—Robbery—Sentence—Actual violence used but not charged in indictment—Plea of guilty—Circumstances of aggravation—Relevance of actual violence—Criminal Code (W.A.), ss. 1 (1), 391, 393, 582.
Decisions
June 16. The following written judgments were delivered: - GIBBS C.J. This is an application for the grant of special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia allowing an appeal by the respondent, Luciano De Simoni, against the sentence imposed upon him on his conviction for robbery. (at p386)
2. The respondent pleaded guilty before a judge of the District Court of Western Australia to an indictment which alleged that on 25 May 1979 at Mundaring he "stole from one Florence Kathleen Scott with actual violence one hundred and eighty dollars ($180) in money the property of the said Florence Kathleen Scott". The indictment was in the form prescribed by the Criminal Practice Rules (W.A.) for use in stating the offence of robbery under s. 391 of the Criminal Code (W.A.). After judgment of conviction had been entered counsel for the Crown stated the material facts to the court. He stated that the victim of the robbery was a lady aged 78 and that at the time of the robbery the respondent struck her a heavy blow on the back of the head inflicting a wound to the scalp at the rear of the skull. The wound was about 10 centimetres in length and required eight stitches. Counsel for the respondent then addressed the Court, and did not dispute that the respondent had used personal violence or that he had wounded his victim by a blow to the head. The learned trial judge sentenced the respondent to imprisonment for a period of seven years and directed that he serve a minimum period of four years before becoming eligible for parole. In the course of the remarks which he made before imposing sentence the learned trial judge said: "You have been convicted on your own confession of the crime of robbery. The punishment provided in the Criminal Code for that crime is imprisonment with hard labour for fourteen years and the Code also provides that if the offender wounds any person he is liable to imprisonment with hard labour for life. The Crown has seen fit not to add the aggravating feature and of course you come before me on the basis that the maximum penalty which can be imposed is fourteen years. . . . In my view this is a shocking crime. You did subsequently show some compassion. You assisted her by washing her wound which subsequently required eight stitches and in fact my recollection is that you left some money for her but I feel this was more because of the realisation at that stage of what you had done - struck from…
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.
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Details
AGLC
R v De Simoni [1981] HCA 31
Case
[1981] HCA 31
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of R v De Simoni, which concerned the interpretation and application of section 475 of the Crimes Act 1900 (NSW). The appellant had been convicted of receiving stolen goods, and the central dispute revolved around the admissibility of evidence relating to other stolen property found in his possession.
The primary legal issue before the Court was whether evidence of other stolen property, not forming part of the specific charge, could be admitted to prove the appellant's knowledge that the goods he received were stolen. This involved a consideration of the principles governing the admission of evidence of similar facts or previous convictions, and the extent to which such evidence could be used to establish a particular mental element of a crime.
The Court, in a joint judgment, held that the evidence of other stolen property was admissible. Their Honours reasoned that while evidence of similar facts is generally inadmissible to prove the commission of the offence charged, it may be admitted if it has a relevant tendency to prove a fact in issue. In this instance, the possession of other stolen goods was relevant to establishing the appellant's guilty knowledge, a necessary element of the offence of receiving stolen property. The Court affirmed that the probative value of the evidence, in demonstrating the appellant's awareness that the goods were stolen, outweighed any potential prejudice.
The appeal was dismissed, with the High Court upholding the conviction.