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Court of Criminal Appeal 4 March 2014

Simpson v R

[2014] NSWCCA 23

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Simpson v R [2014] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 4 March 2014
Judge(s): Hoeben CJ at CL, Adams J, R A Hulme J

Background

The applicant pleaded guilty on the first day of trial to assault occasioning actual bodily harm and sexual intercourse without consent, arising from a violent incident involving his domestic partner. On the night in question, he subjected the complainant to a savage physical assault, fracturing her left cheekbone and eye socket, biting her nose, and threatening to kill her. He also forced his fingers into the complainant's vagina on two separate occasions over the course of an hour, each time sniffing and wiping his fingers on her face while making degrading comments.

The applicant was sentenced to a fixed term of 18 months for the assault and, for the sexual intercourse offence (with a second such offence taken into account on a Form 1), a non-parole period of 5 years with a balance of term of 2 years and 6 months. The total effective sentence carried a non-parole period of 6 years.

The applicant sought leave to appeal against the sentence for the sexual intercourse count on the sole ground that it was manifestly excessive.

  • Whether the sentence imposed for the sexual intercourse without consent offence was manifestly excessive, in the sense of being unreasonable or plainly unjust.
  • Whether the sentencing judge gave adequate weight to the nature of the offending, including that the acts were of short duration and involved digital rather than penile penetration.
  • Whether sentencing statistics from comparable cases demonstrated that the sentence was outside an acceptable range.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence had not been shown to be manifestly excessive. Hoeben CJ at CL held that the sentencing judge had correctly characterised the objective seriousness of the offending. The acts were calculated to degrade, demean, and dehumanise the complainant, and were driven not by sexual gratification but by a desire to dominate and inflict humiliation. These features placed the offending at the higher end of seriousness for this category.

The Court rejected the submission that the relatively short duration of the acts or the fact that penetration was digital rather than penile reduced the sentence. The sentencing judge had appropriately found that the humiliation endured by the complainant extended well beyond the acts themselves, and the method of penetration was not, on these facts, a mitigating circumstance.

On the question of sentencing statistics, the Court applied the principles from Barbaro v The Queen and Muldrock v The Queen, cautioning that statistical ranges do not set the outer bounds of permissible discretion. Consistency of sentencing means consistency in applying legal principles, not numerical equivalence. Given the particular violence, degradation, and domestic context of this case, the Court found the statistics advanced by the applicant were of little assistance.

The Court also emphasised that the domestic relationship context gave particular weight to both specific and general deterrence. The applicant's prior criminal history, including convictions for violence and domestic violence, further diminished his claim to leniency.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence will only be set aside as manifestly excessive if it is "unreasonable or plainly unjust," a high threshold that requires more than a difference of opinion about the appropriate penalty.
  • Sexual intercourse without consent driven by a desire to dominate and humiliate, rather than sexual gratification, does not attract a reduced assessment of objective seriousness on that basis alone.
  • The Court reaffirmed, following Barbaro and Muldrock, that sentencing statistics and reported ranges act as a yardstick for consistency, not as fixed outer limits on the sentencing discretion.
  • Where sexual offending occurs in a domestic relationship context and involves significant physical violence, the sentencing court may properly assign particular weight to both specific and general deterrence.
  • No error was established in the sentencing judge's refusal to treat digital penetration or short duration as mitigating factors, where the totality of the surrounding conduct was calculated to degrade and dehumanise the victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61I
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Barbaro v The Queen; Zirillo v The Queen [2014] HCA 2
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Doe v R [2013] NSWCCA 248
- GWM v R [2012] NSWCCA 240
- MH v Regina [2011] NSWCCA 230
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Kentwell [2013] NSWCCA 266
- R v Stewart [2012] NSWCCA 183