R v Simpkins

[2019] NSWDC 75

District Court

New South Wales

Medium Neutral Citation:

R v Simpkins [2019] NSWDC 75

Hearing dates:

20 March 2019

Date of orders:

20 March 2019

Decision date:

20 March 2019

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

(1) Aggregate term of imprisonment of six months as a limiting term. 

(2) Refer the offender to the Mental Health Review Tribunal (MHRT)

Catchwords:

CRIME — Sexual offences — Indecent assault
CRIMINAL PROCEDURE — Special hearing — Limiting Terms — Whether court can permit conditional release pending determination — Mental Health (Forensic Provisions) Act 1990 (NSW) s 24.
SENTENCING — Sentencing after a special hearing

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Chahadi v R (2007) 168 A Crim R 41
Coles v R [2016] NSWCCA 32
DPP v Khoury [2014] NSWCA 15
Duncan v R (1983) 9 A Crim R 354
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 194 CLR 610
R v Blanco [1999] NSWCCA 121
R v Burchell (1987) 34 A Crim R 148
R v Crawley 5 A Crim R 451
R v Dent NSWCCA (unreported) 24 March 1991
R v Fisher (1989) 40 A Crim R 442
R v Hathaway [2005] NSWCCA 368
R v Liang; R v Li (1995) 82 A Crim R 82 39
R v Schwabegger (1998) 4 VR 649
R v Todd (1982) 2 NSWLR 517
R v Wilson (No 5) [2018] NSWSC 1077
Sabra v R [2015] NSWCCA 38

Category:

Sentence

Parties:

Regina (Crown)
Terence Paul Simpkins (Offender)

Representation:

Counsel:
Ms C Hurford, Solicitor Advocate (Crown)
Mr N Steel (Offender)

File Number(s):

2016/00180434

Publication restriction:

Victim, Witnesses, School

SENTENCE

HIS HONOUR:

OVERVIEW

1. Terence Paul Simpkins appears before me for sentence, he has been found guilty of five counts of assaulting a male person and committing an act of indecency. Count 1 is between 1 January 1971 and 31 December 1972 at Colo in the state of New South Wales, did assault Mr M and commit an act of indecency on him, contrary to s 81 of the Crimes Act 1900.

2. Count 2 is that between 1 January 1971 and 31 December 1972 at Colo in the state of New South Wales did assault Mr M, a male person and commit an act of indecency on him, contrary to s 81 of the Crimes Act 1900.

3. Count 3 is between 1 January 1971 and 31 December 1972 at Colo in the state of New South Wales, did assault Mr M, a male person and commit an act of indecency on him contrary to s 81 of the Crimes Act 1900.

4. Count 4 between 1 January 1971 and 31 December 1972 at Colo in the state of New South Wales, did assault Mr M a male person and commit an act of indecency on him, contrary to s 81 of the Crimes Act 1900. And count 5 is between 1 June 1971 and 30 June 1973 at Gunnedah in the state of New South Wales, did assault Mr M, a male person, and commit an act of indecency on him, contrary to s 81 of the Crimes Act 1900.

5. The maximum penalty in relation to all counts, at that time was five years. The maximum penalty is to be looked at by a sentencing judge as a yardstick where a judge should steer by it but not aim for it.

THE FACTS

6. I heard evidence from Mr M on the special hearing and I was satisfied beyond reasonable doubt as to the truthfulness, honesty and reliability of the witness.

7. Counts 1 and 2 relate to a camp that occurred in 1972 at Colo, this was a class camp and the number of students was about 10, there was a big storm and their tents were knocked down, they sought refuge in the Colo store which was leased by the accused.

8. The accused had a bedroom at the rear of the store, the complainant and GM, the best friend of the complainant ended up naked in bed with the accused. The accused was also naked, they lay on each side of the accused he masturbated the boys to the point of ejaculation and then at his direction the boys masturbated him to the point of ejaculation.

9. The offender was a lay-teacher and had taken the boys on a school camp. Both the complainant and GM were taught by the offender.

10. Counts 3 and 4, in the same year, 1972 the accused drove the complainant and GM to Colo for the weekend. There was some fondling in the car during the trip. They stayed at the shop. The complainant and GM lay naked with the accused on the accused's bed. The accused masturbated the complainant and GM to the point of ejaculation. At the direction of the accused the complainant and GM masturbated the accused to the point of ejaculation.

11. Count 5, after the incident referred to in counts 3 and 4 and some time in 1972 or 1973 the offender took the complainant, GM and PS on a road trip to Gunnedah. During the trip the van was stopped at a roadside rest area. The accused masturbated the boys in the back of the van. The complainant was masturbated to the point of ejaculation and thereafter the accused squeezed his testicles. At the direction of the accused the complainant masturbated the accused to the point of ejaculation. There was a mattress in the back of the van on which they all lay while this offending occurred.

OBJECTIVE SERIOUSNESS

12. The current ill health and unfitness of the offender does not go to the question of the object gravity of the offending. The offences involved a gross breach of trust between a teacher and a student. The offender relied upon the naivety of his student and explained to him that it was natural behaviour and that everyone does it and then took advantage of the complainant.

13. The offences were not of short duration. They were not minor touching. They involved masturbation to the point of ejaculation of the complainant and then directing the complainant to masturbate him to the point of ejaculation. There was no use of threats or physical hurt inflicted on the complainant. I have taken into account the disparity of age between the complainant and the offender and the relationship of teacher pupil in forming the question of objective seriousness. The offences were in my view objectively serious.

"Children are entitled to grow up free of defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by such conduct": R v Dent NSWCCA (Unreported) 24 March 1991.

"Such offenders should be severely punished, especially those who stand in a position of trust. Significant custodial sentences should be imposed for reasons of both general and specific deterrence. Heavy custodial sentences are essential if the Courts are to play their role in protecting young people from sexual attacks by adults": R v Fisher (1989) 40 A Crim R 442.

"General deterrence is the prime importance in making the community aware of the attitude of the Courts to child sex offenders": R v Burchell (1987) 34 A Crim R 148.

SUBJECTIVE CIRCUMSTANCES

14. The offender is 81 years of age. He was found unfit for trial and has been dealt with under the provisions of the Mental Health (Forensic Provisions) Act 1990, by way of a special hearing, and it has been my finding that on the limited evidence available the offender committed the offences charged: s 22(1)(c). Such a verdict constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.

15. He is a single man with no dependants, having never married, and had retired from teaching in 1983, after his first bypass heart surgery. He attended St Ignatius' College at Riverview, he did not matriculate. He says he was not good enough to go to university but attended Waverley Teachers' College for three years. He has taught at several schools including Waverley College; a Catholic school at Katoomba; Pendle Hill High School; He was a teacher in excess of 30 years.

16. He has had cardiac bypass surgery on two occasions, 1983 and 2005, and suffered a stroke in 2005, requiring hospitalisation for 28 days at the Nepean Hospital. He had an MRI brain scan on 17 February 2012 and 12 September 2017, which showed considerable cortical ischaemia affecting much of the left temporal lobe, with smaller areas of cortical and subcortical ischaemia in the left frontal lobe, and to a lesser degree the right frontal lobe near the vertex. He has organic brain damage.

17. He presents as a morbidly obese, frail man, with difficulties with mobility. He has problems with short term and retrograde memory, attention and concentration. He takes numerous medications, including Asasantin, which is taken for the control of stroke; Ikotab, which is an anti angina agent; Metrol, which is a beta blocker for the treatment of hypertension; Mirtazo, which is a sedating anti depressant; and Formet, which is taken for diabetes.

18. He has a psychiatric diagnosis of paraphilia, subtype paedophilia. He has been previously treated with Androcur to suppress testosterone production. He currently feels that due to his age he no longer requires the medication. He also has recently been diagnosed with a malignant tumour of his kidney, which has required surgical intervention and requires further treatment by way of radiology.

19. On 22 September 1995 he was sentenced to four years with a non parole period of three years, which expired on 19 September 1998. He reported to Mr Beran, a neurologist, that while in gaol he had suffered real recriminations regarding his past behaviour. The same is likely with the term of imprisonment that I am to announce. The offender will suffer significant hardship in custody, due to his age, morbid obesity and brain deficits, and I have taken that into account in coming to an appropriate sentence.

PROSPECTS OF REHABILITATION

20. He was sentenced in 1995 for offences that occurred in the early 1970s. He has not committed any offence since that date. These offences could have been dealt with at that time if they had been reported. They had not. I take the view that the offender has good prospects of rehabilitation.

DELAY

21. Where there has been delay in bringing an offender to Court justice requires that the delay be taken into account. Usually the delay will have a mitigatory effect upon sentence. Where there has been postponement of sentence, fairness to the prisoner requires weight to be given to the progress of his rehabilitation.

22. In R v Todd (1982) 2 NSWLR 517 Street CJ at 519-20 said:

"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach.

Passage of time between offence and sentence when lengthy will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

23. The offences occurred in 1972, 1973, some 47 years ago. I am sentencing the offender for a stale crime and take that matter into consideration, and extend to the prisoner an undue degree of leniency. In Crawley 5 A Crim R 451 the Full Federal Court held that the lapse of time since the offence and the gross delay in prosecution of the appeal would now make a custodial sentence undesirable. Blackburn J at 458 said:

"In my opinion, the spectacle of an offender being sent to prison four years after the offence, and almost two years after his trial, there being no explanation for the delay which would enable the Court either to excuse him or to reprove him, is so unseemly as to justify the imposition of a sentence which might otherwise be thought too lenient. If that result is undeserved good fortune for the appellant - and this Court does not know whether it is or not - it is nevertheless, in my view, a less undesirable result than sentencing him to prison so belatedly."

24. In Duncan 9 A Crim R 354 a decision of the Court of Appeal Western Australia, the Court held that the circumstances of the case were, because of the long delay, exceptional. Where there has been before sentence a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the offender, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation. In R v Schwabegger [1998] 4 VR 649, Vincent AJA considered and approved Crawley, Duncan, and R v Liang; R v Li 82 A Crim R 39.

25. In short summary, the authorities concentrate on the cause of the delay and the effect of the delay on the offender. Uncertain suspense in which a person may be left, secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period, and thirdly to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: R v Blanco [1999] NSWCCA 121 at [16] followed in Coles v R [2016] NSWCCA 32. See also Mill v R 166 CLR 59 and R v Hathaway [2005] NSWCCA 368, McClellan CJ at CL at [42]. See also Sabra v R [2015] NSWCCA 38, Bellew J at [45].

26. It is clear in this case that there has been uncertain suspense in which the person has been left. There has been demonstrated progress of the offender towards rehabilitation during the intervening period, and thirdly, I am sentencing for a stale crime which calls for a measure of understanding and a flexibility of approach.

IMPACT STATEMENT

27. I have heard Mr M recount to me about the fact that these offences have meant that he has kept them secret, and that wherever there are certain triggers they bring back memories and affect him. He is affected, and remembers these matters almost every day. Hopefully now that he has given evidence in the special hearing, he may be able to move on, and that the trigger effects will lessen the memories that have occurred at the hands of the offender.

SENTENCING AFTER A SPECIAL HEARING

28. Section 23 sets out the procedure to be adopted for the sentencing of an offender after the completion of a special hearing. The first question to be considered is, if the special hearing was a normal trial, would a sentence have been imposed: s 23(1)(a).

29. In answer to that question, I have considered s 3A of the Crimes (Sentencing Procedure) Act and s 5. I have considered that general deterrence is the paramount sentencing consideration. I am troubled that the special hearing procedure by its very nature precludes a discount for a plea. In this case, Mr Steel, who appeared for the offender, quite rightly did not engage in any lengthy cross examination of the complainant, nor any cross examination of the tendency witnesses. The way counsel conducted the trial should be to the benefit of the offender on sentence.

30. I have taken the view that the powerful subjective features of this case must not overshadow the objective gravity of the offences for which a sentence is to be passed. I have determined that a sentence of imprisonment is warranted.

31. The second question for consideration is, what is the best estimate of an appropriate sentence if the special hearing had been a normal trial: s 23(1)(b). It is necessary for a sentencing judge to apply the instinctive synthesis of sentencing, weighing up all relevant factors in arriving at an appropriate sentence. That sentence is described as a limiting term.

32. Pursuant to s 24, upon the nomination of a limiting term I must refer the person to the tribunal and make such order with respect to the custody of the person as the Court considers appropriate. If a Court imposes a limiting term, its function thereafter is limited to nominating an interim place for custody pending the tribunal's determination under s 24(3) and following such determination making one or other of the orders described in s 27. I am unable to grant bail pending the tribunal's determination: DPP v Khoury [2014] NSWCA 15 at [19]-[22] Bathurst CJ. Cf R v Wilson (No 5) [2018] NSWSC 1077. Although the course adopted in Wilson is attractive, I believe I am bound by Khoury.

33. Although I am to treat the matter of sentencing as a normal hearing, I am precluded from making a non parole period by s 23(6)(a) when imposing a limiting term. I am also precluded from making a finding of special circumstances, which I would have made in this case.

SENTENCE (THE LIMITING TERM)

34. I have had regard to the principles of proportionality and totality referred to in Pearce v R (1998) 194 CLR 610. There is no general rule as to whether sentences should be served concurrently or cumulatively, and I acknowledge that the issue is one of totality; see Chahadi v R (2007) 168 A Crim R 41.

35. I intend to impose an aggregate sentence of imprisonment. I am mindful that the aggregate sentence must reflect some accumulation of the indicative sentences.

36. In my view, due to the temporal connection between counts 1 and 2, that although they are separate offences, the sentences should be concurrent.

37. The indicative sentence for count 1 is one month.

38. The indicative sentence for count 2 is one month.

39. Due to the temporal connection of counts 3 and 4, although separate offences the sentences should be concurrent on each other, but with a degree of cumulation on the sentence I impose for count 5.

40. The indicative sentence for count 3 is two months.

41. The indicative sentence for count 4 is two months.

42. The indicative sentence for count 5 is four months.

43. I impose an aggregate term of imprisonment of six months as a limiting term. Pursuant to s 24(1)(a) of the Act, I refer the offender to the Mental Health Review Tribunal.

44. Pursuant to s 24(1)(b) of the Act, I recommend in the strongest terms to Corrections that the offender be taken to the hospital at Long Bail Prison as soon as possible. I do so for the following reasons:

1. The offender has been unable to participate in a normal trial because of his unfit state. I have dealt with the offender under the Mental Health (Forensic Provisions) Act 1990.

2. The offender is morbidly obese with difficulty with mobility.

3. The offender as a result of a stroke has organic brain damage. He has problems with short-term and retrograde memory, attention and concentration.

4. The offender is on numerous medications which he is required to take daily. They include medications for the control of stroke, an anti-angina agent, a beta blocker for treatment of hypertension, diabetes and antidepressant medication.

5. The offender has had a malignant tumour of his kidney and requires further ongoing medical treatment in relation to that matter.

6. The offender suffers from sleep apnoea and requires a machine every night to ensure that he is able to sleep, and if he did not have that machine then in turn there would be occasions where his brain is starved of oxygen.

45. I request urgent transcript of my sentencing remarks, and the special hearing findings. Those transcripts when available should be immediately sent to the Registrar of the Mental Health Tribunal. I request that Corrections allow the offender to take into custody his sleep apnoea machine to assure his physical well being. The offender presents with a number of current medications. I request that Corrections allow him to take those medications into custody so that there is no stopping of the regime that he is currently on and to avoid some delays that occur in relation to the prison system.

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Decision last updated: 27 March 2019