Kathy Simmons (a Pseudonym)[1] v The Queen

[2015] VSCA 339

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0218

KATHY SIMMONS (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2015
DATE OF JUDGMENT:	9 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 339
JUDGMENT APPEALED FROM:	DPP v [Simmons] (Unreported, County Court of Victoria, Judge Murphy, 1 August 2014)

---

CRIMINAL LAW – Sentence – Application for leave to appeal – Fresh evidence – Applicant sentenced to 3 years’ imprisonment with a non-parole period of 18 months for sexual offending on a 15 year old – Applicant diagnosed with cancer after sentence – Application granted – Appeal allowed – Applicant re-sentenced to 2 years and 6 months’ imprisonment with a non-parole period of 15 months.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass	Victorian Legal Aid
For the Crown	Mr G J C Silbert QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA:

1. Following a trial in the County Court, the applicant was found guilty by a jury of sexual penetration of a child under 16, under care supervision or authority[2] (charge 1) and indecent act with a child under 16[3] (charge 2).[4]

   [2]Crimes Act 1958, s 45(2)(b). The maximum penalty is imprisonment for 15 years.

   [3]Crimes Act 1958, s 47(1). The maximum penalty is imprisonment for 10 years.

   [4]The applicant’s husband was her co-accused.  He was found unfit to be tried pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  At a special hearing he was found to have committed the offences out of the same incidents founding the applicant’s convictions.  On 1 August 2014, he was placed on a community based non-custodial supervision order.

1. On 1 August 2014, the judge sentenced the applicant to be imprisoned for two years and six months on charge 1, and for 18 months on charge 2.  Six months of the sentence on charge 2 was ordered to be served cumulatively with the sentence on charge 1, leading to a total effective sentence of three years’ imprisonment, upon which a non-parole period of 18 months was fixed.[5]

   [5]Orders were also made for a forensic sample under s 464ZF of the Crimes Act 1958, and for 15 years’ registration under the Sex Offenders Registration Act 2004.

1. The applicant seeks leave to appeal on the sole ground that she ‘should be resentenced by this Court in light of fresh evidence that she is now suffering from advanced cervical cancer (stage 2B) and that the disease was likely to have been present but undetected at the time of sentence’.

1. It is conceded by the respondent — properly, in our view — that the evidence that the applicant is now suffering from advanced cervical cancer, and that this disease was likely to have been present (but undetected) at the time of sentence, is fresh evidence (although originally it was not conceded that a different sentence should be imposed).  Thus, the question for the court is whether a different sentence should be substituted so as to avoid a miscarriage of justice.[6]  In our opinion it should.

   [6]R v Nguyen [2006] VSCA 184, [36] (Redlich JA).

1. We need only provide a brief summary of the offending.  The victim — a 15 year old girl — was a friend of the applicant’s children.  She was a frequent visitor to the applicant’s home, and referred to the applicant and her husband as ‘Mum’ and ‘Dad’.  One evening in December 2010, when the victim was staying at the applicant’s home, she was in bed when the applicant and her husband entered the room and her pyjama bottoms were pulled down.  The applicant pinned the victim down on the bed while her husband placed his fingers in the victim’s vagina (charge 1).  Later that evening, the applicant’s husband took the victim into the master bedroom, where the applicant was on the bed masturbating with her legs open.  The applicant asked the victim whether she played with herself (charge 2).

1. The applicant, born 5 February 1972, is aged 43 years.  She is the primary carer for her husband who, after the offending, suffered two neurological incidents which left him unable to speak or properly care for himself.  Her three children are also in her care.  As a child, the applicant had been sexually abused by her father, and had, as the judge described it, ‘a pretty tough upbringing’.

1. Medical records reveal that following her imprisonment, in January 2015 the applicant began experiencing irregular and excessive uterine bleeding.  On 7 May 2015, a pelvic ultrasound detected abnormalities.  Several weeks later, on 26 June 2015, following a biopsy conducted at the Royal Women’s Hospital, the applicant was diagnosed with advanced stage 2B squamous cell cancer of the uterine cervix.  Additional investigations through MRI and PET CT scans detected cancer in her ‘left pelvic, and right and left common iliac lymph nodes’.  She was referred to the Peter MacCallum Cancer Centre on 14 July 2015.

1. Records also demonstrate that on 23 July 2015 at about 3.00am, the applicant experienced intense abdominal pain and vomiting and sought help from prison officers.  Thereafter, on 2, 7 and 21 August 2015, the applicant was attended to at night by a nurse, after she experienced severe abdominal pain, nausea and vomiting, leading to further pain and anti‐nausea medication being prescribed.

1. On 12 August 2015, the applicant was seen by a treating psychologist, and her cancer diagnosis was discussed.  Much of the session was given over to discussing various coping mechanisms to alleviate the applicant’s anxiety flowing from her cancer diagnosis and upcoming treatment.  Significantly, on 19 August 2015 the applicant was too unwell to attend a second session with the psychologist.

1. The applicant commenced weekly chemotherapy on 1 September 2015, accompanied by daily radiotherapy for a period of five weeks.  In a report dated 8 October 2015, a Senior Consultant Radiation Oncologist from the Peter MacCallum Cancer Centre stated that the applicant has undergone ‘high dose rate cervix cancer brachytherapy’, which involves radiation being delivered from a tiny source implanted directly into, or next to the tumour.  There has only been a partial response to this treatment.  Further, as a result of the medical treatment that she has received, the applicant has suffered diarrhoea and nausea, together with persistent tinnitus.  These symptoms are being controlled by medication.  The oncologist anticipates that future treatment will include the active management of the after‐effects of radiation therapy; hormone replacement therapy to manage radiation‐induced menopause; and management of possible bone fractures in the pelvis (with the associated need for pain medication for a three month period).  Should there be a relapse, depending on the site and nature of the relapse, treatment might include exenteration surgery (removal of all organs from the pelvic cavity), a further extended course of chemo‐radiotherapy, palliative chemotherapy or palliative care.

1. The oncologist reported that the applicant’s prognosis depends on the response to the therapy, together with the chance the disease has spread (which is not currently detectable or preventable).  If left untreated, the applicant’s condition ‘is uniformly fatal’ within three months to a year.  The applicant’s outcome will be more predictable after a Positron Emission Tomography scan is performed six months after the completion of treatment.  The expectation of being disease free two years after treatment is sixty per cent.

1. There is little doubt that the applicant had cancer when she was sentenced.  The oncologist, in a further report dated 13 November 2015, stated that cervical cancer usually evolves and progresses undetected over a period of several years if the patient does not receive treatment.  Given the nature of the applicant’s cancer, it is more likely than not that the disease was present for a considerable period before being diagnosed (and was present at the time of sentence).

1. Moreover, we have little doubt that, had the sentencing judge been aware of the applicant’s disease and its effects, he would significantly have ameliorated the sentence that he imposed.  It may readily be inferred that the abdominal pain, nausea, vomiting, diarrhoea, tinnitus and anxiety that the applicant has suffered (and, to an extent, continues to suffer) must have made the circumstances of her incarceration far more burdensome than for someone who is disease and symptom free.  Plainly, the applicant’s condition warrants the extension of mercy.[7]

   [7]R v Miceli [1998] 4 VR 588, 592 (Tadgell JA), 594 (Charles JA); R v Osenkowski (1982) 30 SASR 212, 212–13 (King CJ);  Ramezanian v R (2013) 37 VR 92, 97 [22] (Harper and Priest JJA). See also Adams v R [2011] VSCA 77, [70] (Nettle and Redlich JJA, and Kyrou AJA).

1. The applicant’s offending was undoubtedly serious, and warranted a significant period of imprisonment.  In light of the matters that we have referred to, however, we would now impose lesser sentences upon her.  We would sentence her to be imprisoned for two years on charge 1, and for 12 months on charge 2.  We would order that six months on the sentence on charge 2 be served cumulatively with the sentence on charge 1.  The total effective sentence is thus two years and six months’ imprisonment.  We would fix a non-parole period of 15 months’ imprisonment, and would declare appropriate pre-sentence detention.  All other orders of the County Court should be confirmed.

----