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Court of Criminal Appeal 15 February 2019

Simmons v R

[2019] NSWCCA 20

Sexual offences
CRIMINAL LAW SENTENCE

Citation: Simmons v R [2019] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 15 February 2019
Judge(s): Hulme J, Wright J, Fagan J

Background

The applicant was 18 years old when he committed six counts of aggravated sexual assault against a 22-year-old stranger in Bathurst on the evening of 1 August 2015. The victim was walking home from work when the applicant approached her from behind, dragged her to a riverbank, and subjected her to a prolonged attack lasting over an hour. Two further offences were taken into account on a Form 1 (a document that allows a court to consider additional charges without recording a separate conviction for each).

The applicant pleaded guilty to all charges in the Local Court. Each offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years under s 61J of the Crimes Act 1900 (NSW). The circumstances of aggravation, present in each count, were the infliction of actual bodily harm on the victim and the deprivation of her liberty.

In the District Court, the sentencing judge imposed an aggregate sentence of 18 years with a non-parole period of 12 years. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in his approach to the applicant's subjective circumstances (personal background, age, and other mitigating factors).
  • Whether the aggregate sentence of 18 years with a 12-year non-parole period was manifestly excessive, having regard to the degree of accumulation applied across the individual indicative sentences.

Decision

On the first ground, the Court found no error in the sentencing judge's treatment of the applicant's subjective circumstances. The Court did not identify any specific error in how those matters were weighed or applied at first instance.

On the second ground, the Court accepted that the individual indicative sentences (ranging from 7 years 6 months to 9 years per count) were each appropriate and not excessive. The difficulty arose from the way those sentences were accumulated to produce the aggregate. While the offences were all committed in a single episode against one victim, the Court noted they involved a wide variety of brutal acts, including what it characterised as calculated degradation, and their sequential commission over more than an hour compounded the overall gravity considerably.

Despite acknowledging the exceptional seriousness of the offending, the Court concluded that the implicit accumulation built into the aggregate of 18 years had produced a result that was manifestly excessive. The correct approach to aggregation required that the total sentence reflect the full criminality of the episode without crossing into a figure that is disproportionate to the overall conduct. The Court determined that the appropriate aggregate was 15 years with a non-parole period of 10 years.

The Court was careful to note that this reduction did not diminish its assessment of the gravity of the offending. It described the revised sentence as an "appropriately strong penalty, apt to serve the purposes of sentencing in this case," including denunciation and deterrence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • The District Court sentence of 18 years (non-parole period of 12 years) imposed on 26 April 2017 was quashed.
  • In substitution, the applicant was sentenced to a non-parole period of 10 years commencing 2 August 2015 and expiring 1 August 2025, with a balance of term of 5 years commencing 2 August 2025 and expiring 1 August 2030.
  • The applicant will be eligible for release on parole from 1 August 2025.

Key Takeaways

  • The Court of Criminal Appeal confirmed that aggregate sentencing must reflect the totality of criminal conduct without producing disproportionate accumulation, even where each individual indicative sentence is itself appropriate.
  • Where multiple serious offences are committed in a single episode against one victim, the character and variety of the individual acts remain relevant to the degree of accumulation justified in the aggregate.
  • No error was established in the sentencing judge's treatment of the applicant's subjective circumstances; the appeal succeeded solely on the manifest excess ground.
  • A sentence can be manifestly excessive even where none of the component indicative sentences are independently excessive, if the method of accumulation produces an unjustified total.
  • In reducing the aggregate from 18 years to 15 years, the Court emphasised that the revised sentence still served the purposes of denunciation and deterrence appropriate to the gravity of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)

Cases
- BP v R [2010] NSWCCA 159
- Bullock v R [2015] NSWCCA 131
- Clinton v R [2014] NSWCCA 320
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hughes v R [2018] NSWCCA 2
- KT v R [2008] NSWCCA 51
- R v AEM Snr & Ors [2002] NSWCCA 58
- R v Baker [2000] NSWCCA 85
- Tepania v R [2018] NSWCCA 247
- Tuite v R [2018] NSWCCA 175
- Yang v R [2012] NSWCCA 49
- Zreika v R [2012] NSWCCA 44