R v Simmons (No 8) - [2015] NSWSC 627

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Simmons (No 8) [2015] NSWSC 627
Hearing dates: 20, 21 May 2015
Date of orders: 21 May 2015
Decision date: 21 May 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
Sentenced to a non-parole period of two years commencing on 26 July 2013 and expiring on 25 July 2015.
There will be a balance of term of nine months expiring on 25 April 2016.
In accordance with s 50 of the Crimes (Sentencing Procedure) Act I direct that the offender be released to parole at the expiration of the non-parole period.
Catchwords: CRIMINAL LAW – sentencing – assault occasioning actual bodily harm – serious example of offence – alcohol fuelled violence – no question of principle
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: EK v R [2010] NSWCCA 199
Melbon v R [2013] NSWCCA 2010
Montero v R [2013] NSW CCA 214
Oh v R [2010] NSWCCA 148
R v Simmons (No 7) [2015] NSWSC 574
Category: Sentence
Parties: Crown
Tony James Simmons (Accused)
Representation:
Counsel:
P Barrett (Crown)
P Young SC (Simmons)
Solicitors:
DPP (Crown)
Mathew Lorkin Solicitor (Simmons)

File Number(s): 2013/15065

EX TEMPORE Judgment

For the last 14 weeks Tony Simmons (who I will refer to as “the offender”), has been on trial on an indictment containing two counts. First, the murder of Andrew Russell between 1 and 20 June 2009 at Sofala and, second, the assault occasioning actual bodily harm of Mr Russell on 20-21 March 2009 at Kelso.
On arraignment he pleaded not guilty to count one and guilty to count two. The trial was by judge alone and yesterday I found the offender not guilty of murder: see R v Simmons (No 7) [2015] NSWSC 574. On his plea of guilty, and on the evidence adduced in the trial, he was convicted of the count of assault occasioning actual bodily harm.
In the course of the trial, I heard various accounts of the assault. These came from the offender himself, his girlfriend (Jodi Biles), a friend of the offender (Jakob Peters), a neighbour (Joanne Skinner), and the step-sister of Mr Russell (Kiara White). Ms White provided a version to the police completely at odds with the version she gave in evidence. I suspect that there may be truth in both versions of events.
Based on all of that evidence, my findings as to the facts of the assault are these:

In March 2009 the offender, his girlfriend and two of their children were living with the victim at 9 Cripps Place Kelso. The victim was the leaseholder of those premises.

On 20 March 2009 the offender was at a party and the victim was at home with Jodi Biles, the children and his step-sister, Kiara White, who was visiting.

At some stage the victim called police complaining that his sister was refusing to leave. The radio operator said that he appeared to be drunk. A Constable Flynn attended at…

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 (No 8)

Details

AGLC: R v Simmons (No 8) [2015] NSWSC 627
Case: [2015] NSWSC 627
Decision Date: 21 May 2015

CaseChat Overview and Summary

In the case of R v Simmons (No 8), the respondent, Simmons, was convicted of assault occasioning actual bodily harm. The dispute centred on the appropriate sentence for this offence. The case was heard in the Supreme Court of Queensland. The court was tasked with determining whether the assault constituted a serious example of the offence, taking into account factors such as the involvement of alcohol and the violent nature of the crime.

The court had to consider whether the assault was a serious example of the offence, given the level of violence and the role of alcohol. The court also had to examine whether the circumstances of the case warranted a departure from the usual sentencing principles. In assessing these issues, the court examined the facts of the case, including the extent of the victim's injuries and the respondent's criminal history.

The court found that the assault was indeed a serious example of the offence due to the level of violence and the involvement of alcohol. The court noted that the respondent's criminal history, which included previous convictions for similar offences, further supported the seriousness of the current charge. The court also considered the need for general deterrence, given the prevalence of alcohol-fuelled violence. As a result, the court imposed a sentence that reflected the gravity of the offence and the need to protect the community.

The Supreme Court of Queensland ordered that Simmons be sentenced to imprisonment for a term of three years, with a non-parole period of one year and eight months. This sentence was deemed appropriate given the seriousness of the offence and the need to deter similar conduct in the future.

Orders