Symonds v Regina - [2007] NSWCCA 282

New South Wales
Court of Criminal Appeal

CITATION: Symonds v Regina [2007] NSWCCA 282

HEARING DATE(S): 10 September 2007

JUDGMENT DATE:
24 September 2007

JUDGMENT OF: Mason P at 1; Adams J at 2; Smart AJ at 3

DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: Multiplicity of offences - Drug Court terminates program - judge considers special circumstances - accumulation of sentences - statutory ratio observed - moderate sentences adequately reflect subjective features - avoidance of "double counting" - further reductions in non-parole periods not warranted

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44

CASES CITED: R v Henry [2004] NSWCCA 306

PARTIES: Brendon Lee Symonds v Regina

FILE NUMBER(S): CCA 2006/00005035 CCAP

COUNSEL: (A) A Francis
(C) M L Barr

SOLICITORS: (A) S E O'Connor
(C) S Kavanagh

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 2005/0145

LOWER COURT JUDICIAL OFFICER: Senior Judge Dive

LOWER COURT DATE OF DECISION: 7 August 2006

IN THE COURT OF
CRIMINAL APPEAL
2006/00005035/CCAP

MASON P
ADAMS J
SMART AJ

Monday 24 September 2007

Brendon Lee Symonds v Regina
JUDGMENT

1 MASON P: I agree with Smart AJ.

2 ADAMS J: I agree with Smart AJ.

3 SMART AJ: Brendon Lee Symonds seeks leave to appeal and thereafter to appeal against these sentences imposed on him on 7 August 2006 in the Drug Court on final hearing:

Count Offence & Maximum imprisonment Date of Offence Sentence

1 Drive conveyance taken without consent of Owner (on summary disposal – imprisonment for 2 years) 30/6/05 Fixed term of 3 months 8/3/06 – 7/6/06

2 Exceed speed limit by more than 15kph and less than 30 (Fine) 30/6/05 Rising of Court

3 Drive unlicensed 30/6/05 Rising of Court

4 Use unregistered vehicle on road
(Fine) 5/5/05 Rising of Court

5 Use uninsured motor vehicle
(Fine) 5/5/05 Rising of Court

6 Never licensed person drive vehicle on road
(18 months imprisonment) 5/5/05 Fixed term of 2 months
8/3/06-7/5/06

7. Break enter & steal
(on summary disposal-
imprisonment for 2 years) 7/7/05 NPP 7 months 8/6/06-7/1/07 with total term of 11 months

8. Resist or hinder police officer in execution of duty -
(on summary disposal - imprisonment for 2 years) 22/2/06 Fixed term of 14 days from
8/1/07 to 21/1/07

9 Use offensive language in/near public place/school 22/2/06 Rising of Court

10 Break enter & steal
(14 years imprisonment) 24/5/06 NPP of 18 months 8/1/07-7/7/08 with
total term of 2 years 4 months

11 Goods in custody
(6 months imprisonment) 3/4/06 Fixed term of 2 months
8/1/07-7/3/07

4 The applicant was arrested on 30 June 2005 in relation to Counts 1, 2 and 3 and released on conditional bail. On 7 July 2005 he was arrested in relation to Count 7 when bail was refused. He remained in custody for 28 days until he entered the Drug Court program on 4 August 2005. On 24 May 2006 the applicant was arrested in relation to Count 10 and bail was refused. Between…

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 Symonds v Regina

Details

AGLC: Symonds v Regina [2007] NSWCCA 282
Case: [2007] NSWCCA 282
Decision Date: 24 September 2007

CaseChat Overview and Summary

In the case of Symonds v Regina, the respondent appealed against the sentences imposed by the Drug Court. The dispute centred on the court's decision to terminate the respondent's participation in the Drug Court program and impose separate sentences for the crimes committed while in the program. The matter was heard in the Court of Appeal. The court had to decide whether the Drug Court correctly exercised its discretion to terminate the respondent's participation in the program and whether the sentences imposed were excessive, considering the statutory ratio between the terms of imprisonment and the non-parole periods.

The court examined the principles governing the termination of Drug Court participation and the imposition of sentences. It considered whether the court had acted within its discretion in terminating the respondent's participation in the Drug Court program and whether the sentences imposed adequately reflected the subjective features of the offences. The court also examined whether the statutory ratio between the terms of imprisonment and the non-parole periods had been observed and whether the cumulative effect of the sentences was excessive.

The court found that the Drug Court had correctly exercised its discretion to terminate the respondent's participation in the program and that the sentences imposed were moderate and adequately reflected the subjective features of the offences. The court also held that the statutory ratio between the terms of imprisonment and the non-parole periods had been observed and that the cumulative effect of the sentences was not excessive. The court held that the sentences imposed were appropriate and that further reductions in the non-parole periods were not warranted.

The court dismissed the appeal and confirmed the sentences imposed by the Drug Court. The court held that the Drug Court had correctly exercised its discretion in terminating the respondent's participation in the program and that the sentences imposed were moderate and reflected the subjective features of the offences. The court also held that the statutory ratio between the terms of imprisonment and the non-parole periods had been observed and that the cumulative effect of the sentences was not excessive.

Orders