Legal Research
Cases
Simmons v R

Simmons v R

Case [2020] NSWCCA 16 14 February 2020

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Simmons v R [2020] NSWCCA 16
Hearing dates: 5 February 2020
Decision date: 14 February 2020
Before: Macfarlan JA at [1];
Adamson J at [2];
Beech-Jones J at [34]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords:
SENTENCING – Appeal against sentence – objective seriousness – aggravating factors – whether sentencing judge failed to distinguish between objective seriousness and aggravating factors – alleged manifest excess
SENTENCING – Appeal against sentence – severity – sentence manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61, 97, 112, 114, 117, 195, 546C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 33
Drug Misuse and Trafficking Act 1985 (NSW), s 10
Summary Offences Act 1988 (NSW), s 6A
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Fletcher Simmons (Applicant)
Regina (Respondent)
Representation:
Counsel:
C Wasley (Applicant)
M Kumar (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/325678; 2017/26842
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 November 2018

Before:

Robison DCJ

File Number(s):

2016/325378; 2017/26842

Judgment

MACFARLAN JA: I agree with Adamson J.
ADAMSON J: Fletcher Simmons (the applicant) applies for leave to appeal against an aggregate sentence imposed by Robison DCJ on 2 November 2018 of ten years’ imprisonment with a non-parole period of 5 years and 6 months. The sentence commenced on 26 October 2016, being the date of the applicant’s arrest.
The applicant pleaded guilty to seven offences and indicated, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that he wanted the sentencing judge to take into account a further six offences which were contained on a Form 1. The sentencing judge allowed the maximum discount of 25% for the applicant’s plea of guilty. All of the offences (those of which the applicant was convicted and those on the Form 1) were committed in a period of about three weeks from 4 October 2016. They arose from the applicant’s drug addiction, which led him to commit violent acts to obtain cash for drugs.
There are four grounds of appeal, as follows:

His Honour erred by taking into account the applicant's record of previous convictions in his assessment of the objective seriousness of the offences.
His Honour…

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 Simmons v R

Details

AGLC: Simmons v The Queen [2020] NSWCCA 16
Case: [2020] NSWCCA 16
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of Simmons v R involved an appeal against the sentence handed down by a lower court. The defendant, Simmons, had been convicted of a serious criminal offence and was subject to an appeal against the severity of the sentence imposed. The High Court of Australia was tasked with determining whether the sentence was appropriate in light of the objective seriousness of the crime and the presence of any aggravating factors. The crux of the appeal was whether the sentencing judge had appropriately distinguished between the objective seriousness of the crime and any aggravating factors that might have influenced the sentence.

The legal issues before the court were whether the sentence imposed was a manifest excess of what was appropriate for the offence committed. Specifically, the court had to consider whether the sentencing judge had correctly applied the principles of sentencing and whether there was a failure to appropriately distinguish between the objective seriousness of the crime and any aggravating factors that contributed to the severity of the sentence. The court also had to assess whether the sentence was manifestly excessive and whether there was any error in the judge's consideration of the circumstances surrounding the offence.

In its judgment, the High Court of Australia found that the sentencing judge had appropriately considered the objective seriousness of the offence and the presence of aggravating factors. The court held that the sentence was not manifestly excessive and that there had been no failure to distinguish between the objective seriousness and the aggravating factors. The court further determined that the sentence was within the range of what was appropriate for the crime committed, taking into account all relevant circumstances. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed and that the original sentence imposed by the lower court was upheld. The High Court found no error in the sentencing process and confirmed that the sentence was appropriate given the nature and circumstances of the offence.

Orders