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R v Simpson

R v Simpson

Case [2020] NSWDC 569 13 July 2020

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District Court

New South Wales

Medium Neutral Citation: R v Simpson [2020] NSWDC 569
Hearing dates: 18 June 2020, 10 July 2020
Decision date: 13 July 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 13 years with a non parole period of 8 years 6 months

Catchwords:
CRIME – Firearms Act - firearms offences - unauthorised supply of pistols by Firearms’ dealer - 276 pistols supplied - seven offences
LICENSING — Firearms licensing — fraudulent disposal transactions - registration of firearms breaches — Dealers
SENTENCING — Relevant factors on sentence — two hundred and seventy six (276) pistols supplied - seven offences over seven years - Form 1 matters - early guilty plea - firearms dealer - breach of trust - duress claimed - family hardship claimed - application of principle - special circumstances – COVID-19

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Firearms Act 1996

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application No. 1 (2002) 56 NSWLR 1
Barbaro v The Queen (2014) 253 CLR 58
Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41
Devaney v R [2012] NSWCCA 285
Dionys v R [2011] NSWCCA 272
Fox v Percy (2003) 214 CLR 118
Giang v R [2017] NSWCCA 25
Hili v The Queen (2010) 242 CLR 250
Hoskins v R [2016] NSWCCA 154
Howard v R [2004] NSWCCA 348
Ibrahimv R [2019] NSWCCA 188
Markarian v The Queen (2005) 228 CLR 357
MP v R [2009] NSWCCA
Muldrock (2011) 244 CLR 120
Olbrich v The Queen (1999) 199 CLR 270
Pearce v The Queen(1988) 194 CLR 610
Postiglone v The Queen (1997) 189 CLR 295
R v Ceissman [2004] NSWCCA 466
R v Edwards (1996) 90 A Crim R 510
R v Herring (1956) 73 WN (NSW) 203
R v Howard [2004] NSWCCA 348
R v Knight (2005) 155 A Crim R 252
R v Lawrence [2019] NSWDC 816
R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Z (2005) 2 AC 467
Tepania v R [2018] NSWCCA 247
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365
Wieninger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Category: Sentence
Parties: Shane James Simpson (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr W Terracini SC and Mr D Grippi (for the offender)
Ms G Steedman, Crown Prosecutor
Solicitors:
Mc Aneny Lawyers (for the offender)

File Number(s): 2019/00112563

SENTENCE

Firearms Act 1996 offences

The purpose of the Firearms Act 1996 is clear; firearm possession is a privilege that is conditional on the overriding need to ensure public safety: s 3(1)(a). Any breach of the Firearms Act is regarded as serious. That seriousness must be reflected in the sentences imposed for major…

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 Simpson

Details

AGLC: R v Simpson [2020] NSWDC 569
Case: [2020] NSWDC 569
Decision Date: 13 July 2020

CaseChat Overview and Summary

The case of R v Simpson involved the defendant, a firearms dealer, who was charged with seven offences under the Firearms Act for the unauthorised supply of 276 pistols. The court had to determine whether the defendant's actions constituted a breach of trust and if any mitigating factors, such as duress or family hardship, should be considered in the sentencing. The defendant claimed duress in the form of threats made by a gang, and also argued that the family hardship resulting from his imprisonment should be taken into account.

The primary legal issues before the court were whether the defendant's actions constituted a breach of trust as a firearms dealer, and if any mitigating factors should reduce the severity of the sentence. The court had to weigh the seriousness of the offences, the number of firearms involved, and the defendant's culpability. The court also considered the defendant's early guilty plea and the impact of the COVID-19 pandemic on the proceedings.

In delivering the judgment, the court recognised the gravity of the offences, noting the significant breach of trust by the defendant as a firearms dealer. The court found that while the defendant had pleaded guilty early and claimed duress and family hardship, these factors did not sufficiently mitigate the serious nature of the crimes committed. The court sentenced the defendant to an aggregate term of 13 years imprisonment, with a non-parole period of 8 years and 6 months. This sentence reflected the seriousness of the offences and the need to protect the community from the unauthorised supply of firearms.

The court's decision underscored the importance of adhering to the provisions of the Firearms Act and the responsibilities of a firearms dealer. The court considered the defendant's claims but ultimately determined that they did not outweigh the need for a substantial sentence to reflect the seriousness of the breach of trust and the significant number of firearms involved. The sentence imposed aims to deter similar offences in the future and to uphold public safety.

Orders

Orders of the court

Aggregate sentence of 13 years with a non parole period of 8 years 6 months

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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Citations

AGLC Citation

R v Simpson [2020] NSWDC 569

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 30 of 30 shown

R v Lawrence
[2019] NSWDC 816 Para 54

…discussed in argument, such as one where the gaoling of a mother who may see her children taken into care: see my judgment R v Lawrence [2019] NSWDC 816 at [28] – [35].…
Ibrahim v The Queen
[2019] NSWCCA 188 Para 76

…ve found my must be reflected in the sentence impose: R v Howard [2004] NSWCCA 348; Dionys v R [2011] NSWCCA 272; MP v R [2009] NSWCCA; Ibrahim v R [2019] NSWCCA 188.…
Tepania v The Queen
[2018] NSWCCA 247 Para 39

…eatures of the offence which were or were not taken into account when considering the role of the standard non‑parole period: s 54B(6); Tepania v R [2018] NSWCCA 247 at [103] to [120].…
Giang v R
[2017] NSWCCA 25 Para 16

…ive gravity if an offence is committed because of threats of fear and harm to one’s self or others rather than financial profit or greed: Giang v R [2017] NSWCCA 25 at [33]; R v Z (2005) 2 AC 467 at [22].…
Vale v R
[2016] NSWCCA 154 Para 54

…n unless such hardship is “wholly”, “highly” or “truly” exceptional: R v Edwards (1996) 90 A Crim R 510, Gleeson CJ at [515]; Hoskins v R [2016] NSWCCA 154 at [63]. But as every sentence requires individual consideration the nature and degree of the impact of the sentence upon others must be considered. So too must…
R v Pham
[2015] HCA 39 Para 64

…ctors that must be weighed in determining the appropriate sentence will be never precisely the same as in a past case or cases.” The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, per Bell and Gaegler JJ at [47]; Hili v The Queen (2010) 242 CLR 250; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
Barbaro v The Queen
[2014] HCA 2 Para 64

…s.” The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, per Bell and Gaegler JJ at [47]; Hili v The Queen (2010) 242 CLR 250; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
Abbas, Bodiotis, Taleb and Amoun v R
[2013] NSWCCA 115 Para 42

…ich they relate, that is the seventh s 51B count: Attorney General’s Application No. 1 (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The Court does not “in any sense” impose sentences for those offences: Attorney General’s Application No. 1 at [68].…
Devaney v R
[2012] NSWCCA 285 Para 50

…terial before me. Mr Jones’ professional opinion based on an uncontroversial history supported by other material. It can be accepted: Devaney v R [2012] NSWCCA 285 at [88]. His opinions are relevant to the offender’s mental state, prospects and future risk. The material also allows for some understanding of the man…
Cargnello v Director of Public Prosecutions (Cth)
[2012] NSWCCA 162 Para 60

…at those who are wealthier should receive lesser sentences because they have more to lose: Cargnello v Director of Public Prosecutions (Commonwealth) [2012] NSWCCA 162 at [60].…
Lindsay v R
[2012] NSWCCA 124

…aim of some threats or intimidation. Of course, every case must be examined on its own particular facts and the evidence led.” Citing Lindsay v R [2012] NSWCCA 124…
Dionys v R
[2011] NSWCCA 272 Para 76

…but they can go only so far. The objective facts I have found my must be reflected in the sentence impose: R v Howard [2004] NSWCCA 348; Dionys v R [2011] NSWCCA 272; MP v R [2009] NSWCCA; Ibrahim v R [2019] NSWCCA 188.…
Muldrock v The Queen
[2011] HCA 39 Para 40

…I am however required to give content to the standard non‑parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, made clear neither can I engage in a staged approach to sentencing. Accordingly, any finding about objective seriousness does not compel any one result. There are reasons here in the…
Tiknius v R
[2011] NSWCCA 215 Para 17

…Such non‑exculpatory duress may affect the degree of the offender’s subjective or moral culpability and prospects of rehabilitation: Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 at [41]. The weight given to it depends on the form and duration of the offender’s criminal conduct, the nature of the threats m…
R v
[2011] SADC 3 Para 16

…mitted because of threats of fear and harm to one’s self or others rather than financial profit or greed: Giang v R [2017] NSWCCA 25 at [33]; R v Z (2005) 2 AC 467 at [22].…
Hili v The Queen
[2010] HCA 45 Para 64

…isely the same as in a past case or cases.” The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, per Bell and Gaegler JJ at [47]; Hili v The Queen (2010) 242 CLR 250; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
Cahyadi v R
[2007] NSWCCA 1 Para 66

…ultimately be just and appropriate measure of the total criminality: Postiglone v The Queen (1997) 189 CLR 295 per McHugh J at 307‑308; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.…
R v MAK
[2006] NSWCCA 381 Para 68

…increase in the length of the sentence. That is, a sentence of two years is more severe than a sentence of one year proportionally: R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. It is recognised that also the public confidence in the administration of justice requires the Court avoiding any suggestio…
Markarian v The Queen
[2005] HCA 25 Para 38

…alty or where it applies the standard non‑parole period, and then proceed by way of making proportional deductions from it; Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].…
R v Ceissman
[2004] NSWCCA 466 Para 18

…Economic duress and continued association with career criminals does not of itself mitigate an offender’s criminality: R v Ceissman [2004] NSWCCA 466 at [24].…
R v Howard
[2004] NSWCCA 348 Para 1

…ach of the Firearms Act is regarded as serious. That seriousness must be reflected in the sentences imposed for major breaches of the Act: Howard v R [2004] NSWCCA 348 at [66].…
Fox v Percy
[2003] HCA 22 Para 20

…assess his evidence “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118.…
Weininger v The Queen
[2003] HCA 14 Para 59

…ny matters that must be taken into account the proper characterisation may lie somewhere along the line between two extremes: Wieninger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [20].…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 42

…t when determining the appropriate penalty for the offence which they relate, that is the seventh s 51B count: Attorney General’s Application No. 1 (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The Court does not “in any sense” impose sentences for those offences:…
Lawler v Johnson
[2002] NSWSC 864

…Act 1995 Firearms Act 1996 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1 (2002) 56 NSWLR 1 Barbaro v The Queen (2014) 253 CLR 58 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 Devaney v R [2012] NSWCCA 285 Dionys v R [2011] NSWCCA 272 Fox v Percy (2003)…
R v Simpson
[2001] NSWCCA 534 Para 70

…riod for which the offender should be imprisoned must also properly reflect the gravity of his offences for the purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].…
R v Olbrich
[1999] HCA 54 Para 19

…lished. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270. Matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond re…
Regina v Simpson
[1999] NSWCCA 367 Para 70

…offender should be imprisoned must also properly reflect the gravity of his offences for the purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].…
Pearce v The Queen
[1998] HCA 57 Para 3

…to continue undetected; noting again that this is a separate offence and elements and factors in common cannot be doubly punished: Pearce v The Queen (1988) 194 CLR 610 at [40].…
Postiglione v the Queen
[1997] HCA 26 Para 66

…s. Importantly, the aggregation of all the sentences must ultimately be just and appropriate measure of the total criminality: Postiglone v The Queen (1997) 189 CLR 295 per McHugh J at 307‑308; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.…

Legislation cited in this decision · 3

Firearms Act 1996 (TAS)
2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 17)
Evidence Act 1995 (Cth)
1 mention (from Para 19)

Medium Neutral Citation:	R v Simpson [2020] NSWDC 569
Hearing dates:	18 June 2020, 10 July 2020
Decision date:	13 July 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 13 years with a non parole period of 8 years 6 months
Catchwords:	CRIME – Firearms Act - firearms offences - unauthorised supply of pistols by Firearms’ dealer - 276 pistols supplied - seven offences LICENSING — Firearms licensing — fraudulent disposal transactions - registration of firearms breaches — Dealers SENTENCING — Relevant factors on sentence — two hundred and seventy six (276) pistols supplied - seven offences over seven years - Form 1 matters - early guilty plea - firearms dealer - breach of trust - duress claimed - family hardship claimed - application of principle - special circumstances – COVID-19
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1 (2002) 56 NSWLR 1 Barbaro v The Queen (2014) 253 CLR 58 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 Devaney v R [2012] NSWCCA 285 Dionys v R [2011] NSWCCA 272 Fox v Percy (2003) 214 CLR 118 Giang v R [2017] NSWCCA 25 Hili v The Queen (2010) 242 CLR 250 Hoskins v R [2016] NSWCCA 154 Howard v R [2004] NSWCCA 348 Ibrahimv R [2019] NSWCCA 188 Markarian v The Queen (2005) 228 CLR 357 MP v R [2009] NSWCCA Muldrock (2011) 244 CLR 120 Olbrich v The Queen (1999) 199 CLR 270 Pearce v The Queen(1988) 194 CLR 610 Postiglone v The Queen (1997) 189 CLR 295 R v Ceissman [2004] NSWCCA 466 R v Edwards (1996) 90 A Crim R 510 R v Herring (1956) 73 WN (NSW) 203 R v Howard [2004] NSWCCA 348 R v Knight (2005) 155 A Crim R 252 R v Lawrence [2019] NSWDC 816 R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Z (2005) 2 AC 467 Tepania v R [2018] NSWCCA 247 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 Wieninger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Category:	Sentence
Parties:	Shane James Simpson (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr W Terracini SC and Mr D Grippi (for the offender) Ms G Steedman, Crown Prosecutor Solicitors: Mc Aneny Lawyers (for the offender)
File Number(s):	2019/00112563