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Court of Criminal Appeal 23 November 2012

Simpson v R

[2012] NSWCCA 246

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES CONSIDERATION OF COMPARABLE CASES SEXUAL OFFENCES SENTENCING RELEVANT FACTORS

Citation: Simpson v R [2012] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 23 November 2012
Judges: Beazley JA (principal judgment); Hall J and S G Campbell J (agreeing)

Background

The applicant pleaded guilty in the District Court at Wollongong to three sexual offences against a child: an aggravated act of indecency, aggravated indecent assault, and sexual intercourse with a person under 10 years of age. All three offences were committed between May 1997 and January 1998, when the complainant was aged eight to nine years. The applicant was a close family friend whom both families treated as a father figure to the complainant.

The offending occurred on Sunday mornings when the applicant's wife had gone to church, leaving the applicant and the complainant alone. The conduct escalated over approximately six months and included exposing the complainant to explicit video material, forcibly placing her hand on his genitals, and performing oral penetration on her. The complainant did not report the offences to police until January 2010, over a decade later.

At sentencing in November 2011, the District Court imposed a total effective sentence of 6 years and 9 months imprisonment with a non-parole period of 3 years and 9 months, applying a 25 per cent discount for early guilty pleas. The applicant sought leave to appeal, arguing the sentences were excessive.

  • Whether the sentencing judge correctly identified and applied the sentencing range applicable at the time the offences were committed (1997 to 1998), rather than contemporary sentencing standards
  • Whether the sentences imposed were manifestly excessive having regard to that historical range
  • Whether the sentencing judge erred by failing to give adequate weight to delay and the applicant's rehabilitation as mitigating factors
  • Whether the sentencing judge correctly applied the totality principle and made appropriate findings of special circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part, quashing and re-imposing the sentence on count 3 (sexual intercourse with a person under 10 contrary to s 66A of the Crimes Act 1900). The Court found that the sentencing judge had erred in identifying the correct sentencing range applicable at the time of the offences. Because sentencing standards for these offences have increased substantially since 1997 and 1998, the applicable range at the time of offending was lower than contemporary benchmarks, and the sentence imposed failed to reflect that historical range.

Beazley JA undertook a detailed examination of comparable cases decided in the relevant period to establish the appropriate range. The Court accepted that, while the offending was serious and involved a gross breach of trust against a young and vulnerable child, the original sentence on count 3 sat outside the range that would have been applicable when the offences occurred. The Court also found that the sentencing judge did not give sufficient weight to delay and the applicant's rehabilitation.

On the question of special circumstances, the Court found that they existed, justifying a longer-than-standard additional term relative to the non-parole period. The Court also considered the totality principle, acknowledging that where multiple sentences are accumulated, the overall sentence must remain proportionate to the total criminality involved. This led to a slight adjustment of the accumulation ordered below.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part
  • Sentence imposed on count 3 quashed and the applicant re-sentenced as follows:
  • Count 1 (s 61O(2)): fixed term of 6 months, 25 May 2011 to 24 November 2011 (unchanged)
  • Count 2 (s 61M(2)): fixed term of 9 months, 25 August 2011 to 24 May 2012 (unchanged)
  • Count 3 (s 66A): non-parole period of 3 years commencing 25 October 2011 and expiring 24 October 2014; additional term of 16 months expiring 24 February 2016
  • First eligible release date: 24 October 2014
  • Total effective sentence: 4 years and 9 months imprisonment
  • Total effective non-parole period: 3 years and 5 months

Key Takeaways

  • Where offences were committed before legislative increases to maximum penalties and before standard non-parole periods were introduced, the sentencing court must identify and apply the sentencing range that prevailed at the time of the offending, not current standards.
  • A careful survey of comparable decided cases from the relevant period is required to establish the applicable historical range, and reliance on cases that do not truly represent that range constitutes a sentencing error.
  • Delay between offending and prosecution, and evidence of rehabilitation in the intervening period, are mitigating factors that must be given genuine weight in the sentencing exercise.
  • The totality principle requires that, where sentences are accumulated, the court assess whether the aggregate is proportionate to the overall criminality, and adjust the degree of accumulation if necessary.
  • Special circumstances justifying a departure from the standard additional term ratio may be found where, among other things, an offender requires an extended period of supervision on parole following a first period of full-time custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O(2), 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Sentencing Act 1989 (NSW)

Key Cases:
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v R [1998] HCA 57; 194 CLR 610
- PH v R [2009] NSWCCA 161
- PWB v R [2011] NSWCCA 84
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
- R v King [2009] NSWCCA 117
- R v MJR [2002] NSWCCA 129
- R v Dodd (1991) 57 A Crim R 349
- R v Moore (1995) 77 A Crim R 577
- R v Boyd (1995) 81 A Crim R 260
- R v H (1994) 74 A Crim R 41
- R v Davis [1999] NSWCCA 15
- R v Maher [2000] NSWCCA 147