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District Court 20 March 2019

R v Simpkins

[2019] NSWDC 75

Sexual offences

Citation: R v Simpkins [2019] NSWDC 75
Court: District Court of New South Wales
Date: 20 March 2019
Judge: Grant DCJ

Background

The offender, an 81-year-old former teacher, appeared for sentence following a special hearing conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW). He had been found unfit to stand trial due to organic brain damage sustained after two strokes, morbid obesity, and significant cognitive impairment. Because he was unfit, the matter proceeded as a special hearing rather than a conventional trial.

The court found, on the limited evidence available under s 22(1)(c) of the Act, that the offender had committed five counts of indecent assault against a male student (referred to as Mr M) during 1971 to 1973. The offending took place at Colo and Gunnedah and involved masturbation to the point of ejaculation. The offender was a lay-teacher who had taken the complainant on school camps and excursions, and had exploited that position of trust.

It was also relevant that the offender had been sentenced in 1995 for separate but similar offences from the same era. He had not reoffended since that time. He suffered from multiple serious medical conditions, including a recently diagnosed malignant kidney tumour, sleep apnoea, cardiac disease, diabetes, and hypertension.

  • Whether a qualified finding of guilt under a special hearing (s 22(1)(c) of the Mental Health (Forensic Provisions) Act 1990) supports the imposition of a custodial limiting term
  • How to assess objective seriousness of historical indecent assault offences committed against a child by a person in a position of trust
  • What weight to give delay, rehabilitation prospects, and the offender's significant physical and cognitive deterioration in fixing an appropriate sentence
  • Whether the sentences for the five counts should be served cumulatively or concurrently, and if so to what degree
  • What ancillary steps were available to the court to protect the offender's health and welfare in custody

Decision

Grant DCJ found that the offending was objectively serious. The offences involved a gross breach of trust by a teacher exploiting his student's naivety, were not brief or minor, and included repeated masturbation to ejaculation and directions to the child to reciprocate. The court applied established principles from cases such as R v Fisher, R v Burchell, and R v Dent, emphasising that child sex offenders in positions of trust warrant significant custodial sentences to achieve general and specific deterrence.

On subjective circumstances, the court acknowledged the offender's extreme frailty, the extent of his organic brain damage, and his multiple serious medical conditions. These factors did not reduce objective seriousness but did bear on the appropriate sentence length and the likely hardship he would experience in custody. The court also gave weight to the very significant delay since the offences (approximately 47 years), noting the mitigatory principle from R v Todd that stale offending, uncertainty endured by the offender, and demonstrated rehabilitation over time all call for moderation of sentence.

The court determined that counts 1 and 2 (arising from the same camp incident) should be concurrent with each other, as should counts 3 and 4 (arising from the same weekend visit). A degree of cumulation was applied between those groups and count 5 (the Gunnedah road trip). This approach reflected the principle from Pearce v R and Mill v R that concurrent sentences should not operate to effectively excuse additional offending, while avoiding disproportionate overall punishment.

An aggregate limiting term of six months' imprisonment was imposed. Because the offender had been found unfit for trial, the court was required under s 24(1)(a) of the Act to refer him to the Mental Health Review Tribunal rather than entering a conventional conviction. The court also made strong practical recommendations to Corrective Services regarding the offender's placement and medical needs.

Orders Made

  • Aggregate limiting term of six months' imprisonment imposed
  • Referral of the offender to the Mental Health Review Tribunal pursuant to s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990
  • Recommendation under s 24(1)(b) of the Act that the offender be transferred to Long Bay Prison Hospital as soon as possible
  • Request that Corrective Services allow the offender to take his sleep apnoea machine and current medications into custody
  • Urgent transcript of sentencing remarks and special hearing findings requested, to be forwarded to the Registrar of the Mental Health Review Tribunal

Key Takeaways

  • A finding under s 22(1)(c) of the Mental Health (Forensic Provisions) Act 1990 constitutes a qualified finding of guilt only and does not amount to a conviction in law; however, it does permit the imposition of a limiting term of imprisonment.
  • Where an offender is found unfit for trial, sentencing must occur under the special hearing regime, and the court must refer the offender to the Mental Health Review Tribunal on imposing a limiting term.
  • Objective seriousness of historical child sex offences is assessed on the nature and circumstances of the conduct itself; the offender's subsequent ill health and unfitness are not relevant to that assessment.
  • Significant delay between offending and sentence carries mitigatory weight, particularly where the offender has demonstrated rehabilitation and has been left in prolonged uncertainty about their fate, as confirmed in R v Todd.
  • An offender's severe medical conditions and likely hardship in custody are relevant to the quantum of sentence, even where those conditions do not reduce the objective gravity of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 22, 24

Cases
- Chahadi v R (2007) 168 A Crim R 41
- Coles v R [2016] NSWCCA 32
- DPP v Khoury [2014] NSWCA 15
- Duncan v R (1983) 9 A Crim R 354
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Blanco [1999] NSWCCA 121
- R v Burchell (1987) 34 A Crim R 148
- R v Crawley 5 A Crim R 451
- R v Dent NSWCCA (unreported) 24 March 1991
- R v Fisher (1989) 40 A Crim R 442
- R v Hathaway [2005] NSWCCA 368
- R v Liang; R v Li (1995) 82 A Crim R 82
- R v Schwabegger (1998) 4 VR 649
- R v Todd (1982) 2 NSWLR 517
- R v Wilson (No 5) [2018] NSWSC 1077
- Sabra v R [2015] NSWCCA 38