CITATION: R v Simon [2005] NSWCCA 123
HEARING DATE(S): 5/04/05
JUDGMENT DATE:
5 April 2005JUDGMENT 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: 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 58PARTIES: Warren Mathew Simon - Appellant/Applicant
The Queen - RespondentFILE NUMBER(S): CCA 2005/19
COUNSEL: H. Cox - Applicant/Appellant
E. Wilkins - RespondentSOLICITORS: 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
2005/19
5 APRIL 2005SPIGELMAN 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…
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- AGLC
- R v Simon [2005] NSWCCA 123
- Case
- [2005] NSWCCA 123
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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