AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 17 June 2026

Simons (a pseudonym) v R

[2026] NSWCCA 78

Sexual offences

Citation: Simons (a pseudonym) v R [2026] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 17 June 2026
Judges: Kirk JA, McNaughton J (with whom Kirk JA and McGuire J agreed), McGuire J

Background

The applicant, referred to by the pseudonym Ms Simons, pleaded guilty in the Wollongong District Court to an offence of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The victim was her six-year-old son. The offending occurred in March 2020, when the applicant performed and filmed an act of fellatio on the child at the family home in rural New South Wales, at the request of a man she had met through an open relationship arrangement. The video ran for at least 13 seconds and captured the applicant's face.

The offending came to light in 2023, after the victim disclosed the events to a family friend during school holidays. Police located the video on the applicant's phone through a Cellebrite download. On arrest, the applicant stated she had "done nothing wrong." She was ultimately charged with the primary offence as well as related child abuse material offences, which were dealt with on a Form 1 (meaning they were taken into account at sentencing without separate conviction).

The sentencing judge, Haesler SC DCJ, imposed a head sentence of 6 years imprisonment with a non-parole period of 3 years, commencing 23 October 2024. The applicant then sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in assessing moral culpability by misconstruing statements the applicant made to her then-husband and a friend about the wrongfulness of her conduct.
  • Whether the applicant was denied procedural fairness in relation to the finding about her awareness that her actions were wrong.
  • Whether the sentencing judge failed to consider the applicant's capacity to reason and her ability to control her conduct.
  • Whether the sentence of 6 years imprisonment with a 3-year non-parole period was manifestly excessive.

Decision

Ground 1(a): Moral culpability

McNaughton J (with Kirk JA and McGuire J agreeing) found that the sentencing judge did not err in his assessment of moral culpability. It was well open on the evidence to infer that the applicant was fully aware her actions were wrong at the time of the offending. This inference was supported by her own words to her husband ("I have done something wrong") and to her friend shortly afterward, as well as her initial denial upon arrest. The court applied the principle from House v The King (1936) that appellate interference with a sentencing discretion requires demonstrated error, and found none here.

Ground 1(b): Procedural fairness

The court rejected the procedural fairness argument. The material before the sentencing judge was such that it was fair to conclude the applicant's counsel had made a forensic decision not to address the wrongfulness issue at sentence. No procedural unfairness was established.

Ground 1(c): Capacity to reason and control conduct

The court found the sentencing judge had properly considered the available evidence on this point. There was no evidence before the court that the applicant lacked the capacity to control her actions, and the sentencing judge was not required to make a finding in the applicant's favour on a matter unsupported by evidence.

Ground 2: Manifest excess

The court described the offending as "the most serious and extreme abuse of power and breach of trust by a mother against her six-year-old son in his home." Taking into account the maximum penalty of life imprisonment, the standard non-parole period of 15 years, the additional Form 1 offences, the objective gravity of the conduct, and the significance of general deterrence and denunciation, the Court of Criminal Appeal held the sentence was well within the sentencing judge's discretion. Comparison with comparable sentences in cases such as PS v R [2015] NSWCCA 20, EG v R [2015] NSWCCA 21, and others confirmed the sentence was not unreasonable or plainly unjust. The court also noted the sentencing judge had made a favourable finding of special circumstances, varying the non-parole period ratio from 75% to 50%.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's inference that the applicant knew her conduct was wrong at the time, where her own contemporaneous statements to her husband and a friend expressly acknowledged wrongdoing.
  • A failure by counsel to address a particular issue at sentence can, in appropriate circumstances, be treated as a forensic decision, precluding a later procedural fairness complaint on appeal.
  • Where no evidence supports a contention that an offender lacked the capacity to control their conduct, a sentencing judge is not required to make findings in the offender's favour on that issue.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentence of 6 years with a 3-year non-parole period for a s 66A(1) offence involving a six-year-old victim, recorded child abuse material offences on a Form 1, and no prior relevant history, fell comfortably within the permissible sentencing range.
  • The court reiterated that children are particularly vulnerable in the care of a parent, and that offending involving a gross breach of parental trust carries significant weight in the assessment of objective seriousness.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 66A, 91G, 91H
  • Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases