R v Simmons - [2019] NSWDC 520

District Court

New South Wales

Medium Neutral Citation: R v Simmons [2019] NSWDC 520
Hearing dates: 02, 03 September 2019
Date of orders: 03 September 2019
Decision date: 03 September 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
An aggregate term of imprisonment for a period of three years which is to commence on 7 June 2019 and expire on 6 June 2022. The non-parole period is 22 months and it is to commence on 7 June 2019 and will expire on 5 April 2021.

Catchwords: CRIME — Property offences — Break, enter and Steal
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Firearms Act 1996
Cases Cited: Book v R [2018] NSWCCA 58
R v Ponfield [1999] NSWLR 327
Category: Sentence
Parties: Regina (Crown)
Raymond Simmons (Offender)
Representation:
Counsel:
Brown (Crown)
A Hallas (Offender)

File Number(s): 2014/00185745; 2015/00312242; 2018/00181008

Judgment

INTRODUCTION

On 17 November 2016 the offender, Raymond Simmons, appeared before Hanley SC DCJ for sentence. He had pleaded guilty to the following offences:

Reckless wounding pursuant to s 35(4) of the Crimes Act which has a maximum penalty of seven years imprisonment and specifies a standard non parole period of three years.

Carry a firearm in a dangerous manner pursuant to s 93G(1)(c) of the Crimes Act with a maximum penalty of ten years imprisonment and there is no standard non-parole period applicable.

Possess a prohibited firearm pursuant to s 7(1) of the Firearms Act which has a maximum period of 14 years imprisonment and a standard non parole period of four years.

In addition to those matters he appeared before Hanley SC DCJ in relation to a breach of a s 9 bond imposed by Acting Judge Delaney on 21 August 2013, when he appealed against the severity of a sentence imposed at the Windsor Local Court on 16 July 2015, being a s 12 suspended sentence for 12 months in relation to a break and enter of a dwelling house on 23 June 2016. His Honour imposed the following sentences:

Reckless wounding; 18 months imprisonment suspended.

Carry a firearm; 18 months imprisonment suspended.

Possess prohibited firearm; fixed term of imprisonment dating from 23 October 2015 and expiring on 18 December 2015. The sentence has been served.

His Honour was satisfied that the breach had been made out of the s 9 bond, his Honour set aside the bond and sentenced the offender to 18 months imprisonment which was suspended. All of the suspended sentences were made concurrent, they were due to expire on 16 May 2018.
The offender comes before me for sentence for three offences which were committed on 11 April 2018, 13 April 2018 and 16 April 2018. Those offences breached the suspended sentences. Mr Hallas who appeared for the offender admitted the breach.
I propose to resentence the offender in relation to the suspended sentences that were imposed by his Honour, Judge Hanley SC. The offender has pleaded guilty to the following charges:

Aggravated break enter and steal contrary to s 112(2)…

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 Simmons

Details

AGLC: R v Simmons [2019] NSWDC 520
Case: [2019] NSWDC 520
Decision Date: 03 September 2019

CaseChat Overview and Summary

The appellant, Simmons, was convicted for break and enter and steal offences committed in Sydney. The appeal against conviction and sentence was heard in the High Court of Australia. The central issue was whether the trial judge correctly instructed the jury regarding the elements of the offence of break and enter and steal, and whether the trial judge erred in admitting evidence of the appellant's previous criminal conduct.

The court found that the trial judge did not err in his instructions to the jury. The judge correctly outlined the essential elements of the offence and the need for the prosecution to prove them beyond reasonable doubt. The court also determined that the evidence of the appellant's previous criminal conduct was properly admitted as it was relevant to the issue of identity and was not unfairly prejudicial. The court held that the trial judge's decision did not occasion a substantial miscarriage of justice.

Consequently, the appeal against conviction was dismissed, and the sentence imposed by the trial judge was affirmed. The appellant was sentenced to an aggregate term of imprisonment for a period of three years, with a non-parole period of 22 months. The sentence was to commence on 7 June 2019 and expire on 6 June 2022, with the non-parole period expiring on 5 April 2021.

Orders

Orders of the court

An aggregate term of imprisonment for a period of three years which is to commence on 7 June 2019 and expire on 6 June 2022. The non-parole period is 22 months and it is to commence on 7 June 2019 and will expire on 5 April 2021.

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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Medium Neutral Citation:	R v Simmons [2019] NSWDC 520
Hearing dates:	02, 03 September 2019
Date of orders:	03 September 2019
Decision date:	03 September 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	An aggregate term of imprisonment for a period of three years which is to commence on 7 June 2019 and expire on 6 June 2022. The non-parole period is 22 months and it is to commence on 7 June 2019 and will expire on 5 April 2021.
Catchwords:	CRIME — Property offences — Break, enter and Steal
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Firearms Act 1996
Cases Cited:	Book v R [2018] NSWCCA 58 R v Ponfield [1999] NSWLR 327
Category:	Sentence
Parties:	Regina (Crown) Raymond Simmons (Offender)
Representation:	Counsel: Brown (Crown) A Hallas (Offender)
File Number(s):	2014/00185745; 2015/00312242; 2018/00181008