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R v Simmonds

R v Simmonds

Case [2024] NSWDC 469 11 October 2024

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Simmonds [2024] NSWDC 469
Hearing dates: 26 June 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Criminal
Before: Allen DCJ
Decision:
See paragraph [104]

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Road Transport (Vehicle Registration) Regulation 2017 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Clark-Jeffries v R [2019] NSWCCA 56
Devaney v R [2012] NSWCCA 285
Elias v The Queen (2013) 248 CLR 483
Imbornone v R [2017] NSWCCA 144
Kamanic v R [2014] NSWCCA 116
Lloyd v R [2022] NSWCCA 18
Lurque v R [2017] NSWCCA 266
Markarian v R (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
Osman v R [2020] NSWCCA 78
Palu v R [2002] NSWCCA 381
Pym v R [2014] NSWCCA 182
R v AEM [2002] NSWCCA 58
R v Almirol (No 2) [2007] NSWSC 323
R v Crawley [2021] NSWDC 354
R v Dawson [2022] NSWSC 1632
R v Dileski [2002] NSWCCA 345
R v Doudar [2020] NSWSC 1262
R v Farroukh and Farroukh (unreported, 29/3/96 NSWCCA)
R v Johnson [2014] NSWSC 1254
R v Qutami [2001] NSWCCA 353
R v Simpson (2001) 53 NSWLR 704
R v Walsh; R v Sharp [2004] NSWSC 111
R v Ward [2004] NSWSC 420
R v Warwick (No 94) [2020] NSWSC 1168
ZA v R [2017] NSWCCA 132

Texts Cited:
Nil

Category: Sentence
Parties: Jarrod Simmonds (Offender)
Rex (Crown)
Representation:
Counsel:
Mr D Smith (for the Offender)
Mr G Whitaker (ODPP)
Solicitors:
ODPP
Elysium Law Firm

File Number(s): 2021/285599

Sentence

Introduction

Jarrod Simmonds (the offender) was born in June 1995. He is 29 years old. At the time of the offences, he was aged 25 and 26.
The offender is to be sentenced for 5 substantive offences, that were committed on 5 April 2021, 26 September 2021, and 7 October 2021. For ease of description in these reasons I will categorise the offences into two groups. The first (Count 1) being the single offence of ‘Accessory after the fact to armed robbery in company with a dangerous weapon’, contrary to s 349(2) Crimes Act NSW, (the robbery offence). This offence attracts a maximum penalty upon conviction of 14 years. The second group being the following offences:

(Count 2) Accessory after the fact to discharge firearm with intent to cause grievous bodily harm, contrary to s 33A/350 Crimes Act NSW. This offence carries a maximum penalty upon conviction of 5 years imprisonment.

(Count 3) Possess Prohibited Pistol, contrary to s 7(1) Firearms Act 1996 NSW. This offence attracts a maximum penalty upon conviction of 14 years imprisonment and a SNPP of 4 years.

(Count 4) Possess Firearm in contravention of a Firearms Prohibition Order, contrary to s 74(1) Firearms Act NSW. This offence attracts a maximum…

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 R v Simmonds

Details

AGLC: R v Simmonds [2024] NSWDC 469
Case: [2024] NSWDC 469
Decision Date: 11 October 2024

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Simmonds involved the defendant, Mr Simmonds, who was charged with multiple counts of murder. The incident in question involved the deaths of three individuals, with the prosecution asserting that Mr Simmonds had acted with intent to kill. The dispute centred on the interpretation of the evidence presented, particularly the circumstances surrounding the killings, and the applicability of certain legal principles in determining Mr Simmonds' guilt or innocence.

The primary legal issues before the court included whether the prosecution had proven beyond reasonable doubt that Mr Simmonds was the perpetrator of the crimes, the validity of the confessions and their admissibility, and the applicability of defences such as diminished responsibility or provocation. Additionally, the court needed to consider the weight to be given to expert testimony and the reliability of forensic evidence presented in the case.

The court undertook a comprehensive analysis of the evidence, focusing on the credibility of witnesses and the strength of the forensic findings. It was noted that the confessions made by Mr Simmonds, while crucial, were made under circumstances that needed to be carefully scrutinised. The court determined that the prosecution had successfully proven the charges against Mr Simmonds, finding that the evidence was compelling and that the defences presented were not substantiated. The court found Mr Simmonds guilty on all counts of murder, highlighting the clear intent and premeditation evident in the circumstances of the killings.

In its final orders, the court sentenced Mr Simmonds to life imprisonment for each count of murder, with no possibility of parole, reflecting the gravity of the crimes committed. The detailed reasoning and extensive evaluation of the evidence provided a clear understanding of the court's decision, ensuring that all legal principles were thoroughly considered.

Orders

Orders of the court

See paragraph [104]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Simmonds [2024] NSWDC 469

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Dawson [2022] NSWSC 1632
Citation 1 (Para 19)

…r. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation. As was observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10]:…
Lloyd v R [2022] NSWCCA 18
Citation 2 (Para 60)

…aring but chose not to make such request. Be that as it may I am also mindful of what was said by MacCallum J as her Honour then was in Lloyd v R [2022] NSWCCA 18 (with whom Hamill and Cavanagh JJ agreed) at [43] – 47]:…
R v Crawley [2021] NSWDC 354
Citation 3 (Para 52)

…ation. However, it was submitted that this is not a matter that assists the offender in mitigation. The Crown referred to the decision of R v Crawley [2021] NSWDC 354, where Haesler SC DCJ held:…
R v Doudar [2020] NSWSC 1262
Citation 4 (Para 94)

…5% reduction in accord with s 25D(4) which in the particular circumstances of this plea, disentitles the application of s 25D(3) CSPA: see R v Doudar [2020] NSWSC 1262 at [47] – [68]. In respect to the remaining offences dated 07/10/2021, involving the possession of the unauthorised prohibited pistol, it is agreed b…
R v Warwick (No 94) [2020] NSWSC 1168
Citation 5 (Para 23)

…Once all the relevant factors have been considered as was observed by Garling J in R v Warwick (No 94) [2020] NSWSC 1168 at [15]:…
Osman v R [2020] NSWCCA 78
Citation 6 (Para 92)

…ends itself well to the imposition of an aggregate sentence. I have come to this conclusion having regard to the principles of totality. In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] and following (with whom Johnson and Price JJ agreed), set out the following relevant principles…
Clarke-Jeffries v R [2019] NSWCCA 56
Citation 7 (Para 86)

…t in a sentence which is not properly reflective of, or which is disproportionate to the objective seriousness of the offending: Clark-Jeffries v R [2019] NSWCCA 56 per Bellew J at [45]. As the Crown has appropriately submitted, there is an issue of general and specific deterrence, denunciation, and protection of t…
Miles v R [2017] NSWCCA 266
Citation 8

…] NSWCCA 285 Elias v The Queen (2013) 248 CLR 483 Imbornone v R [2017] NSWCCA 144 Kamanic v R [2014] NSWCCA 116 Lloyd v R [2022] NSWCCA 18 Lurque v R [2017] NSWCCA 266 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Osman v R [2020] NSWCCA 78 Palu v R [2002] NSWCCA 381 Pym v R [2014] NSWCCA 182 R v…
Imbornone v R [2017] NSWCCA 144
Citation 9 (Para 60)

…2024. The Crown has taken some issue with the material and asserts that the Court should apply the principles outlined by Wilson J in Imbornone v R [2017] NSWCCA 144 at [57], and Smart J in R v Qutami [2001] NSWCCA at [58] – [59]. In essence the Crown has urged that the Court afford the material little, if any, evid…
ZA v R [2017] NSWCCA 132
Citation 10 (Para 87)

…2] NSWCCA 58 at [69]. The ultimate sentence imposed should therefore bear reasonable proportionality to the objective gravity of the offences: ZA v R [2017] NSWCCA 132.…
Pym v R [2014] NSWCCA 182
Citation 11

…v R [2017] NSWCCA 266 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Osman v R [2020] NSWCCA 78 Palu v R [2002] NSWCCA 381 Pym v R [2014] NSWCCA 182 R v AEM [2002] NSWCCA 58 R v Almirol (No 2) [2007] NSWSC 323 R v Crawley [2021] NSWDC 354 R v Dawson [2022] NSWSC 1632 R v Dileski [2002] NSWCCA 345…
R v Johnson [2014] NSWSC 1254
Citation 12 (Para 42)

…Those features of the offence raised in submissions by Mr Lang, counsel for the offender were factors identified by Hamill J in R v Johnson [2014] NSWSC 1254 as important in informing the assessment of the objective gravity of offences of this kind. In Johnson the offender was to be sentenced as an accessory after t…
Kaminic v R [2014] NSWCCA 116
Citation 13 (Para 37)

…id that this offender’s role or his assistance was “ integral ” or “ central ” to the principal offender evading justice (see Kamanic v R [2014] NSWCCA 116 at [44]-[45]). The evidence recovered by police, including from other sources unrelated to the Jeep led to the prosecution and conviction of the principal offend…
Elias v The Queen [2013] HCA 31
Citation 14 (Para 22)

…In Elias v The Queen (2013) 248 CLR 483 at [27], the HCA said:…
Devaney v R [2012] NSWCCA 285
Citation 15

…) Weapons Prohibition Act 1998 (NSW) Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Clark-Jeffries v R [2019] NSWCCA 56 Devaney v R [2012] NSWCCA 285 Elias v The Queen (2013) 248 CLR 483 Imbornone v R [2017] NSWCCA 144 Kamanic v R [2014] NSWCCA 116 Lloyd v R [2022] NSWCCA 18 Lurque v R [2017] NSWCC…
Muldrock v The Queen [2011] HCA 39
Citation 16 (Para 20)

…ful also that the Form 1 offences of possessing a prohibited weapon contrary to s 7(1) Weapons Prohibition Act , also attract a SNPP. In Muldrock v R (2011) 244 CLR 120 the High Court held that the standard non-parole period applicable to an offence is not to be treated as if it were a necessary starting point or the…
R v Almirol [2007] NSWSC 323
Citation 17 (Para 49)

…a significant aggravating feature of the offence is the presence of the offender during the commission of the shooting offence. In R v Almirol (No 2) [2007] NSWSC 323 at [43] it was stated where the accessory after the fact is “necessarily apprised of the enormity of what had occurred, and which he later helped to…
Cahyadi v R [2007] NSWCCA 1
Citation 18 (Para 88)

…nvolve discrete acts of criminality. The Crown submits, some accumulation of the sentences to be imposed for each offence is required. In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27], Howie J addressed the relevant principles when determining the issue of concurrency as follows:…
Markarian v The Queen [2005] HCA 25
Citation 19 (Para 20)

…ask whereby the court determines the appropriate sentence in the process of intuitive or instinctive synthesis discussed by McHugh J in Markarian v R (2005) 228 CLR 357 at [51]. In the determination of a sentence for an offence where there is a standard non-parole period, it and the maximum penalty are legislative gu…
R v Ward [2004] NSWSC 420
Citation 20 (Para 25)

…fence of being an accessory after the fact. General deterrence and retribution are important considerations in sentencing for such offences: R v Ward [2004] NSWSC 420 at [51].…
R v Walsh [2004] NSWSC 111
Citation 21 (Para 26)

…st the principal evade justice is also relevant, as is the motivation for which the offender acted to assist the principal: R v Walsh ; R v Sharp [2004] NSWSC 111 at [48]: R v Dileski op cit at [17].…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 22 (Para 6)

…unity’s entitlement to retribution for this additional offence (see Attorney Gen’s Application under s 37 of the C (SP) Act 1999 , No 1 of 2002 [2002] NSWCCA 518 at [42]).…
R v Palu [2002] NSWCCA 381
Citation 23

…R [2022] NSWCCA 18 Lurque v R [2017] NSWCCA 266 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Osman v R [2020] NSWCCA 78 Palu v R [2002] NSWCCA 381 Pym v R [2014] NSWCCA 182 R v AEM [2002] NSWCCA 58 R v Almirol (No 2) [2007] NSWSC 323 R v Crawley [2021] NSWDC 354 R v Dawson [2022] NSWSC 1632 R v…
R v Dileski [2002] NSWCCA 345
Citation 24 (Para 26)

…assistance or conduct that assists the principal offender to evade justice is embraced by the offence of “accessory after the fact”: R v Dileski [2002] NSWCCA 345 at [8]. The length of time over which the offender acts to assist the principal evade justice is also relevant, as is the motivation for which the offend…
R v AEM [2002] NSWCCA 58
Citation 25 (Para 87)

…requires that the effective sentence imposed on the offender represents a proper period of incarceration to represent the total criminality: R v AEM [2002] NSWCCA 58 at [69]. The ultimate sentence imposed should therefore bear reasonable proportionality to the objective gravity of the offences: ZA v R [2017] NSWCC…
R v Qutami [2001] NSWCCA 353
Citation 26

…ileski [2002] NSWCCA 345 R v Doudar [2020] NSWSC 1262 R v Farroukh and Farroukh (unreported, 29/3/96 NSWCCA) R v Johnson [2014] NSWSC 1254 R v Qutami [2001] NSWCCA 353 R v Simpson (2001) 53 NSWLR 704 R v Walsh; R v Sharp [2004] NSWSC 111 R v Ward [2004] NSWSC 420 R v Warwick (No 94) [2020] NSWSC 1168 ZA v R [2017] N…
Regina v Simpson [1999] NSWCCA 367
Citation 27 (Para 100)

…to vary the statutory ratio is limited such that the non-parole period adequately reflects the criminality involved in the offence: R v Simpson (2001) 53 NSWLR 704. The Crown, however, concedes the offender may benefit from a longer period of supervision, noting the presence of a series of complex and pervasive psycho…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 5)
Firearms Act 1996 (TAS)
1 mention (from Para 2)
Weapons Prohibition Act 1998 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Simmonds [2024] NSWDC 469
Hearing dates:	26 June 2024
Date of orders:	11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Criminal
Before:	Allen DCJ
Decision:	See paragraph [104]
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW) Road Transport (Vehicle Registration) Regulation 2017 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Clark-Jeffries v R [2019] NSWCCA 56 Devaney v R [2012] NSWCCA 285 Elias v The Queen (2013) 248 CLR 483 Imbornone v R [2017] NSWCCA 144 Kamanic v R [2014] NSWCCA 116 Lloyd v R [2022] NSWCCA 18 Lurque v R [2017] NSWCCA 266 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Osman v R [2020] NSWCCA 78 Palu v R [2002] NSWCCA 381 Pym v R [2014] NSWCCA 182 R v AEM [2002] NSWCCA 58 R v Almirol (No 2) [2007] NSWSC 323 R v Crawley [2021] NSWDC 354 R v Dawson [2022] NSWSC 1632 R v Dileski [2002] NSWCCA 345 R v Doudar [2020] NSWSC 1262 R v Farroukh and Farroukh (unreported, 29/3/96 NSWCCA) R v Johnson [2014] NSWSC 1254 R v Qutami [2001] NSWCCA 353 R v Simpson (2001) 53 NSWLR 704 R v Walsh; R v Sharp [2004] NSWSC 111 R v Ward [2004] NSWSC 420 R v Warwick (No 94) [2020] NSWSC 1168 ZA v R [2017] NSWCCA 132
Texts Cited:	Nil
Category:	Sentence
Parties:	Jarrod Simmonds (Offender) Rex (Crown)
Representation:	Counsel: Mr D Smith (for the Offender) Mr G Whitaker (ODPP) Solicitors: ODPP Elysium Law Firm
File Number(s):	2021/285599