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.

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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)

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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.

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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:

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.

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.

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’.

It is conceded by the respondent — properly, in our view — that the evidence that the applicant is now suffering from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 339
Decision Date: 9 December 2015

CaseChat Overview and Summary

In this case, Kathy Simmons, referred to by a pseudonym, brought an appeal against her conviction and sentence in the High Court of Australia. The applicant was convicted of sexual offences involving a 15-year-old victim and sentenced to three years in prison with a non-parole period of 18 months. Following her sentencing, the applicant was diagnosed with cancer. She applied for leave to appeal on the basis of this new evidence. The central legal issues in this appeal were whether the fresh evidence of the applicant’s medical condition constituted a ground for leave to appeal, and whether the sentence was manifestly excessive in light of the new evidence.

The Court examined the grounds for leave to appeal, considering the principles established in previous case law. The Court held that the fresh evidence of the applicant’s medical condition was significant and warranted consideration. It was found that the evidence demonstrated a substantial change in the applicant's circumstances since the original sentencing hearing, which warranted a re-evaluation of the sentence. The Court emphasised the importance of proportionality in sentencing and the need to consider the applicant's health in determining an appropriate penalty. Based on these considerations, the Court granted leave to appeal and allowed the appeal, resulting in the applicant being re-sentenced to two years and six months in prison with a non-parole period of 15 months.

The Court's decision underscores the importance of considering new evidence that materially impacts the circumstances of the offender at the time of sentencing. The Court’s re-sentencing reflects a balanced approach, taking into account both the gravity of the offences and the applicant’s health condition. The final orders of the Court were that the appeal be allowed, the applicant's sentence be quashed, and a new sentence of two years and six months imprisonment with a non-parole period of 15 months be imposed.

Orders