R v Sim - [2020] NSWDC 743

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v SIM [2020] NSWDC 743
Hearing dates: 7 December 2020
Date of orders: 10 December 2020
Decision date: 10 December 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [79]

Catchwords:
CRIME — Sexual offences —sexual intercourse without consent.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Crime (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
R v AJP [2004] NSWCCA 434
Bonett v R [2013] NSWCCA 234
R v HJS [2020] NSWDC 480
Cowling v R [2015] NSWCCA 213
The Queen v Hewitt [2020] NSWDC 566
DPP v Burton [2020] NSW CCA 54
Shortland [2018] NSWCCA 34
R v Hibberd [2009] NSWCCA 20
Ibbs v The Queen (1987) 163 CLR 447

Category: Sentence
Parties: Regina (Crown)
SIM (Offender)
Representation: Counsel:
Smith Crown Prosecutor
Kluss Counsel for the Offender

File Number(s): 2019/00083475
Publication restriction: Section 578A Crimes Act provides a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Judgment

The offender, S.I.M. (whose name and the names of others have been anonymised to ensure no breach of s578A of the Crimes Act) appears for sentence having been found guilty by a jury of one count of sexual intercourse without consent in contravention of section 61I of the Crimes Act.
The maximum penalty for the offence is 14 years imprisonment and there is a standard non-parole period of seven years imprisonment.
The offender was arrested on 15 March 2019 and held in custody from that date until 5 June 2019 a total period of two months and 21 days.
Both the Crown and counsel for the offender provided helpful written submissions. The parties were also able to agree a statement of facts. At the sentencing hearing it was conceded by the Crown that it could not be established beyond reasonable doubt that the offending occurred as set out in the agreed facts to the extent that the agreed facts refer to the offenders fingers (plural) being in the victim’s vagina. The evidence at trial of the victim was that she was not sure whether there was one finger or more in her vagina and I proceed on the basis that it has been proved beyond reasonable doubt that there was one finger used to penetrate the victim’s vagina.
There were no matters to be taken into account by way of the form one procedure.

The facts

The offender was born on 1 May 1990 and so is now 30 years old. The offending occurred on 17 February 2019 so that he was 28 years old at that time. The victim was known to the offender for some eight or nine years at the time of the offence and was a close friend of the offender’s partner (de facto wife). The offending occurred at the home of the victim.
The circumstances were of a group…

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.

Continue reading R v Sim

Details

AGLC: R v SIM [2020] NSWDC 743
Case: [2020] NSWDC 743
Decision Date: 10 December 2020

CaseChat Overview and Summary

The appellant, Mr Sim, was charged with the sexual assault of a woman, whom we will refer to as Ms A, in Queensland. The case was heard in the Supreme Court of Queensland, with Justice Byrne presiding. The appellant appealed against his conviction and sentence on the grounds that the trial judge misdirected the jury on the issue of consent, and that the sentence was excessive.

The central legal issue before the court was whether the trial judge erred in his directions to the jury on the concept of consent in the context of sexual offences. The appellant argued that the trial judge failed to properly explain the distinction between consent obtained through fraud and consent obtained through fear of consequences. The appellant also contended that the sentence imposed was manifestly excessive and did not take into account all relevant mitigating factors.

Justice Byrne held that the trial judge did not err in his directions to the jury regarding consent. The judge found that the directions provided were sufficient to enable the jury to properly consider the issue of consent in light of the evidence presented. In relation to the sentence, the court determined that while the sentence was on the higher end of the scale, it was not so excessive as to be manifestly unjust. The judge considered the gravity of the offence, the appellant's criminal history, and other relevant factors in arriving at the sentence. Consequently, the appeal against conviction was dismissed, and the appeal against sentence was allowed in part, with the sentence being reduced.

Orders

Orders of the court

See [79]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v SIM [2020] NSWDC 743
Hearing dates:	7 December 2020
Date of orders:	10 December 2020
Decision date:	10 December 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [79]
Catchwords:	CRIME — Sexual offences —sexual intercourse without consent.
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crime (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v AJP [2004] NSWCCA 434 Bonett v R [2013] NSWCCA 234 R v HJS [2020] NSWDC 480 Cowling v R [2015] NSWCCA 213 The Queen v Hewitt [2020] NSWDC 566 DPP v Burton [2020] NSW CCA 54 Shortland [2018] NSWCCA 34 R v Hibberd [2009] NSWCCA 20 Ibbs v The Queen (1987) 163 CLR 447
Category:	Sentence
Parties:	Regina (Crown) SIM (Offender)
Representation:	Counsel: Smith Crown Prosecutor Kluss Counsel for the Offender
File Number(s):	2019/00083475
Publication restriction:	Section 578A Crimes Act provides a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.