Medium Neutral Citation: R v Simons (a pseudonym) [2025] NSWDC 4
Hearing dates: 25 October 2024
Date of orders: 25 October 2024
Decision date: 25 October 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence of imprisonment of 6 years with a non-parole period of 3 years

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child under 10
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Remorse — Unlikely to re-offend — Efforts at rehabilitation
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Moral culpability — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Mental illness — Major Depressive Disorder — Alcohol addiction — Impact of custody —Loss and detriment

Legislation Cited:
Children (Criminal Proceedings Act) 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115
Daetz v R (2003) 139 A Crim R 398
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen [2010] HC 45; (2010) 242 CLR 520
JP v R [2015] NSWCCA 267
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Merkel v R [2019] NSWCCA 212
Nasrallah v R [2021] NSWCCA 207
Owen v R [2022] NSWCCA 214
Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Allpass (1993) 72 A Crim R 561
R v Clampitt-Wotton (2002) 37 MVR 340
R v Geddes (1936) 36 SR (NSW) 554
R v PGM [2008] NSWCCA 172 152
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 38
Ryan v The Queen [2001] HCA 21; 206 CLR 267
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Category: Sentence
Parties: Margorie Simons (a pseudonym) (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
C Doosey (for the offender)
N Keay (for the Crown)
Solicitors:
Johnston Legal (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2023/282996
Publication restriction: In this judgment pseudonyms will be used for the names of the offender and the child. Pursuant to s 15A Children (Criminal Proceedings Act) 1987 (NSW) there is to be no publication of any information, picture or any material that identifies or is likely to lead to the identification of a child. Identifying information has been removed from the published version of the judgment to comply with the statute.

JUDGMENT – ex tempore revised

Introduction

Margorie Simons (a pseudonym) was born in 1975. She was raised in a loving Christian home. There were problems during her childhood, including abuse, but…

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 Simons (a pseudonym)

Details

AGLC: R v Simons (a pseudonym) [2025] NSWDC 4
Case: [2025] NSWDC 4
Decision Date: 25 October 2024

CaseChat Overview and Summary

The court considered the case of R v Simons, where the defendant was charged with sexual intercourse with a child under the age of ten. The defendant entered a plea of guilty, and the matter proceeded to sentencing. The court was required to consider the applicable legal principles and relevant factors to determine an appropriate sentence. The legal issues included the nature of the offence, the defendant's character, the plea of guilty, the likelihood of re-offending, and the need for deterrence and rehabilitation.

The court acknowledged the defendant's good character, noting that he had no prior criminal record. The defendant's plea of guilty was considered a mitigating factor, as was his expressed remorse. The court also took into account the defendant's efforts at rehabilitation, including his engagement in mental health and alcohol addiction treatment programs. The defendant's mental illness, Major Depressive Disorder, and alcohol addiction were considered mitigating factors, as was the impact of custody, loss, and detriment. However, the court recognised the objective seriousness of the offence and the need for general deterrence.

After considering the relevant factors, the court determined that an imprisonment sentence was appropriate. The court found that the defendant's moral culpability was high, given the nature of the offence. The court also considered the need for general deterrence and the seriousness of the offence, which was classified as a Form 1 offence. The court applied the principle of instinctive synthesis, weighing all the relevant factors to arrive at a sentence. The court ultimately sentenced the defendant to imprisonment for six years, with a non-parole period of three years.

Orders

Orders of the court

Sentence of imprisonment of 6 years with a non-parole period of 3 years

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 Simons (a pseudonym) [2025] NSWDC 4

Cases Citing This Decision

No citing cases yet.

Cases Cited

Owen v R [2022] NSWCCA 214
Citation 1 (Para 26)

…h parties put submissions to me about where in the “range” the offence lay. In such circumstances, I have a duty to resolve the dispute: Owen v R [2022] NSWCCA 214. Ms Doosey suggested that this offence fell, taking into account only objective features, in the “lower realm” of what is very serious offending. Ms Keay…
Nasrallah v R [2021] NSWCCA 207
Citation 2 (Para 49)

…od trauma caused by sexual abuse: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; Nasrallah v R [2021] NSWCCA 207.…
Merkel v R [2019] NSWCCA 212
Citation 3 (Para 65)

…nd the Court of Criminal Appeal. The guidance offered by appellant courts is always welcome. There is a useful summary of s 66A matters in Merkel v R [2019] NSWCCA 212 and JP v R [2015]. My review takes into account the fact that the maximum penalty increased in 2015.…
R v Pham [2015] HCA 39
Citation 4 (Para 66)

…dgment and the mix of factors that must be weighed in determining the appropriate sentence is never precisely the same as in past cases: Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [46]; applying Hili v The Queen [2010] HC 45; (2010) 242 CLR 520.…
R v JP [2015] NSWCCA 267
Citation 5 (Para 25)

…d, expressed their conclusions using different adjectives and made different conclusions about where the offence fell on a notational scale: JP v R [2015] NSWCCA 267.…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 6 (Para 17)

…tribution for that crime: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42]. To avoid double counting of matters intrinsic to the sentencing exercise before me, the increase here will be modest.…
Hili v The Queen [2010] HCA 45
Citation 7 (Para 66)

…entence is never precisely the same as in past cases: Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [46]; applying Hili v The Queen [2010] HC 45; (2010) 242 CLR 520.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 8 (Para 49)

…fact they were also the victim of childhood trauma caused by sexual abuse: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; Nasrallah v R [2021] NSWCCA 207.…
R v PGM [2008] NSWCCA 172
Citation 9 (Para 58)

…ffending. There are exceptions to the rule, but they generally involve sexual offending for sexual gratification where children were groomed: R v PGM [2008] NSWCCA 172 152 at [43]-[44]. This is not such a case. I will give full weight to her prior good character. It is also an indication as to her prospects for the…
Markarian v The Queen [2005] HCA 25
Citation 10 (Para 19)

…actors relevant to the sentence, discuss their significance and make a value judgment about the appropriate sentence to impose: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. It is accepted that the offending was so serious that a custodial sentence of some length is required. That sentence mus…
Weininger v The Queen [2003] HCA 14
Citation 11 (Para 73)

…ttempt to translate the complexity of the human condition and human behaviour to mathematics usually expressed in time in gaol: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 12 (Para 17)

…nal deterrence and retribution for that crime: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42]. To avoid double counting of matters intrinsic to the sentencing exercise before me, the increase here will be modest.…
R v Simpson [2001] NSWCCA 534
Citation 13 (Para 64)

…ich the offender, if she is kept in custody, must properly reflect the gravity of the offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Ryan v The Queen [2001] HCA 21
Citation 14 (Para 57)

…t to her prior good character. No statutory exception applies here. Her prior good character must be taken into account on sentence: Ryan v The Queen [2001] HCA 21; 206 CLR 267.…
Morawski v State Rail Authority [2000] NSWCCA 309
Citation 15

…172 152 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 38 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Category: Sentence Parties: Margorie Simons (a pseudonym) (the offender) Public Prosecutions (NSW) (C…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 16 (Para 18)

…was not subject to further investigation of the matter and saved from significant additional stressors: R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].…
Regina v Simpson [1999] NSWCCA 367
Citation 17 (Para 64)

…f she is kept in custody, must properly reflect the gravity of the offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…

Legislation Cited

Crimes Act 1900 (ACT) 66A(1)
2 mentions (from Para 11)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 14)
Criminal Procedure Act 1986 (NSW)
1 mention

Medium Neutral Citation:	R v Simons (a pseudonym) [2025] NSWDC 4
Hearing dates:	25 October 2024
Date of orders:	25 October 2024
Decision date:	25 October 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence of imprisonment of 6 years with a non-parole period of 3 years
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child under 10 SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Remorse — Unlikely to re-offend — Efforts at rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Mental illness — Major Depressive Disorder — Alcohol addiction — Impact of custody —Loss and detriment
Legislation Cited:	Children (Criminal Proceedings Act) 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115 Daetz v R (2003) 139 A Crim R 398 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili v The Queen [2010] HC 45; (2010) 242 CLR 520 JP v R [2015] NSWCCA 267 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Merkel v R [2019] NSWCCA 212 Nasrallah v R [2021] NSWCCA 207 Owen v R [2022] NSWCCA 214 Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 R v Allpass (1993) 72 A Crim R 561 R v Clampitt-Wotton (2002) 37 MVR 340 R v Geddes (1936) 36 SR (NSW) 554 R v PGM [2008] NSWCCA 172 152 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 38 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Category:	Sentence
Parties:	Margorie Simons (a pseudonym) (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: C Doosey (for the offender) N Keay (for the Crown) Solicitors: Johnston Legal (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2023/282996
Publication restriction:	In this judgment pseudonyms will be used for the names of the offender and the child. Pursuant to s 15A Children (Criminal Proceedings Act) 1987 (NSW) there is to be no publication of any information, picture or any material that identifies or is likely to lead to the identification of a child. Identifying information has been removed from the published version of the judgment to comply with the statute.