Director of Public Prosecutions v Simmons

[2025] VCC 309

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BAIRNSDALE

CRIMINAL JURISDICTION

CR -23-02053

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM COLIN SIMMONS

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	11 March 2025
CASE MAY BE CITED AS:	DPP v Simmons
MEDIUM NEUTRAL CITATION:	[2025] VCC 309

REASONS FOR SENTENCE

Subject: Criminal law - sentence      

Catchwords:              Plea of guilty to one rolled-up charge of rape – victim former partner – offender apologised to victim immediately and expressed remorse to family members and employer – unusual remorse – criminal history of sexual offence - intellectual disability – illiterate - symptoms of autism and ADHD – profoundly deaf – 40 year old man living with parents – consistently employed as shearer – reasonable prospects for rehabilitation    

Sentence:                2 years imprisonment with one year non-parole period      ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms E. Allan	Sullivan Braham

HER HONOUR: 

1Graeme Colin Simmons, you have pleaded guilty to one charge of rape.  This is a rolled-up charge representing two rapes in the same incident, it attracts a maximum sentence of 25 years' imprisonment.

2I will be sentencing you to prison for two years, and you must serve one year before being eligible for parole.  I will now explain my reasons.

3The offending occurred on 19 March 2024 when you went to visit your former partner, the complainant, who is the mother of your son, then aged two. 

4The previous day you had visited the complainant, and she had explained to you that she was seeing someone else and asked you for the house key.  You were angry and upset and the complainant, called the police.  They attended but you had calmed down and you left.

5You arranged to return the next day to have dinner with her, but you went there in the morning and found the complainant’s male friend there.  You told him to leave, and she told you to leave, which you did soon afterwards.

6You returned for dinner later that day and discussed her male friend, and you were again angry and upset.  Soon after that, while sitting on a couch next to the complainant you tried to kiss and cuddle her, and she asked you to stop.  You pulled her down onto the couch and took off her underwear while she continued to tell you to stop.  You persisted and forced your penis into her vagina without her consent.  You then asked her for anal sex, but she refused.  You then inserted your penis into her vagina from behind and grabbed her hair and pulled it hard, hurting her.  You then ejaculated into her vagina.

7She sat on her knees in shock before you got off the couch, and you asked her if she was okay.  She looked at you with tears in her eyes and said:  'You just raped me.'  You apologised and told her that you loved her.  You said how sorry you were, that you just did not think, and you were angry and upset.  You said:  'You know that's not me.'

8She went to have a shower, taking her phone.  You followed her, apologising, and asking if she was going to call the police.  She sent a message to her friend saying she had been raped.  You continued to apologise, and the complainant  continued to ask you to leave.  She rang her mother to ask her to take her son for the night.  About half an hour later you drove him to her mother's house.

9The complainant also sent her sister a message saying you had raped her.  Her friend arrived and later took her to the police station where she reported the matter.

10Between 20 and 22 March you told your mother and your boss that you had raped the complainant. 

11On 23 March you sent the complainant a message apologising, saying it will not happen again, that you were in a wrong space and not happy.

12On 5 April she participated in a pretext call with you, in which you said you had told your ex-partner and her daughters that you had raped her.

13On 6 May you went to the police station and took part in a recorded interview in which you made admissions and explained that you had been angry about her friend.  You were arrested and then released on bail.

14the complainant provided a victim impact statement dated October 2024, in which she described how she has suffered from the rapes.  She stated that the emotional impacts were severe, reducing her motivation for doing things and even from leaving the house.  She is tired and depressed, hurt and angry.  She lost her job and her car and had to declare bankruptcy.  She has struggled to provide for her children and has been served with an eviction notice because she cannot afford the rent.  She has lost her friends because she does not want to go out, and her children have suffered from this as well.

15Her statement is an important way of assessing the gravity of the offending.  Rape is a serious violation of a person's body and of their sense of personal safety.  The legislature recognises this by providing a maximum sentence of 25 years' imprisonment.

16You were violent in the way you forced the complainant’s compliance, which makes the offending more serious, as well as the fact that there were two instances of it.  You knew that your son was present, which the prosecution submitted, rightly so, was a breach of trust because of your shared parenting of him.  You knew that she wanted to end your relationship.  Furthermore, this was unprotected sex which could have led to pregnancy or disease.

17Other aggravating features which are sometimes present with this crime were not part of this incident, including the fact that the duration was relatively brief.  It was not planned, there was no weapon involved, and the complainant was not physically injured.

18Ms Allan on your behalf submitted that these factors placed the offending in the low to middle range of seriousness, and that was not disputed by the prosecution.  I agree with that assessment.

19There are a number of mitigating factors which indicate the need for some leniency in sentencing you.  You are a 39-year-old man with an intellectual disability, which affects your general functioning.  Reports were provided from Dr Renee Carr, a clinical neuropsychologist, Dr Hannah Dawson, a forensic psychologist, and Dr Debra Smith, a psychologist.

20Dr Smith's report is undated and from the content appears to have been produced in anticipation of the plea in the County Court in 2008, when, as a 24‑year-old, you were placed on a suspended prison term for sexual penetration of a child under 16.  The report is useful in that it confirms your use of alcohol at that time.  Dr Smith expressed the opinion that when you drink you have a very limited capacity to manage yourself or make good decisions.

21His Honour Judge Gucciardo took Dr Smith's report into account when he sentenced you for that offending back in 2008.  His Honour referred to your significant intellectual limitations and the fact that at that time you had succeeded in ceasing drinking alcohol. 

22Although you did return to drinking, it was not a significant factor in the current offending, and you have reduced it once again, this time in the knowledge that it has an impact on the antidepressant medication you have been prescribed.

23Your background is that you grew up on your parents' farm in Woodside, and you have reported a happy homelife during your childhood.  Your mother was here in court to support you, and she was also present when you were interviewed by the police.  You are close to your parents and your two older brothers.

24However, school was difficult for you as you were deaf, and you were bullied because of this.  You described yourself as a slow learner.  You attended high school until Year 11, but you are unable to read and write.

25Since leaving school you have worked consistently and for the last 23 years as a shearer. 

26You receive a disability support pension and are eligible for funding through NDIS.

27You are the father of five children, born to three different mothers, the complainant has described you as a good dad to your two daughters and a very hands-on father to your son.  You continue to have contact with your three eldest daughters, with the two eldest spending five weeks of the school holidays with you on the farm.  It is a matter of great sadness for you that you can no longer have a relationship with your son.

28Dr Carr conducted tests with you which produced a diagnosis of intellectual disability, which has had a major impact on your daily functioning throughout your life.  Dr Carr also identified a likely diagnosis of autism spectrum disorder and ADHD.  Dr Carr considered it likely that you would have limited capacity to understand other people's behaviours and emotions and pick up social cues.

29Dr Dawson generalised this in noting that 'in a person with an intellectual disability' - and here I am quoting from Dr Dawson's report:

'Deficits in self-control, specifically inhibition are common and are associated with impulsive behaviours which can lead to poor decision-making and functioning.'

30Dr Dawson thought it likely that at the time of the offending you were also suffering from a major depressive disorder and generalised anxiety disorder, and that you had dependent personality features leading you to rely too heavily on your romantic partner to support you.  The combination of these factors resulted in you having reduced insight into your own emotional functioning, as well as impaired judgment. 

31The significance of these matters for sentencing is that both general and specific deterrence are of reduced importance in this case in determining an appropriate sentence when the decision in the case of Muldrock v R[1] is applied.

[1] [2011] HCA 29 - Muldrock

32Ms Allan relied on the Muldrock decision in this regard but averted also to the principles in Verdins being enlivened as to general deterrence.

33Mr Moore on behalf of the prosecution queried the link between your mental impairment and your offending, but I am persuaded it is sufficient to follow the court in Muldrock and in Clifton v R[2].

[2] [2004] VSCA 82 - Clifton

34In that case the Court of Appeal held that the offender's intellectual disability impaired his ability to reason as a normal person and reduced his moral culpability, making him less appropriate as a vehicle for general deterrence.

35The other impact of this combination of conditions is that you are likely to be particularly vulnerable in prison because of naivety concerning the custodial environment and your particular personality limitations.  Your deafness and reliance on hearing aids may add to your vulnerability.  In addition to that, it is likely that there will not be appropriate treatment opportunities for you in prison and so any deterioration in your mental state would remain unaddressed.

36Your plea of guilty is valuable to the system of criminal justice because it saves the expense and inconvenience of a trial.  Importantly, it spares the witnesses from having to give evidence and be cross-examined.  For these reasons you are entitled to a discount on the sentence I shall impose.

37I also accept your plea as an indication of remorse and it is clear that your remorse is genuine.  It is unusual for an offender to immediately profess guilt and apologise to the victim and family members as you did.  You even told your employer who observed your distress.  It seems that while you have a superficial understanding of the concept of rape, you knew straight away that you had done the wrong thing.

38You made frank admissions to the police when interviewed and said you were upset and sorry.  These factors add to your prospects for rehabilitation, which, according to Dr Dawson, will depend on the support you receive when released given that there remains a low to moderate risk that you might re-offend.

39Dr Carr strongly recommended that you engage in services to assist in educating you about sexual offences, treatment that she considers is not likely to be available in custody but is critical for you. 

40Ms Allan submitted that your prospects for rehabilitation are not without hope, and that seems a reasonable assessment.  This is despite the multiple court appearances over the years, since 2015, for failing to comply with reporting obligations with reference to your obligations under the Sex Offenders registry.  They appear to reflect the dysfunction caused by your mental impairment, indeed, they are likely to be a demonstration of it, which could likely be avoided in future by specific attention through treatment. 

41All your criminal offending is likely referable to your mental impairment dysfunction, rather than to a pro-criminal or antisocial tendency, and this justifies a particularly lenient approach to sentencing in this case.

42The crime of rape is subject to the standard sentencing regime under the Sentencing Act.  The standard sentence is 10 years, to be taken into account as part of the intuitive synthesis aspect of sentencing which also takes into account the maximum sentence.

43Ms Allan conceded that a sentence of imprisonment was the only option available.  I was referred to a number of sentencing decisions with some aspects similar to this case, and I have considered them. 

44Various authorities including Clark v R, to which I was referred, when dealing with the gravity of rape, have noted that the crime covers a very wide spectrum of acts carried out in a variety of circumstances of different degrees of objective gravity.  The sentence for rape in any given case must turn on an individual consideration of the circumstances and features of the particular offence and of the offender.

45I have carefully considered those matters, and Mr Simmons, I sentence you to prison for two years.

46Section 11A(4)(c) of the Act requires that in a standard sentence case the non-parole period should be fixed at 60 per cent of the head sentence, unless it is in the interests of justice not to do so. 

47It is in the interests of the protection of the community that you receive treatment, including specifically designed sexual offence treatment as recommended by Dr Carr, as soon as possible.  A longer period of custody to be served is not in the interests of justice.

48Accordingly, I order that you serve one year before being eligible for parole.

49If you had pleaded not guilty to this charge, I would have sentenced you to three years' imprisonment with a non-parole period of two years.

50The prosecution seeks an order for the forfeiture of your mobile phone, and I have not heard whether or not that is opposed - Ms Allan?

51MS ALLAN:  Not opposed, Your Honour.

52HER HONOUR:  Not opposed.  I make that order, thank you. 

53You have been in pre-sentence detention for 16 days, not including today, that is by my calculation.  I declare that time is to be reckoned as already served and I shall note it on the court record.

54Are there any other matters?

55MS ALLAN:  No, Your Honour. 

56MR MOORE:  No, Your Honour. 

57HER HONOUR:  Is 16 days agreed to?

58MR MOORE:  Yes, Your Honour. 

59HER HONOUR:  Thank you.  Adjourn the court please.

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