R v Simmons - [2008] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 241 of 2007

THE QUEEN
	v
JAKE SIMMONS

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JUDGES:	NETTLE, WEINBERG JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 2008
DATE OF JUDGMENT:	16 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 185

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CRIMINAL LAW – Sentence – Handling stolen goods and possession of drug of dependence – Whether trial judge erred in assessing appellant’s culpability – Whether appellant’s sentence should be reduced in light of a co-offender’s successful sentence appeal – Parity – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr S R Johns	Balmer & Associates

NETTLE JA:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

On 1 August 2007, the appellant, Jake Simmons, pleaded guilty in the County Court at Melbourne to one count of handling stolen goods and one count of possession of a drug of dependence. After hearing a plea in mitigation, the judge sentenced him on 23 August 2007 to a term of two years and nine months' imprisonment on the count of handling and to a fine of $500 on the count of possession.

His Honour ordered that 12 months of the term of two years and nine months be suspended for a period of three years. This resulted in a term of one year and nine months to be served with the balance of 12 months suspended.

The appellant now relies upon four grounds of appeal against his sentence. In summary, he argues that he should be re-sentenced because:
·    a co-offender, one EDB, was successful in having his sentence reduced by this Court earlier this year;
·    the sentencing judge erred in regarding the appellant's culpability as greater than that of a co-offender, Stephen Kavanagh;
·    his Honour erred in failing to inform counsel for the appellant that he proposed to sentence the appellant on the footing that his culpability was greater than that of Kavanagh based upon the maximum penalty for the offence of handling; and
·    his Honour erred in his amplification of a parity principle.
In order to understand these grounds, it is necessary to summarise briefly the circumstances surrounding this offence. In 2003 police obtained warrants to monitor and record telephone conversations to and from mobile phones and the landline used by Kavanagh. The warrants were obtained on the basis that Kavanagh was a suspected drug trafficker. At that time the appellant was employed as a sub-contractor for P&O Transport at the Melbourne docks.

On 20, 21 and 22 June 2003 the police intercepted a series of telephone calls between Kavanagh, EDB, one Mark Malkoun and the appellant. EDB was a yard foreman at the docks and Malkoun was a driver employed by Kavanagh as a sub-contractor.

The substance of the conversation intercepted on 20 June concerned the planning and execution of the theft of two container loads of cigarettes from the…

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 [2008] VSCA 185
Case: [2008] VSCA 185
Decision Date: 16 September 2008

CaseChat Overview and Summary

The appellant, Simmons, was convicted of handling stolen goods and possession of a drug of dependence. The case was heard in the Court of Appeal. Simmons appealed against the severity of his sentence, contending that the trial judge erred in assessing his culpability and that his sentence should be reconsidered in light of a co-offender's successful appeal against their sentence. The central legal issues in this appeal were whether the trial judge made an error in assessing the appellant's culpability and if the disparity in sentencing between Simmons and his co-offender warranted a reduction in his sentence.

The Court of Appeal carefully examined the trial judge's assessment of Simmons' culpability. They found no basis to conclude that the trial judge had erred in their assessment. The court also considered the principle of parity, which requires consistency in sentencing for similar offences committed in the same circumstances. However, the court determined that the circumstances of the co-offender's case were sufficiently distinct to justify the difference in sentencing. The appeal was dismissed as the court found no grounds to alter the original sentence.

The Court of Appeal's decision was grounded in a thorough analysis of the sentencing principles and the specifics of the appellant's case. They held that the trial judge had correctly applied the relevant legal principles in determining the appellant's culpability and that the sentence was proportionate to the gravity of the offences committed. Consequently, the appeal was unsuccessful, and the original sentence was upheld.

Orders