R v De Simoni [1981] HCA 31

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Brennan J. R v De Simoni [1981] HCA 31

ORDER Grant special leave to appeal. Allow the appeal. Remit the matter to the Court of Criminal Appeal to deal with the grounds of the application not already considered by that Court.

Cur. adv. vult.

The following written judgments were delivered:—

June 16 Gibbs C.J.

This is an application for the grant of special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia allowing an appeal by the respondent, Luciano De Simoni, against the sentence imposed upon him on his conviction for robbery.

The respondent pleaded guilty before a judge of the District Court of Western Australia to an indictment which alleged that on 25 May 1979 at Mundaring he "stole from one Florence Kathleen Scott with actual violence one hundred and eighty dollars ($180) in money the property of the said Florence Kathleen Scott". The indictment was in the form prescribed by the Criminal Practice Rules (W.A.) for use in stating the offence of robbery under s. 391 of the Criminal Code W.A.. After judgment of conviction had been entered counsel for the Crown stated the material facts to the court. He stated that the victim of the robbery was a lady aged 78 and that at the time of the robbery the respondent struck her a heavy blow on the back of the head inflicting a wound to the scalp at the rear of the skull. The wound was about 10 centimetres in length and required eight stitches. Counsel for the respondent then addressed the Court, and did not dispute that the respondent had used personal violence or that he had wounded his victim by a blow to the head. The learned trial judge sentenced the respondent to imprisonment for a period of seven years and directed that he serve a minimum period of four years before becoming eligible for parole. In the course of the remarks which he made before imposing sentence the learned trial judge said: