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Court of Criminal Appeal 20 December 2013

Simon v R

[2013] NSWCCA 328

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL ASSAULT AND OTHER OFFENCES EXTENSION REFUSED CRIMINAL LAW SENTENCE APPEAL SEXUAL ASSAULT AND OTHER OFFENCES

Citation: Simon v R [2013] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judges: Macfarlan JA, Latham J, R A Hulme J

Background

The applicant was convicted in the District Court in December 2010 on 19 criminal charges, including 12 counts of sexual intercourse without consent in circumstances of aggravation. The Crown case was that he followed a 22-year-old woman from her workplace in Darlinghurst, gained entry to her apartment at Hurlstone Park without her knowledge, and subjected her to repeated sexual assaults over several hours while armed with a knife and making explicit threats to kill her. Before leaving, he tied her up, took her credit card, and threatened her family if she contacted police. CCTV footage placed the applicant behind the complainant from Museum Railway Station to her home.

The applicant's defence at trial was that the sexual intercourse was consensual, having arisen from a conversation on the train. The jury rejected that account and returned guilty verdicts on all counts. The trial judge sentenced the applicant to a total of 22 years imprisonment with a non-parole period of 17 years.

The applicant subsequently sought extensions of time to appeal both his convictions and his sentence. Both the Notice of Intention to Appeal and the Notice of Appeal were filed well outside the prescribed time limits.

  • Whether an extension of time should be granted to appeal the convictions, given the significant delay and the prospects of success on those grounds
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing judge erred in failing to treat the multiple sexual assaults as a single episode of criminality when accumulating sentences
  • Whether special circumstances existed, by reason of the effect of accumulation, that should have produced a different non-parole period
  • Whether the overall sentence was manifestly excessive

Decision

Conviction appeal: extension of time refused. The Court applied the principle of finality in criminal proceedings. The conviction appeal was filed grossly out of time: the Notice of Intention to Appeal was lodged well beyond the 28-day limit, and the formal Notice of Appeal did not follow until approximately April 2013. The Court found no sufficient prospects of success to warrant granting the extension. All three judges agreed independently that the verdicts were inevitable and entirely appropriate on the evidence. Latham J noted that trial counsel had conducted a vigorous and legitimate defence in the face of formidable evidence, and that the conviction appeal amounted to a review of the trial transcript divorced from context.

Objective seriousness: no error found. The sentencing judge's characterisation of the offending as falling "well above the mid-range and up towards the high range of objective seriousness" was upheld. The sustained nature of the assaults, the use of a knife, the explicit threats to kill, and the calculated manner of the offending all supported that assessment.

Totality and accumulation: partial error established. The Court accepted that the sentencing judge had not given adequate weight to the principle of totality when accumulating sentences for the sexual assault counts. While the offences were not a single episode in any simple sense, the overall effect of the accumulation produced a non-parole period that required adjustment. The sentences imposed on Counts 13 and 15 were quashed and replaced with revised terms to give effect to a 12-month reduction in the aggregate non-parole period.

Special circumstances and manifest excess: No broader special circumstances finding was warranted. The sentence, as adjusted, was not manifestly excessive given the extreme gravity of the offending.

Orders Made

  • Application for extension of time to appeal against conviction: refused
  • Application for extension of time to appeal against sentence: granted
  • Application for leave to appeal against sentence: granted
  • Appeal against sentence: allowed in part
  • Sentences on Counts 13 and 15 quashed and replaced with a non-parole period of 12 years 6 months commencing 12 November 2015 and expiring 11 May 2028, with a balance of term of 5 years 6 months expiring 11 May 2033
  • All other sentences confirmed
  • Total sentence to expire 11 November 2033; earliest parole eligibility 11 May 2028
  • Appeal against sentence otherwise dismissed

Key Takeaways

  • An extension of time to appeal a conviction will be refused where the delay is substantial and the prospects of success on the grounds advanced are insufficient, regardless of the gravity of the underlying offending.
  • In dismissing the conviction grounds, the Court of Criminal Appeal emphasised that a challenge constructed by isolating evidence and directions from their trial context is unlikely to establish appellable error.
  • Where accumulation of sentences produces an aggregate non-parole period that inadequately reflects the totality principle, the appellate court may intervene to reduce that period, even where the individual sentences and the overall head sentence are otherwise unimpeachable.
  • Objective seriousness of sexual assault offences is assessed by reference to the full combination of aggravating features: the use of a weapon, the duration and multiplicity of assaults, the level of threats, and the calculated nature of the conduct.
  • The principle of finality in criminal proceedings carries significant weight when courts assess whether to grant out-of-time extensions under the Criminal Appeal Act 1912 and the Criminal Appeal Rules.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 10(1)(a), s 10(1)(b)
- Criminal Appeal Rules (NSW), rr 3A, 3B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
- House v The King [1936] HCA 40; 55 CLR 499
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022
- Munda v The Queen [2013] HCA 38; 87 ALJR 1035
- BCM v The Queen [2013] HCA 48
- Green v The Queen [1971] HCA 55; 126 CLR 28
- Ibbs v The Queen [1987] HCA 46; 163 CLR 447
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Evans v The Queen [2007] HCA 59; 235 CLR 521
- AD v R [2005] NSWCCA 208
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- Darwiche v R [2011] NSWCCA 62
- Barrett v R [2011] NSWCCA 213
- Etchell v R [2010] NSWCCA 262
- Abdul v R [2013] NSWCCA 247
- Golossian v R [2013] NSWCCA 311