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District Court 25 October 2024

R v Simons (a pseudonym)

[2025] NSWDC 4

Sexual offences

Citation: R v Simons (a pseudonym) [2025] NSWDC 4
Court: District Court of New South Wales
Date: 25 October 2024
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym "Margorie Simons," was born in 1975 and is the mother of the victim, a boy who was six years old at the time of the offence. In March 2020, at the family home in country New South Wales, the offender performed a sexual act on her son and recorded it on video. She did so at the request of a man she had been involved with during an "open relationship" arrangement with her husband.

The recording came to light through a combination of disclosures. The child mentioned to a family friend that "something yucky happened," and separately, a sibling had seen material on the offender's phone. Police obtained the phone through an unrelated inquiry, and a forensic download of the device in 2023 confirmed the video. The offender was arrested in September 2023 and initially denied any wrongdoing.

The offender pleaded guilty in the Local Court to one count of sexual intercourse with a child under 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). Two additional offences, using a child under 14 to make child abuse material and possessing child abuse material, were placed on a Form 1 to be taken into account on sentence.

  • What was the appropriate sentence for a single offence of sexual intercourse with a child under 10, where the maximum penalty is life imprisonment and a standard non-parole period of 15 years applies?
  • How should the two Form 1 offences (making and possessing child abuse material) affect the sentence for the principal offence, without double counting?
  • What weight should be given to mitigating factors including the guilty plea, good character, remorse, mental illness (Major Depressive Disorder), alcohol addiction, and prospects of rehabilitation?
  • Were there special circumstances justifying a non-parole period that does not conform to the standard statutory ratio?

Decision

Haesler SC DCJ identified the offending as objectively serious, noting the absolute prohibition on any sexual activity with a child and the heightened vulnerability of the victim as a young child assaulted by his own mother. The act was deliberate, recorded for the purpose of being sent to a third party, and committed with full awareness of the child. The court characterised the motive, impressing a lover, as base.

On the Form 1 matters, the court was careful to avoid double counting. The offence of using the child to make the video was treated as intrinsic to the objective seriousness of the principal offence and could not be separated from it. However, the separate possession of the recording until 2021, during which time it was accessible to others and likely viewed by the third party, warranted a modest upward adjustment to reflect the need for personal deterrence and retribution.

The court gave the offender a 25 percent discount for her early guilty plea, recognising its utilitarian value and the fact that it spared the child from further investigative processes. Additional mitigating factors weighed in the offender's favour: prior good character, no criminal history, genuine remorse, a diagnosis of Major Depressive Disorder and alcohol addiction, evidence of rehabilitation efforts, and expert opinion that she was unlikely to re-offend. The court acknowledged that custody would bear particularly heavily on her given her mental health conditions.

Applying the principle of instinctive synthesis, the court balanced the gravity of the offence and the need for general deterrence against the substantial mitigating factors. It found special circumstances justifying a non-parole period that departs from the standard ratio, reflecting the offender's rehabilitation needs and the particular hardship of custody on someone with her conditions. The resulting sentence was six years' imprisonment with a non-parole period of three years.

Orders Made

  • The offender is sentenced to 6 years' imprisonment, commencing 23 October 2024 and expiring 22 October 2030.
  • The non-parole period is 3 years, dating from 23 October 2024; the offender is eligible for consideration for parole release on 22 October 2027.
  • The balance of sentence of 3 years runs from 23 October 2027 to 22 October 2030.
  • Release to parole is subject to determination by the State Parole Authority.
  • The offender is classified as a High-Risk Sex Offender and was warned that non-cooperation with authorities or rehabilitation programs may affect parole and post-sentence conditions.
  • Reports from Dr Fritchley, Dr Sidhu, and Ms Ragusa, together with the offender's medical notes, are to be forwarded to Community Corrections with the warrant.

Key Takeaways

  • The District Court confirmed that every act of sexual interference with a child is treated as serious, with the maximum penalty of life imprisonment and a 15-year standard non-parole period under s 66A(1) of the Crimes Act 1900 serving as important guides to sentencing discretion.
  • Where Form 1 offences are factually inseparable from the principal offence, a court must avoid double counting; only conduct that is genuinely additional, such as the continued possession of abuse material, may justify a modest upward adjustment to the head sentence.
  • A 25 percent discount for a guilty plea entered at the Local Court stage reflects both the utilitarian value of the plea and, in child sex offence cases, the additional benefit of sparing the child further involvement in proceedings.
  • Substantial mitigating factors, including good character, genuine remorse, mental illness, and strong rehabilitation prospects, may influence both the length of sentence and the finding of special circumstances affecting the non-parole period, but cannot displace proportionality to the gravity of the offence.
  • Sentencing courts applying instinctive synthesis must synthesise all aggravating and mitigating factors into a single evaluative judgment, rather than mechanically adjusting from a starting point, as affirmed by reference to Markarian v The Queen (2005) 228 CLR 357 and Weininger v The Queen (2003) 212 CLR 629.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 91G(1), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
- R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 38
- Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- JP v R [2015] NSWCCA 267
- Owen v R [2022] NSWCCA 214
- Nasrallah v R [2021] NSWCCA 207
- Merkel v R [2019] NSWCCA 212
- Daetz v R (2003) 139 A Crim R 398
- R v PGM [2008] NSWCCA 172
- R v Allpass (1993) 72 A Crim R 561
- *R v