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Court of Criminal Appeal 17 December 2009

SIMPSON, Peter Francis v R

[2009] NSWCCA 297

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEVERITY OF SENTENCES CHILD SEXUAL ASSAULT OFFENCES SIX CHARGES PLEAS OF GUILTY

Citation: Simpson, Peter Francis v R [2009] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 17 December 2009
Judge(s): Latham J, Fullerton J, Schmidt J (unanimous, Schmidt J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to six offences involving five child victims. The charges included sexual intercourse without consent, two counts of sexual intercourse with a person aged between 10 and 16 years, and three counts of aggravated indecent assault of a person under 16. The offending spanned several years, beginning around 2000, and involved the applicant cultivating trust with a rural family before repeatedly abusing two brothers over an extended period, and later assaulting three further victims.

Acting Judge Woods sentenced the applicant on 12 September 2008, applying a 25 per cent discount for the guilty pleas. The sentences were partially accumulated, producing an overall term of 17 years and 6 months imprisonment with a non-parole period of 13 years. A finding of special circumstance was made under the Crimes (Sentencing Procedure) Act 1999 because of the partial accumulation.

The applicant sought leave to appeal against the severity of the sentences, contending that errors had been made in applying the correct maximum penalties to two of the six counts, and that both the individual sentences and the total sentence were manifestly excessive.

  • Whether the sentencing judge applied the wrong maximum penalties when sentencing on Counts 2 and 3, each charging sexual intercourse with a person aged between 10 and 16 years under s 66C of the Crimes Act 1900.
  • Whether the individual sentences imposed for those counts were excessive in light of the correct statutory maxima.
  • Whether the overall aggregate sentence and non-parole period were manifestly excessive having regard to the full circumstances of the offending.

Decision

The Court of Criminal Appeal identified error on Ground 2: the sentencing judge had applied incorrect maximum penalties to Counts 2 and 3. Count 2, charged under s 66C(1) of the Crimes Act 1900, carried a maximum of 8 years imprisonment, and Count 3 under s 66C(2) carried a maximum of 10 years imprisonment. The original sentences of 7 years and 6 months for each of those counts significantly exceeded the correct maxima, which was a clear legal error requiring intervention.

The Court did not accept that the individual sentences for the remaining counts, or the aggregate sentence as originally structured, were otherwise manifestly excessive given the gravity and persistence of the offending. The applicant had offended against five victims over several years, two of the charges were representative of a wider course of conduct, and the offending involved a deliberate cultivation of parental trust. The applicant had prior convictions of a similar nature and committed some offences while subject to a good behaviour bond. The Court emphasised the significance of specific and general deterrence in the sentencing exercise.

On resentencing Counts 1, 2 and 3, the Court restructured the partially accumulated sentences to produce a total term of 14 years and 6 months imprisonment with a non-parole period of 10 years. The Court found that an aggregate non-parole period below 10 years would not adequately reflect the overall criminality of the six offences.

Orders Made

  • Time for filing the notice of application for leave to appeal was extended.
  • Leave to appeal granted.
  • Appeal upheld in part: sentences on Counts 1, 2 and 3 quashed.
  • In lieu of those sentences, the following were imposed:
  • Count 2: Non-parole period of 2 years commencing 5 June 2010, expiring 4 June 2012; balance of term of 1 year and 9 months, expiring 4 March 2014.
  • Count 3: Non-parole period of 3 years commencing 5 June 2011, expiring 4 June 2014; balance of term of 2 years and 3 months, expiring 4 September 2016.
  • Count 1: Non-parole period of 3 years commencing 5 June 2014, expiring 4 June 2017; balance of term of 4 years and 6 months, expiring 4 December 2021.

Key Takeaways

  • Sentences imposed in excess of the applicable statutory maximum represent legal error that the Court of Criminal Appeal will correct, even where the overall sentence might otherwise be regarded as appropriate.
  • Under s 66C of the Crimes Act 1900, the maximum penalty differs depending on the specific subsection charged: subsection (1) carries 8 years and subsection (2) carries 10 years, and precise identification of the charged provision is critical to correct sentencing.
  • Where multiple offences involve several victims over an extended period, partial accumulation of sentences is required to ensure the total sentence reflects the full criminality of the conduct, consistent with the approach confirmed in Vaovasa v R [2007] NSWCCA 223.
  • Correcting errors on individual counts does not automatically result in a reduction of the total aggregate sentence: the Court of Criminal Appeal restructured the sentences but maintained a substantial non-parole period of 10 years.
  • Prior convictions for similar offending, the commission of offences while subject to a good behaviour bond, and a deliberate pattern of grooming are all factors that weigh heavily in favour of significant sentences, with specific deterrence treated as an important consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61M(1), 66C(1), 66C(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Karl Eedens v R [2009] NSWCCA 254
- R v AJP [2004] NSWCCA 434; (2004) 150 Crim R 575
- R v CDH [2002] NSWCCA 103
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Vaovasa v R [2007] NSWCCA 223; (2007) 174 A Crim R 116