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District Court 11 October 2024

R v Simmonds

[2024] NSWDC 469

Firearms & weaponsPublic order & justice offences

Citation: R v Simmonds [2024] NSWDC 469
Court: District Court of New South Wales
Date: 11 October 2024
Judge(s): Allen DCJ

Background

The offender, a 29-year-old man, was sentenced for five substantive offences committed across three separate occasions in 2021. The offences fell into two broad groups: a single count of accessory after the fact to armed robbery in company with a dangerous weapon (5 April 2021), and a cluster of firearms-related offences together with an accessory after the fact count relating to a shooting (26 September 2021 and 7 October 2021).

The robbery accessory count arose from the offender assisting a co-offender, McAlister, by attempting to set fire to a stolen Jeep that had been used as a getaway vehicle after an armed robbery at a tavern. The shooting accessory count arose from the offender driving the shooter away from a residential street after a firearm was discharged, seriously injuring a victim. The firearms offences were discovered when police stopped and searched the offender and subsequently searched his home, finding an imitation prohibited pistol and ammunition in breach of a firearms prohibition order.

The offender pleaded guilty to all matters, at varying stages of proceedings. Three additional offences were placed on Form 1 documents and taken into account on sentence. The offender had spent time in custody since 7 October 2021.

Legal Issues

  • What was the appropriate objective seriousness for each group of offences, including the two accessory after the fact counts and the firearms possession offences?
  • To what extent did the offender's background of childhood deprivation, abandonment, sexual abuse in juvenile detention, and resulting complex mental health and drug issues (the "Bugmy factors") reduce his moral culpability?
  • What guilty plea discounts applied to each offence, given the different stages at which pleas were entered?
  • Whether an aggregate sentence was appropriate and, if so, what the correct balance between accumulation and concurrency should be, applying the totality principle?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory ratio?

Decision

Objective seriousness: Accessory after the fact to armed robbery

The attempt to destroy the Jeep lasted approximately five minutes and was largely unsuccessful. The vehicle was only partially damaged, police recovered DNA and other evidence linking the co-offender to the robbery regardless, and the VIN remained traceable. The offender's role was confined to a single, brief, and ineffective act. He was recruited by the co-offender and motivated by an offer of illicit drugs, and his knowledge of the principal offence extended only to its bare elements. The court assessed this offence as a relatively less serious example of its type, falling below the broad mid-range of objective seriousness (at [47]).

Objective seriousness: Accessory after the fact to discharge firearm with intent to cause GBH

The offender was present throughout the shooting in a residential street where children were nearby, and he drove the shooter from the scene. The victim, Danny Armstrong, sustained serious injuries requiring surgery including a bone graft. The shooter has never been brought to justice. The offender's presence throughout the entirety of the principal offence significantly elevated the objective seriousness, and the court assessed this count at the upper level of the broad mid-range of seriousness (at [58]).

Objective seriousness: Firearms possession offences

The prohibited pistol was an imitation, incapable of being fired, and was not found on the offender's person or linked to other offending. The court accepted that these circumstances reduced the gravity of the possession count and the associated firearms prohibition order breach, placing those offences below the broad mid-range of seriousness (at [59]).

Moral culpability and the Bugmy factors

The offender described a profoundly traumatic upbringing involving parental neglect, domestic violence, homelessness from age 10, and sexual assault while in juvenile detention. A psychologist diagnosed severe depression, anxiety, PTSD, complex PTSD, ADHD, and substance dependence disorder, each active at the time of the offences. The court accepted that these factors, while not strictly causative of the offending in a narrow sense, played a contextual role and warranted a moderate reduction in moral culpability, with a corresponding moderation of the weight to be given to general and specific deterrence, denunciation, and community protection (at [70]-[75], [82]-[83]). The court was careful to observe that a compelling subjective case cannot produce a sentence disproportionate to the objective seriousness of the offending (at [86]).

Guilty plea discounts

The court applied a 25% discount to the armed robbery accessory count (plea entered as soon as practicable after presentation of an ex officio indictment), a 5% discount to the shooting accessory count (plea entered after trial commenced but on the day the charge was added as an ex officio count), and a 10% discount to the firearms possession offences (pleas entered more than 14 days before the listed trial date) (at [94]).

Aggregate sentence and totality

The offences involved different victims, different dates and places, and distinct acts of criminality. The court found that some degree of accumulation was required, but that an aggregate sentence best gave effect to the totality principle. Special circumstances were found to exist based on the offender's need for an extended period of closely supervised parole to address complex mental health issues and long-standing drug addiction (at [102]-[103]). The sentencing was backdated to 7 October 2021, the date the offender was first taken into custody referable to these matters (at [91]).

Orders Made

  • The offender was convicted on each charge.
  • Pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence of imprisonment was imposed with a total term of 4 years and 6 months and a non-parole period of 3 years and 2 months, commencing 7 October 2021.
  • The offender became eligible for release on parole on 6 December 2024, with the court recommending such release.
  • The total sentence expires on 6 April 2026.
  • In respect of each section 166 related offence (possess ammunition without licence and drive with unauthorised number plate), upon conviction, no further order was made pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the time already spent in custody.

Key Takeaways

  • The District Court confirmed that the objective seriousness of an accessory after the fact offence is substantially influenced by the offender's presence during the commission of the principal offence: being present throughout a shooting, then driving the shooter away, placed the accessory count in the upper level of the broad mid-range, while a brief and largely unsuccessful attempt to destroy evidence after the principal offenders had already fled placed the robbery accessory count below the mid-range (at [47], [58]).

  • Where an imitation firearm cannot be loaded or discharged and is not connected to other offending, those features bear on objective seriousness and may place possession below the broad mid-range, notwithstanding the potential consequences of imitation firearms in a criminal context remain relevant (at [59]).

  • Bugmy factors, encompassing severe childhood deprivation, abandonment, sexual abuse in juvenile detention, and resultant complex mental health and addiction disorders, can produce a moderate reduction in moral culpability and a corresponding moderation of deterrence and denunciation, even where drug addiction itself is not treated as a mitigating factor in isolation (at [70]-[75], [82]-[83]).

  • Guilty plea discounts under the Crimes (Sentencing Procedure) Act 1999 (NSW) are calibrated to the precise stage at which each plea is entered: the court applied 25%, 10%, and 5% discounts to different counts within the same proceedings, reflecting the separate procedural histories of each charge (at [94]).

  • A finding of special circumstances based on the need for extended supervised treatment on parole is available even where the same subjective circumstances have already moderated the sentence, provided the non-parole period still adequately reflects the criminality involved and the court avoids double-counting those factors in fixing the total term (at [100]-[102]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW)
- Road Transport (Vehicle Registration) Regulation 2017 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Clark-Jeffries v R [2019] NSWCCA 56
- Devaney v R [2012] NSWCCA 285
- Elias v The Queen (2013) 248 CLR 483
- Imbornone v R [2017] NSWCCA 144
- Kamanic v R [2014] NSWCCA 116
- Lloyd v R [2022] NSWCCA 18
- Lurque v R [2017] NSWCCA 266
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- Osman v R [2020] NSWCCA 78
- Palu v R [2002] NSWCCA 381
- Pym v R [2014] NSWCCA 182
- R v AEM [2002] NSWCCA 58
- R v Almirol (No 2) [2007] NSWSC 323
- R v Crawley [2021] NSWDC 354
- R v Dawson [2022] NSWSC 1632
- R v Dileski [2002] NSWCCA 345
- R v Doudar [2020] NSWSC 1262
- R v Farroukh and Farroukh (unreported, 29/3/96 NSWCCA)
- R v Johnson [2014] NSWSC 1254
- R v Qutami [2001] NSWCCA 353
- R v Simpson (2001) 53 NSWLR 704
- R v Walsh; R v Sharp [2004] NSWSC 111
- R v Ward [2004] NSWSC 420
- R v Warwick (No 94) [2020] NSWSC 1168
- ZA v R [2017] NSWCCA 132