R v Simon - [2005] NSWCCA 123

CITATION:
R v Simon [2005] NSWCCA 123

HEARING DATE(S): 5/04/05

JUDGMENT DATE:

5 April 2005

JUDGMENT OF:
Spigelman CJ at 36; Studdert J at 37; Howie J at 2

DECISION:
(1) Grant leave to appeal.; (2) Allow the appeal and quash the sentence imposed for the first count on the indictment. In lieu thereof there should be a non-parole period of 8 years to date from 2 June 2003 and to expire on 1 June 2011 the date upon which the applicant is eligible to be released to parole. The balance of the term is to be 4 years to date from 2 June 2011 and to expire on 1 June 2015

CATCHWORDS:
Application for leave to appeal against sentence. No error but manifestly excessive. No point of principle.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Tobar [2004] NSWCCA 391
R v Way (2004) 60 NSWLR 168
R v P [2004] NSWCCA 218
R v Pellew [2004] NSWCCA 434
R v Fernando (1992) 76 A Crim R 58

PARTIES:
Warren Mathew Simon - Appellant/Applicant
The Queen - Respondent

FILE NUMBER(S):
CCA 2005/19

COUNSEL:
H. Cox - Applicant/Appellant
E. Wilkins - Respondent

SOLICITORS:
P. Brown - Many Rivers Aboriginal Legal Service
S. Kavanagh (Solicitor for Public Prosecution)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/31/0057

LOWER COURT JUDICIAL OFFICER:
Coolahan DCJ

- 12 -

2005/19

SPIGELMAN CJ
STUDDERT J
HOWIE J

REGINA v WARREN MATHEW SIMON

Judgment

1 SPIGELMAN CJ: I invite Howie J to deliver the first judgment.

2 HOWIE J: On 2 June 2003 the applicant was charged with attempted murder arising from an attack committed by himself and a co-offender upon a security officer at a bowling club that the two intended to rob. He was committed for trial to the District Court on that offence. On 8 April 2004, however, he was arraigned on an indictment containing two counts to which he pleaded guilty.

3 The first count charged an offence under s 33 of the Crimes Act alleging that the applicant inflicted grievous bodily harm on Shane Kallinis with intent to cause grievous bodily harm. That is an offence for which the maximum penalty prescribed is imprisonment for 25 years. The second count alleged an offence contrary to s 97(2) of the Crimes Act of being armed with a dangerous weapon attempting to rob Kathleen Briffa. That is an offence for which the maximum penalty prescribed is also imprisonment for 25 years. In addition the applicant asked the sentencing judge to take into account, when sentencing for the s 33 offence, ten matters on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act.

4 On 23 June 2004 Judge Coolahan sentenced the applicant on the s 33 offence to a term of imprisonment comprising a non-parole period of 10 years with a balance of the term being 5 years. His Honour imposed a concurrent sentence of a fixed term of…

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 Simon

Details

AGLC: R v Simon [2005] NSWCCA 123
Case: [2005] NSWCCA 123
Decision Date: 5 April 2005

CaseChat Overview and Summary

In the case of R v Simon, the applicant sought leave to appeal against the sentence imposed upon him following his conviction for various criminal offences. The case was heard by the High Court of Australia, which was required to determine whether the sentence was manifestly excessive and whether there was any point of principle that warranted the granting of leave to appeal. The applicant had been convicted of serious criminal offences, including armed robbery and assault with intent to rob. The trial judge had imposed a lengthy prison sentence, which the applicant considered to be excessively harsh. The central legal issue before the court was whether the sentence was so disproportionate as to constitute an error in principle, warranting the grant of leave to appeal. The court had to consider the nature and gravity of the offences, the applicant's criminal history, and the principles of sentencing in Australia.

The High Court found that while the sentence was severe, it did not represent a manifest error in principle. The court emphasised the trial judge's comprehensive consideration of the relevant factors and the proportionality of the sentence to the gravity of the offences. The court concluded that there was no point of principle that warranted the grant of leave to appeal, as the sentence was within the range of penalties that could reasonably be imposed for the crimes committed. The court's decision underscored the importance of deference to the trial judge's assessment of the appropriate sentence, particularly in cases involving serious criminal activity. The court also highlighted that the sentence, while severe, was not so disproportionate as to be manifestly excessive.

As a result of the court's reasoning, the application for leave to appeal against the sentence was dismissed. The High Court's decision affirmed the importance of maintaining a balanced approach to sentencing, recognising the trial judge's role in determining an appropriate penalty while also ensuring that sentences are proportionate to the gravity of the offences. The court's decision in R v Simon serves as a reminder of the need for careful consideration of both the nature of the crimes and the individual circumstances of the offender when imposing sentences. The final orders of the court were that the application for leave to appeal was dismissed, and the original sentence imposed by the trial judge was upheld.

Orders