R v Simon - [1999] NSWCCA 418

CITATION: R v SIMON [1999] NSWCCA 418

FILE NUMBER(S): CCA 60507/98

HEARING DATE(S): 15 September 1999

JUDGMENT DATE:
15 September 1999

PARTIES :

REGINA v Edward Roy SIMON

JUDGMENT OF: Wood CJ at CL at 24; Simpson J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/11/0363

LOWER COURT JUDICIAL OFFICER: Mitchelmore DCJ

COUNSEL: R D Ellis - Crown
G P Craddock - Applicant

SOLICITORS: S E O'Connor - Crown
T A Murphy - Applicant

CATCHWORDS:

ACTS CITED: Correctional Centres Act 1952
Crimes Act 1900

CASES CITED:
R v Fernando (1992) 76 A Crim R 58
R v Perez unreported, NSWCCA 11 December 1991
R v Hamilton (1993) 66 A Crim R 575
R v Church unreported, NSWCCA 6 November 1998
R v Bell unreported, NSWCCA 29 September 1997

DECISION: Leave to appeal granted, appeal allowed, applicant resentenced

IN THE COURT OF
CRIMINAL APPEAL

605507/98

WOOD CJ & CL J
SIMPSON J

15 September1999

REGINA v Edward Roy SIMON

Judgment

1    WOOD CJ AT CL: I will ask Justice Simpson to deliver the first judgment.
2    SIMPSON J: The applicant seeks an extension of time in which to seek leave to appeal a series of sentences imposed on him by Judge Mitchelmore in the District Court on 20 September 1996. No objection having been raised by the Crown, this court granted the extension of time.
3 The applicant was sentenced in relation to a series of offences which were committed in December 1995 and January 1996. The first offence was of escaping lawful custody committed on 31 December 1995. The applicant was an inmate at the Industrial Training Centre Long Bay. He failed to report at a muster. How he escaped has not been determined. The maximum penalty applicable to the offence is penal servitude for ten years which, by s 34(2) of the Correctional Centres Act of 1952, must be imposed cumulative on all previous sentences imposed by the court or to which the inmate is subject.
4    At the time of his escape the applicant was serving a sentence for assault occasioning actual bodily harm. The sentence was of four years made up of a minimum term of two years and six months and an additional term of one year and six months. So far as can be ascertained from the material before this court, the minimum term expired on 30 May 1998 and the additional term on 30 November 1999. Judge Mitchelmore imposed a fixed term sentence of twelve months which he specified to commence on 24 May 1998. Although it seems that date was provided to him by counsel during the course of debate, it is not clear to me where that date is drawn from. It does not seem to me to be correct. It is, however, an error of only a few days which can readily be corrected. In my view, the sentence imposed for escape should commence on 30 May 1998.
5    The remaining offences were all committed as…

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 [1999] NSWCCA 418
Case: [1999] NSWCCA 418
Decision Date: 15 September 1999

CaseChat Overview and Summary

In the case of Regina v Edward Roy Simon, the applicant appealed against the sentences imposed on him by the District Court. The applicant was sentenced for various offences including escaping lawful custody, stealing a motor vehicle, possession of implements capable of being used to enter a conveyance, malicious damage, larceny, stealing from a person, and using an offensive weapon to avoid lawful apprehension. The Court of Criminal Appeal was tasked with determining whether the sentences imposed by the District Court were manifestly excessive, and if so, whether the sentences should be varied.

The Court considered the principle of totality in sentencing and whether the sentences imposed were excessive having regard to the criminality. The Court also examined whether there were special circumstances justifying departure from the statutory ratio. The Court found that while the overall sentence was not excessive, the commencement dates of some of the sentences were incorrectly specified. Additionally, the Court found that the sentence for using an offensive weapon to avoid lawful apprehension was excessive.

The Court allowed the appeal and resentenced the applicant. The Court varied the commencement dates of the sentences and reduced the sentence for using an offensive weapon to avoid lawful apprehension. The Court also found special circumstances justifying departure from the statutory ratio, and reduced the sentences for stealing from a person and using an offensive weapon to avoid lawful apprehension.

The Court ordered that the applicant be resentenced to a fixed term of penal servitude for twelve months commencing on 31 May 1998 and expiring on 30 May 1999 for the charge of escape. For the charges of stealing a motor vehicle, possession of implements, malicious damage and larceny, the applicant was sentenced to a fixed term of penal servitude for twelve months commencing on 31 May 1998 and expiring on 30 November 2000. For the charge of stealing from a person, the applicant was sentenced to penal servitude for a fixed term of two and a half years commencing on 31 May 1998 and expiring on 30 November 2000. For the charge of using an offensive weapon to avoid lawful apprehension, the applicant was sentenced to a total term of penal servitude of five and a half years commencing on 31 May 1998 and expiring on 30 November 2003, divided into a minimum term of two and a half years commencing on 31 May 1998 and expiring on 30 November 2000, and an additional term commencing on 30 November 2000 and expiring on 30 November 2003.

Orders