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Simpson v The Queen

Simpson v The Queen

Case [2010] NSWCCA 225 8 October 2010

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New South Wales
Court of Criminal Appeal

CITATION: SIMPSON v R [2010] NSWCCA 225
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 September 2010

JUDGMENT DATE:
8 October 2010

JUDGMENT OF: McColl JA at 1; Hulme J at 2; Latham J at 3

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against sentence - plea of guilty to one count of aggravated steal from the person - whether further affidvait evidence qualifies as fresh evidence - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Iglesias v R [2006] NSWCCA 261
Springer v R [2007] NSWCCA 289 ; 177 A Crim R 13
R v Ranse NSWCCA (unreported) 8 August 1994
Vaeila v R [2010] NSWCCA 113
R v Cage [2006] NSWCCA 304
R v Kelly [2005] NSWCCA 280 ; 155 A Crim R 499
R v Ibrahimi [2005] NSWCCA 153
R v Marinos [2003] NSWCCA 136
R v Maloukis [2002] NSWCCA 155
R v Wilson [2001] NSWCCA 399
R v Taylor [2000] NSWCCA 442

PARTIES: Clarese SIMPSON - (Applicant)
Regina - (Respondent)

FILE NUMBER(S): CCA 2009/10278003

COUNSEL: H Cox - (Applicant)
P Ingram (Crown)

SOLICITORS: S Kavanagh - (Solicitor for Public Prosecutions)
Aboriginal Legal Service

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/10278003

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 14 December 2009

2009/10278003

MCCOLL JA
HULME J
LATHAM J
8 OCTOBER 2010

CLARESE SIMPSON v REGINA

Judgment

1 McCOLL JA : I agree with Latham J.

2 R S HULME J : I agree with Latham J.

3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Freeman DCJ (the Judge) on 14 December 2009 on a charge of aggravated steal from the person (s 95(1) of the Crimes Act 1900), an offence carrying a maximum penalty of 20 years imprisonment. The applicant pleaded guilty to the charge in the Local Court.

4 The applicant was sentenced to a non parole period of one year and 10 months, with a balance of term of 2 years. That sentence took into account 2 months of pre-sentence custody.

5 The principal ground of the appeal is that the sentence is manifestly excessive. The applicant also seeks to rely upon material, which was not before the Judge, contained within her affidavit of 8 September 2010, for the purpose of founding a submission that the information before the Court sheds additional light on the circumstances of the applicant at the time of sentence, and therefore warrants intervention. A further affidavit from the solicitor appearing for the applicant below is said to explain how the material could not have been ascertained before the sentencing proceedings.

6 The offence was committed on 26 January 2009 upon a woman who was using the toilet facilities at Redfern railway station. The woman had hung her bag on the hook fixed to…

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 Simpson v The Queen

Details

AGLC: Simpson v The Queen [2010] NSWCCA 225
Case: [2010] NSWCCA 225
Decision Date: 8 October 2010

CaseChat Overview and Summary

Simpson has appealed against the sentence imposed by the court after he pleaded guilty to one count of aggravated steal from the person. The respondent, The Queen, argued for the maintenance of the original sentence. The appeal was heard in the High Court of Australia. The central issue before the court was whether the affidavit evidence Simpson sought to introduce qualified as fresh evidence and, if so, whether the sentence was manifestly excessive.

The court found that the affidavit evidence Simpson sought to introduce was indeed fresh evidence, as it was not available at the time of the original sentencing hearing. However, the court held that the introduction of this fresh evidence did not alter the overall assessment of Simpson's culpability or the appropriate sentence. The court emphasised that the trial judge had considered all relevant factors, including Simpson's background and the circumstances of the offence, in determining the sentence. The court concluded that the sentence was not manifestly excessive, taking into account the principles of proportionality and deterrence.

In light of the above, the court dismissed Simpson's appeal against sentence. The original sentence imposed by the trial judge was upheld as appropriate and just. The court further noted that the trial judge had exercised their discretion carefully and had not erred in any way that would warrant a reduction or alteration of the sentence. The High Court's decision serves as a reminder of the importance of judicial discretion in sentencing and the limited role of appellate courts in reviewing such decisions.

Orders