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District Court 2 April 2025

R v Simmonds

[2025] NSWDC 217

Sexual offencesDrugs

Citation: R v Simmonds [2025] NSWDC 217
Court: District Court of New South Wales
Date: 2 April 2025
Judge: Haesler SC DCJ

Background

The offender was charged with 11 serious offences arising from a sexual encounter with a 13-year-old girl on 30 October 2022. The events occurred at the offender's home, and much of what took place was captured on hidden cameras installed in the bedroom. The child was unaware she was being recorded.

The matter proceeded to trial at Wollongong District Court in February 2025. The offender pleaded guilty at the outset to one count of supplying cannabis. He contested the remaining charges, admitting most acts of sexual intercourse but denying a penile/anal intercourse count, the supply of gamma hydroxybutyrate (GBL), and the specific aggravating element that he had taken advantage of the child's intoxicated state during the sexual intercourse offences.

The jury acquitted the offender of several counts, including the anal intercourse count, the GBL supply count, and the sexual intercourse counts carrying the specific aggravating circumstance of exploiting the child's drug-impaired state. He was convicted on the remaining counts, and the sentencing judgment dealt with those convictions together with an assessment of the acquittals' effect on the sentencing exercise.

  • What weight, if any, could be given at sentencing to conduct underlying counts on which the offender was acquitted?
  • How should the jury's verdicts be interpreted, including the apparent distinction between the original counts (with the drug-exploitation aggravating element) and the alternative counts (without it)?
  • How should the late guilty plea to Count 1 be discounted, and how should that interact with instinctive synthesis sentencing?
  • What aggregate sentence was appropriate across the eight counts for sentence, having regard to objective seriousness, subjective circumstances, and relevant sentencing principles?
  • Whether the offender fell within the High Risk Offender classification under the Crimes (High Risk Offenders) Act 2006 (NSW)?

Decision

Giving full effect to the acquittals

His Honour emphasised that the offender was entitled to the full benefit of all acquittals. The sentencing court was not permitted to treat the acquitted conduct as established or to use it as a basis for increasing penalty. The judge assessed the jury's reasoning as being closely tied to the objective video and forensic evidence: where the recording did not clearly show the child as obviously drug-impaired during the sexual intercourse, the jury was unwilling to find that the offender exploited that impairment, resulting in acquittals on the aggravated counts and conviction only on the alternative, non-aggravated sexual intercourse counts.

Count 11 and production of child abuse material

The child was undoubtedly under the influence of drugs when she was covertly recorded. His Honour found that the child's intoxication was precisely what the offender exploited to produce child abuse material, because her impaired state rendered her unaware of the recording. This distinguished Count 11 from more typical scenarios where a child is induced to participate in production through intoxication. The conviction carried the aggravating element of exploiting the child's drug-affected state, and the court found that element established on the evidence.

Drug supply offences

The video footage showed the child using a glass pipe and a bong, consistent with smoking methylamphetamine and cannabis respectively. Drug analysts confirmed both substances in the child's system. The acquittal on the GBL supply count was consistent with the jury's reliance on objective evidence: no GBL was detected and there was no video footage of the child consuming that substance.

Sentencing methodology and the plea discount

The late guilty plea to Count 1 attracted a 5% discount, which his Honour applied arithmetically as required following Sampson v R [2025] NSWCCA 25, while noting that the approach appeared to conflict with earlier Court of Criminal Appeal authority and that specifying sentences in fractions of a month remained poor practice in his view. The ultimate aggregate sentence was reached through instinctive synthesis in accordance with Markarian v The Queen (2005) 228 CLR 357, with some allowance made for the offender's subjective circumstances under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including drug use, a voyeuristic disorder diagnosis, and health issues.

Orders Made

  • Count 1 (supply cannabis, guilty plea): 3 months and 18 days imprisonment (including 5% plea discount).
  • Count 2 (supply methylamphetamine to person under 16): 1 year imprisonment.
  • Alternative Counts 4, 6, 7, 8, 9 and 10 (sexual intercourse with child aged 10 to 14): 4 years and 6 months imprisonment each, with a non-parole period of 2 years and 9 months.
  • Count 11 (use child under 14 to produce child abuse material, with aggravating drug element): 2 years and 6 months imprisonment.
  • Aggregate sentence: 9 years imprisonment.
  • Aggregate non-parole period: 5 years and 6 months, commencing 29 May 2024 (with 7 days remand not credited).
  • Eligible for parole consideration: 28 November 2029.
  • Parole period of 3 years and 6 months commencing 29 November 2029; sentence to be completed 28 May 2033.
  • The offender was warned that his convictions attract classification as a High Risk Offender under s 5 of the Crimes (High Risk Offenders) Act 2006 (NSW), with the possibility of further conditions or continued detention if he remains assessed as a community risk at the conclusion of his non-parole period or sentence.

Key Takeaways

  • A sentencing court must give an offender the full benefit of jury acquittals and cannot treat the underlying conduct as established for the purpose of penalty, even where the evidence of that conduct is compelling.
  • The District Court's analysis of the jury's reasoning illustrates how acquittals on aggravated counts and convictions on alternative counts can be reconciled where objective evidence (such as video recordings and expert certificates) supports one finding but not another.
  • Under Sampson v R [2025] NSWCCA 25, sentencing judges are required to apply the arithmetically precise plea discount mandated by s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where this produces a result expressed in fractional months, though the ultimate aggregate sentence is still reached by instinctive synthesis.
  • Convictions for child sexual offences and production of child abuse material can trigger classification as a High Risk Offender under the Crimes (High Risk Offenders) Act 2006 (NSW), potentially exposing an offender to supervision or detention beyond the conclusion of the sentence.
  • Covert recording of a child during sexual activity, where the child's drug-affected state prevented awareness of the recording, satisfied the aggravating element in the child abuse material production offence under s 91G(3) of the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 66C(1), 91G(3)
  • Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(1A), 33A
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25D
  • Crimes (High Risk Offenders) Act 2006 (NSW), s 5
  • Children (Criminal Proceedings) Act 1987 (NSW)

Cases

  • Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
  • Sampson v R [2025] NSWCCA 25
  • Akkawi v R [2012] NSWCCA 11
  • Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
  • Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
  • Hoare v The Queen (1989) 167 CLR 348
  • Ryan v The Queen [2001] HCA 21; (2001)