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R v Simmonds

R v Simmonds

Case [2025] NSWDC 217 2 April 2025

Aggravated Use of Child

Proportionality

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Simmonds [2025] NSWDC 217
Hearing dates: 2 April 2025
Date of orders: 2 April 2025
Decision date: 02 April 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 9 years with a non-parole period of 5 years 6 months

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Child sex offences — Child abuse material — Production — Aggravated use child <14
CRIME — Drug offences — Supply prohibited drug — Adult supply
SENTENCING — Mitigating factors — Plea of guilty to Count 1 — Prior good character
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Proportionality
SENTENCING — Sentencing procedure — Instinctive synthesis — sentence after trail — full benefit of acquittals — fact finding
SENTENCING — Subjective considerations on sentence — Drug use — Voyeuristic Disorder — Health issues

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Akkawi v R [2012] NSWCCA 11
Bell v R [2019] NSWCCA 251
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Clarkson v R [2011] VSCA 152
Hoare v The Queen (1989) 167 CLR 348
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
Markarianv The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Doan (2000) 50 NSWLR 115
R v Gavel [2014] NSWCCA 56
R v Geddes (1936) 36 SR (NSW) 554
R v Herring (1956) 73 WN (NSW) 203
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v Simmonds (District Court (NSW), 15 March 2024, unrep)
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Van Ryn [2016] NSWCCA 1
R v Wheeler [2000] NSWCCA 34
R v Windle [2012] NSWCCA 222
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Sampson v R [2025] NSWCCA 25
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
Usaia v R [2023] NSWCCA 57
Wakelingv R [2016] NSWCCA 33
Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168
Zreika v R [2012] NSWCCA 44

Category: Sentence
Parties: Daryl Simmonds
Representation:
Counsel:
B Hart (for the offender)
N Keay (for the Crown)
Solicitors:
Kells Your Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/328625
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child

JUDGMENT –…

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 Simmonds

Details

AGLC: R v Simmonds [2025] NSWDC 217
Case: [2025] NSWDC 217
Decision Date: 02 April 2025

CaseChat Overview and Summary

In the case of R v Simmonds, the defendant was charged with multiple serious offences, including sexual intercourse with a child over the age of ten, the production of child abuse material with an aggravated use of the child, and the supply of a prohibited drug to an adult. The matter was heard in the higher courts of Australia. The primary legal issues revolved around the appropriate sentencing for these serious offences, taking into account the mitigating factors such as the defendant's plea of guilty to one count, his prior good character, and various subjective considerations like his drug use, voyeuristic disorder, and health issues. The court was also required to balance the objective seriousness of the offences with the principles of proportionality and deterrence, while ensuring the sentence was proportionate and just.

The court meticulously examined each of the charges, recognising the gravity of the offences committed against a vulnerable child. It noted the defendant's early guilty plea to one count, which was considered a mitigating factor. The court also acknowledged the defendant's prior good character, but this was weighed against the severe moral culpability and the multiple nature of the offences. In assessing the appropriate aggregate sentence, the court considered the need for general and specific deterrence, the level of moral culpability, and the overall objective seriousness of the crimes. The court applied the principle of instinctive synthesis, ensuring that all relevant factors were taken into account in determining the final sentence.

After considering all mitigating and aggravating factors, the court determined that an aggregate sentence of imprisonment for nine years was appropriate, with a non-parole period of five years and six months. This sentence was designed to reflect the seriousness of the offences while also considering the mitigating factors presented. The court emphasised the importance of protecting society and ensuring that the sentence served as a deterrent against similar offences in the future. The detailed sentencing reasoning provided by the court ensures transparency and clarity for any future legal considerations.

The court's final orders were for the defendant to serve an aggregate sentence of imprisonment of nine years, with a non-parole period of five years and six months. This sentence was imposed after a comprehensive assessment of all relevant factors, ensuring that justice was served in a manner that balanced the needs of the community with the individual circumstances of the defendant.

Orders

Orders of the court

Aggregate sentence of imprisonment of 9 years with a non-parole period of 5 years 6 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Simmonds [2025] NSWDC 217

Cases Citing This Decision

No citing cases yet.

Cases Cited

Sampson v The King [2025] NSWCCA 25
Citation 1 (Para 20)

…unt stipulated in s 25D Crimes (Sentencing Procedure) Act 1999 (NSW), even if inconvenient because the discount involves part of a month: Sampson v R [2025] NSWCCA 25 at [49]. I note that that judgment appears to be contra to an earlier decisions of the Court of Criminal Appeal. I am in favour of orthodoxy, and I s…
Usaia v The King [2023] NSWCCA 57
Citation 2 (Para 20)

…Criminal Appeal. I am in favour of orthodoxy, and I still take the view that it is poor practice to specify dates as fractions of a month: Usaia v R [2023] NSWCCA 57 at [41]. Akkawi v R [2012] NSWCCA 11 at [110]-[111]. I will specify as directed by Samson the exact sentence to be applied, but when it comes to the…
Bell v R [2019] NSWCCA 251
Citation 3 (Para 39)

…t on the issue of “consent” the Court can take into account the fact that each act of sexual intercourse was “non-oppositional”: Bell v R [2019] NSWCCA 251 at [32]-[33]. But I repeat what Basten J said in Nelson v R [2016] NSWCCA 130 at [25]:…
R v Holder [2019] SASCFC 73
Citation 4 (Para 72)

…s are to commence and the benefit that I previously gave Simmonds of considerable concurrence of those other matters: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).…
R v Nelson [2016] NSWCCA 130
Citation 5 (Para 39)

…act of sexual intercourse was “non-oppositional”: Bell v R [2019] NSWCCA 251 at [32]-[33]. But I repeat what Basten J said in Nelson v R [2016] NSWCCA 130 at [25]:…
Wakeling v R [2016] NSWCCA 33
Citation 6 (Para 39)

…strictly mitigate the seriousness of s 66C offences, but it still remains relevant in assessing the relative seriousness of an offence: Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. I prefer what is sometimes called the “better approach” that on the issue of “consen…
R v Van Ryn [2016] NSWCCA 1
Citation 7 (Para 34)

…hysical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.…
R v Gavel [2014] NSWCCA 56
Citation 8 (Para 34)

…to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.…
R v Windle [2012] NSWCCA 222
Citation 9 (Para 81)

…they commit similar crimes in the future: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. The sentence should also reflect the community’s distaste and repugnance for offences of this type when committed against children and should, so fa…
Zreika v R [2012] NSWCCA 44
Citation 10 (Para 22)

…count the facts before the Court could have been disposed of in the Local Court when fixing penalty: R v Doan (2000) 50 NSWLR 115 at [42]; Zreika v R [2012] NSWCCA 44 at [109].…
Akkawi v R; Akkawi v R [2012] NSWCCA 11
Citation 11 (Para 20)

…rthodoxy, and I still take the view that it is poor practice to specify dates as fractions of a month: Usaia v R [2023] NSWCCA 57 at [41]. Akkawi v R [2012] NSWCCA 11 at [110]-[111]. I will specify as directed by Samson the exact sentence to be applied, but when it comes to the ultimate sentence imposed, I follow t…
Clarkson v R [2011] VSCA 152
Citation 12 (Para 34)

…That principle is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.…
Hogan v R [2008] NSWCCA 150
Citation 13 (Para 39)

…ut it still remains relevant in assessing the relative seriousness of an offence: Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. I prefer what is sometimes called the “better approach” that on the issue of “consent” the Court can take into account the fact that each ac…
Cahyadi v R [2007] NSWCCA 1
Citation 14 (Para 76)

…ity of the criminality of what occurred that night and morning: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at [307]-[308]; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. Ultimately, there must be effective punishment for each act even though they followed successively one upon the other throug…
R v MAK [2006] NSWCCA 381
Citation 15 (Para 73)

…ncing courts to avoid any suggestion that there are discounts given for multiple offences, particularly where they are separate and discrete: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].…
Markarian v The Queen [2005] HCA 25
Citation 16 (Para 21)

…The ultimate sentence imposed is arrived at by a process of intuitive synthesis: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. That process does not preclude “specific numerical or proportional allowances [being made] by the sentencer”: Markarian at [24]. But in sentencing there are no “golden rules”:…
R v Way [2004] NSWCCA 131
Citation 17 (Para 33)

…e to the gravity of the offence considered in the light of all of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at [354]; Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [125].…
R v Doan [2003] NSWSC 345
Citation 18 (Para 22)

…des that point. A Court can take into account the facts before the Court could have been disposed of in the Local Court when fixing penalty: R v Doan (2000) 50 NSWLR 115 at [42]; Zreika v R [2012] NSWCCA 44 at [109].…
R v Simpson [2001] NSWCCA 534
Citation 19 (Para 77)

…f minimum period for which he should be in prison must properly reflect the gravity of his offending and all the purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Ryan v The Queen [2001] HCA 21
Citation 20 (Para 81)

…ffender and others know what can occur should they commit similar crimes in the future: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. The sentence should also reflect the community’s distaste and repugnance for offences of this type…
R v Wheeler [2000] NSWCCA 34
Citation 21 (Para 76)

…ent for each act even though they followed successively one upon the other throughout what was a deliberate course of criminal behaviour: R v Wheeler [2000] NSWCCA 34 at [36]-[37].…
Regina v Simpson [1999] NSWCCA 367
Citation 22 (Para 77)

…r which he should be in prison must properly reflect the gravity of his offending and all the purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Postiglione v the Queen [1997] HCA 26
Citation 23 (Para 76)

…regation, as I said, must be just and appropriate to the totality of the criminality of what occurred that night and morning: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at [307]-[308]; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. Ultimately, there must be effective punishment for each act…
Hoare v The Queen [1989] HCA 33
Citation 24 (Para 33)

…d and is appropriate and proportionate to the gravity of the offence considered in the light of all of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at [354]; Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [125].…
Mill v The Queen [1988] HCA 70
Citation 25 (Para 71)

…e so that overall, it is just and appropriate to the crimes for sentence today and the matters upon which I intend to accumulate it: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].…
R v De Simoni [1981] HCA 31
Citation 26 (Para 37)

…I am acutely aware of the De Simoni principles: The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Simmonds must have the full benefit of his acquittals of the substantive charges that had, as elements, that he took advantage of her being under the influence of a drug. The key words are, as Madam Crown poi…

Legislation Cited

Crimes Act 1900 (ACT) 66C(1)
2 mentions
Drug Misuse and Trafficking Act 1985 (NSW) 25(1)
2 mentions
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 85)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 20)

Medium Neutral Citation:	R v Simmonds [2025] NSWDC 217
Hearing dates:	2 April 2025
Date of orders:	2 April 2025
Decision date:	02 April 2025
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 9 years with a non-parole period of 5 years 6 months
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Child sex offences — Child abuse material — Production — Aggravated use child <14 CRIME — Drug offences — Supply prohibited drug — Adult supply SENTENCING — Mitigating factors — Plea of guilty to Count 1 — Prior good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Proportionality SENTENCING — Sentencing procedure — Instinctive synthesis — sentence after trail — full benefit of acquittals — fact finding SENTENCING — Subjective considerations on sentence — Drug use — Voyeuristic Disorder — Health issues
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Akkawi v R [2012] NSWCCA 11 Bell v R [2019] NSWCCA 251 Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 Clarkson v R [2011] VSCA 152 Hoare v The Queen (1989) 167 CLR 348 Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 Markarianv The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Doan (2000) 50 NSWLR 115 R v Gavel [2014] NSWCCA 56 R v Geddes (1936) 36 SR (NSW) 554 R v Herring (1956) 73 WN (NSW) 203 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v Simmonds (District Court (NSW), 15 March 2024, unrep) R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Van Ryn [2016] NSWCCA 1 R v Wheeler [2000] NSWCCA 34 R v Windle [2012] NSWCCA 222 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Sampson v R [2025] NSWCCA 25 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Usaia v R [2023] NSWCCA 57 Wakelingv R [2016] NSWCCA 33 Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Daryl Simmonds
Representation:	Counsel: B Hart (for the offender) N Keay (for the Crown) Solicitors: Kells Your Lawyers (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/328625
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child