R v SIMON [1999] NSWCCA 418

R v SIMON [1999] NSWCCA 418

Although the sentencing judge's reliance on totality disclosed no significant error in the overall sentence for the total criminality, error was demonstrated in the commencement dates and, once the sentences were restructured, the sentences for stealing from the person and using an offensive weapon to avoid lawful apprehension were excessive. The applicant's post-incarceration conduct and the accumulation of sentences justified a finding of special circumstances and resentencing.

Jurisdiction
Australia
Judgment Date
15 September 1999
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced
Outcome
Leave to appeal granted, appeal allowed, applicant resentenced
Legal Topics
['extension of Time' 'leave to Appeal Against Sentence' 'manifest Excess' 'totality Principle' 'special Circumstances' 'aboriginality and Sentencing' 'escape Lawful Custody' 'using Offensive Weapon to Avoid Lawful Apprehension']
['criminal Law' 'sentencing' 'criminal Procedure'] ['extension of Time' 'leave to Appeal Against Sentence' 'manifest Excess' 'totality Principle' 'special Circumstances' 'aboriginality and Sentencing' 'escape Lawful Custody' 'using Offensive Weapon to Avoid Lawful Apprehension']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the applicant should receive an extension of time to seek leave to appeal against sentences imposed in the District Court.' 'Whether the sentences, particularly the sentence for using an offensive weapon to avoid lawful apprehension, were manifestly excessive.' 'Whether the commencement dates of the sentences should be restructured.' 'Whether special circumstances justified departure from the s 5 (2) ratio.']

Ratio Decidendi

Although the sentencing judge's reliance on totality disclosed no significant error in the overall sentence for the total criminality, error was demonstrated in the commencement dates and, once the sentences were restructured, the sentences for stealing from the person and using an offensive weapon to avoid lawful apprehension were excessive. The applicant's post-incarceration conduct and the accumulation of sentences justified a finding of special circumstances and resentencing.

Court Disposition

Leave to appeal granted, appeal allowed, applicant resentenced

Orders

  • ['Extension of time granted.' 'Leave to appeal granted.' 'Appeal allowed.' 'On count (1), escape lawful custody, the applicant is sentenced to a fixed term of penal servitude for twelve months commencing on 31 May 1998 and expiring on 30 May 1999.' 'On counts (2) to (5), the applicant is sentenced to an identical...