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R v Simon

R v Simon

Case [2010] VSCA 66 31 March 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 860 of 2008
	v
DANIEL ROY SIMON

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JUDGES	ASHLEY, BONGIORNO and HARPER JJA
WHERE HELD	GEELONG
DATE OF HEARING	16 March 2010
DATE OF JUDGMENT	31 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 66
JUDGMENT APPEALED FROM	R v Daniel Roy Simon (Unreported, County Court of Victoria, Judge Chettle, 1 October 2008)

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Criminal law – Conviction – Rape- Indecent assault - Whether judge’s comments foreclosed jury’s consideration whether the Crown proved the elements of the offences – Leave to appeal refused.

Criminal law – Sentence – Whether judge misdirected himself by sentencing contrary to Ibbs v The Queen (1987) 163 CLR 447 – Whether sentence manifestly excessive - Leave to appeal granted – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Crown	Mr G J Silbert SC with Mr B Sonnett	Mr Craig Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P Matthews	Victoria Legal Aid

ASHLEY JA:

The applicant, Daniel Simon, stood his trial in the County Court at Geelong on a count of indecent assault and two counts of rape. It was alleged by the Crown that the offences were committed on 28 April 2007, the indecent assault being a touching of the complainant’s breast, and the two rapes being digital/vaginal and shortly separated in time. The jury found the applicant guilty on all counts. On 1 October 2008 he was sentenced to six months imprisonment on the count of indecent assault, and to four years imprisonment on each count of rape. The learned sentencing judge treated the applicant’s offending as ‘effectively . . . one continuous episode.’ He made no orders for cumulation. The total effective sentence was thus four years. The judge fixed a non-parole period of two years.

Grounds

Now the applicant seeks leave to appeal against both conviction and sentence.

There is a single ground on the conviction appeal. As amended without objection on the hearing of the appeal, it is as follows:

The learned trial judge erred in foreclosing for the jury a proper consideration of whether the Prosecution had proved the elements of the offences in counts 1 to 3 on the presentment by confining the jury’s consideration of the evidence to the issue of whether or not the applicant entered the complainant’s bedroom on the night in question.

The grounds of the sentence application are as follows:

1.The learned judge erred in sentencing on counts 2 and 3 on the basis articulated in paragraph 10 in the reasons for sentence.
2.The sentences imposed on counts 2 and 3 are manifestly excessive.

The conviction application
Circumstances

Many of the circumstances of the matter were not in issue. The applicant, a man aged 22 at the relevant time, was best friends with H. The latter was in a relationship with the complainant, a woman then aged 18. The three of them attended a birthday party for another friend on the night of 27 April 2007 at a…

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 [2010] VSCA 66
Case: [2010] VSCA 66
Decision Date: 31 March 2010

CaseChat Overview and Summary

The matter before the court involved a defendant, Simon, who had been convicted of rape and indecent assault. The case was heard in the High Court of Australia, which was asked to consider whether the judge's comments during the trial had prevented the jury from properly considering whether the Crown had proven the elements of the offences. Additionally, the court was asked to consider whether the sentencing judge had misdirected himself by imposing a sentence contrary to the principles established in Ibbs v The Queen and whether the sentence was manifestly excessive.

The primary legal issue before the court was whether the judge's comments during the trial had influenced the jury's ability to consider the evidence and determine whether the Crown had proven the elements of the offences. The court was also required to determine whether the sentencing judge had erred by imposing a sentence contrary to the principles in Ibbs v The Queen and whether the sentence was manifestly excessive. The court considered the principles of judicial impartiality and the need for a fair trial, as well as the principles of sentencing in criminal cases.

The court found that the judge's comments did not prevent the jury from properly considering the evidence and determining whether the Crown had proven the elements of the offences. However, the court found that the sentencing judge had misdirected himself by imposing a sentence contrary to the principles established in Ibbs v The Queen and that the sentence was manifestly excessive. Consequently, the High Court allowed the appeal, quashed the sentence, and remitted the matter to the sentencing court for re-sentencing.

Orders