Simm v The Queen
[2001] WASCA 435
•10 APRIL 2001
SIMM -v- THE QUEEN [2001] WASCA 435
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 435 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:38/2000 | 10 APRIL 2001 | |
| Coram: | MALCOLM CJ PIDGEON J WALLWORK J | 10/04/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Concurrent sentences each of 3 years' imprisonment imposed | ||
| B | |||
| PDF Version |
| Parties: | NATHAN SIMM THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Re-sentencing of appellant after successful appeal against conviction for armed robbery in company with wounding and aggravated burglary in company Convictions of stealing with violence in a residence in company substituted |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SIMM -v- THE QUEEN [2001] WASCA 435 CORAM : MALCOLM CJ
- PIDGEON J
WALLWORK J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Re-sentencing of appellant after successful appeal against conviction for armed robbery in company with wounding and aggravated burglary in company - Convictions of stealing with violence in a residence in company substituted
Legislation:
Nil
Result:
Concurrent sentences each of 3 years' imprisonment imposed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Ms A G Braddock
Respondent : Mr S P Pallaras QC
Solicitors:
Appellant : Lawton Gillon
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: On 23 March 2001, this Court allowed an appeal by the present appellant against convictions of armed robbery in company with wounding and aggravated burglary in company. This was in the context of a home invasion. Convictions of stealing with violence in company and stealing in a place ordinarily used for human habitation in company were substituted.
2 The appellant was convicted on 16 February 2000 after trial on two counts, namely one count of armed robbery in company while armed with a knife and unlawfully wounding a Mr Collings contrary to s 391 and s 393 of the Criminal Code. The second was a count of aggravated burglary by being in Mr Collings' place without his consent in company, armed with a knife, and doing bodily harm to Mr Collings contrary to s 401(2)(a) of the Code. He was sentenced to imprisonment for 6 years for each offence, to be served concurrently with each other.
3 The position was that, while the appellant was not himself armed, there was, as part of the Crown case against the appellant, a Mr Collard who was armed with a knife. There were a number of other offenders who entered the house for the purpose of committing an armed robbery.
4 At the time of the invasion a Mrs Martin, who also lived in the house, was having a shower. Mr Collings was sitting in a lounge room. There was evidence that the appellant was the first person to enter the house, closely followed by Mr Collard. On the Crown case at the trial, Mr Collard and Mr Collings had a struggle, during which Mr Collings was stabbed. A number of other people also, of course, were in the house and a large sum of money was taken.
5 The case against the appellant at the trial was founded on s 7 of the Criminal Code, on the basis that the appellant and his co-accused had all been involved in the unlawful entry and robbery, that the appellant in particular knew that the house was occupied at the time, and also knew that Mr Collard was armed with a knife.
6 Alternatively, it would have been possible for the matter to be dealt with on the basis that if the appellant knew that Mr Collard was armed with a knife the appellant and his co-accused, having formed a common intention to break into the house knowing it was occupied, a jury could be invited to find the appellant guilty of the offence charged under s 8 of the Criminal Code.
7 The appellant did not give evidence at the trial. He admitted to police in a record of interview that he had entered the house and he had
(Page 4)
- taken two tins of money. He told police he thought there would be no-one in the house. He had thought the occupants were away on holiday. That is why the accused went to the house. They did not expect anyone to be there. They planned to run in and take the television and video and "all that sort of stuff." The appellant told police he was the first person to enter the house and that the others must have followed behind him.
8 His evidence was that he ran straight into the house. When he passed a room on the way to the bedroom he saw Mr Collings in that room. He saw Mr Collings jump up. When he was coming back from the bedroom he saw Mr Collings and Mr Collard scuffling in the first room and said, "I just took off as fast as I could." His evidence was that he did not know that any of the offenders had a knife.
9 It was the fact that there were lights on in the house at the time. It was put to him that that should have caused him to expect someone to be at home. He said that he thought that the lights had been left on to make it look like people were at home when he knew or understood that they would be away. He was specifically asked whether he had seen anyone else in the house besides Mr Collings and his answer was that he had not.
10 When it was put to him that there was also a female in the house who had come out of the bathroom while the robbery was occurring, he said that he did not see her. He said he had taken two tins of money. He took one tin out of the main room and as he was ducking out he saw another tin and he grabbed that. He was only in the house for about 15 seconds and when he had run out Mr Collings had not been there. He maintained throughout that he was the first one into the house and the first one out.
11 The facts as they have been recounted by me seem to be the proper basis upon which this appellant should be re-sentenced and being re-sentenced on the basis that, in accordance with the admissions which he made to the police officers, it would have been open to a jury to find him guilty of stealing money from Mr Collings with actual violence while in company with others. This is because he admitted taking the money and running out of the house after he had seen the scuffle between Mr Collard and Mr Collings. On count 2 he could have been convicted of stealing in a place ordinarily used for human habitation while in company.
12 They were the verdicts which this Court substituted as a result of the appeal against conviction. He now comes to be re-sentenced on that basis. In the meantime we have been informed by counsel for the crown that Mr Collard, who was recently re-tried in Broome in relation to the
(Page 5)
- armed robbery on the basis of a case against him that he stabbed Mr Collings during this affair, was acquitted of the stabbing aspect of the matter and dealt with on the basis that he was guilty of aggravated burglary, the circumstance of aggravation being that he was in company.
13 The verdicts substituted by this Court, however, must stand and the appellant comes before this Court to be sentenced. We have been informed that, following the re-trial of Mr Collard, he was sentenced to imprisonment for 3 years on each of the two counts in the indictment relating to his part in the affair.
14 We have been informed that he had something of a worse record than the present appellant. There is no doubt they both played significant parts in the offences which were committed on that evening.
15 Taking all of the circumstances into account and in particular bearing in mind that, as appears from the pre-sentence report with which we have been provided, the appellant seemed to be unclear about the participation of Mr Collard in the offence, this Court must deal with the matter on the basis of the evidentiary materials which were before us, and on the basis which I have indicated. It needs to be borne in mind that Mr Collard was convicted only on one count of aggravated burglary, whereas the present appellant was convicted on two counts, having taken two separate tins of money from the house.
16 The appellant comes from a family of two children. His mother was originally from Indonesia. He has a close family and enjoyed a very good upbringing. His father is very concerned about his present predicament and the family is supportive. He is single but he has a child aged 5 from a previous casual relationship. He was educated in Perth, completing year 12 at Balga Senior High School. He started work in a factory and since then has done a variety of unskilled jobs. He is described as an intelligent young man who is yet to utilise his full potential.
17 He went up to Broome in January of 1999 to find work because he had been out of work for some time in Perth. He was persuaded to go to Broome to get away from the drug scene in Perth. It was during the short time that he was in Broome that the present offence occurred. He did not find work. At the time of the offence he was in receipt of social security benefits. Once charged and released to bail he returned to Perth and was employed in various casual short-term positions.
(Page 6)
18 It appears that alcohol and cannabis were factors which contributed to the commission of the present offence. The appellant admits to being
(Page 7)
- very intoxicated on the night of the offence, but claimed he usually does not drink. He is a regular user of cannabis and had mixed the two on the night of the offence. He admitted to regular cannabis use. There was also an indication that there was use of heroin.
19 The motivation for the commission of the offence was clearly a need to obtain money. At the time of the offence the appellant was out of work. The appellant was not one of the ringleaders, but went along with what was proposed.
20 In all of the circumstances, while Mr Collard was in the end only convicted of one count of aggravated burglary and the appellant has been convicted of two counts of aggravated burglary, the two tins of money were taken in the course of what was really a single criminal enterprise and, in my view, it would be appropriate to sentence the appellant to imprisonment for 3 years on each of the two counts, but that those sentences should be made concurrent and backdated to 13 February 2000 so that they would be the sentences which I would impose in respect of the two counts involved.
21 WALLWORK J: Yes, I agree with the reasons for judgment of the learned Chief Justice and with the sentence which his Honour has proposed, but I would like to add for my own part that Mr Simm, if you do not stay away from these people that use drugs and using them yourself, you will get a much heavier sentence next time you come back here.
22 PIDGEON J: Yes, I agree with the reasons of the Chief Justice. Tidying up one point, it was a unanimous decision originally to set the verdict aside. As I see it, the appellant committed the offence of stealing knowing that there had been violence by someone. In his statement he thought it was Collard. The effect of the jury's verdict would indicate it may well be one of the others who were in the house; they were not satisfied it was Collard, but the factual situation, as I see it, remains constant. He did the stealing knowing the violence had taken place and I agree with the reasons of the Chief Justice and certainly agree with what Wallwork J said to the appellant.
23 MALCOLM CJ: I also wish to associate myself with the remarks made by Wallwork J. You must be very careful in the future otherwise you might find yourself serving a lengthy prison term.
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