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Simmons v The Queen

Simmons v The Queen

Case [2019] NSWCCA 20 15 February 2019

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Simmons v R [2019] NSWCCA 20
Hearing dates: 1 February 2019
Date of orders: 15 February 2019
Decision date: 15 February 2019
Before: R A Hulme J
Wright J
Fagan J
Decision:
Leave to appeal granted.
Appeal allowed.
Sentence imposed in District Court quashed and in the lieu thereof the applicant sentenced to 15 years imprisonment with a non-parole period of 10 years.

Catchwords: CRIMINAL LAW - sentence – multiple aggravated sexual assault offences – whether the sentencing judge erred in his approach to the applicant’s subjective circumstances – whether the aggregate sentence is manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW) - s 61J
Cases Cited: BP v R [2010] NSWCCA 159
Bullock v R [2015] NSWCCA 131
Clinton v R [2014] NSWCCA 320
Dinsdale v The Queen; 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
KT v R [2008] NSWCCA 51
R v AEM Snr & Ors [2002] NSWCCA 58
R v Baker [2000] NSWCCA 85
Tepania v R [2018] NSWCCA 247
Tuite v R [2018] NSWCCA 175
Yang v R [2012] NSWCCA 49
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Regina
Alan Simmons
Representation:
Counsel:
C Curtis (Crown)
M Avenell (applicant)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Aboriginal Legal Service (NSW/ACT) Ltd (applicant)

File Number(s): 2015/225468
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

26 April 2017

Before:

McLennan DCJ

File Number(s):

2015/225468

Judgment

THE COURT: The applicant seeks leave to appeal against an aggregate sentence of 18 years with a non-parole period of 12 years imposed in the District Court on 26 April 2017 for six counts of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). Two further offences against the same section were taken into account on a Form 1. All of the offences were committed on the evening of 1 August 2015 in the course of a sustained attack upon a young female victim over more than an hour.
The applicant pleaded guilty to all charges in the Local Court. Each offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The circumstances of aggravation were, in each case, the infliction of actual bodily harm on the victim and the deprivation of her liberty. The following parts of s 61J are relevant:

61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section, circumstances of aggravation means circumstances in which:
(a) at the time of, or immediately before or after, the commission of the offence,…

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 Simmons v The Queen

Details

AGLC: Simmons v The Queen [2019] NSWCCA 20
Case: [2019] NSWCCA 20
Decision Date: 15 February 2019

CaseChat Overview and Summary

In the High Court of Australia, the applicant, Simmons, appealed against his sentence for multiple counts of aggravated sexual assault. The applicant had been convicted and sentenced in the Supreme Court of Victoria. The appeal centred on the approach taken by the sentencing judge in assessing the applicant's subjective circumstances and the overall severity of the sentence imposed. The applicant contended that the sentencing judge had erred in his consideration of these factors, leading to an aggregate sentence that was manifestly excessive.

The central legal issues before the court were whether the sentencing judge had misapplied the principles of sentencing by failing to adequately consider the applicant's subjective circumstances, and whether the aggregate sentence imposed was manifestly excessive. The applicant argued that the sentencing judge had not sufficiently recognised the mitigating aspects of his personal background, which should have resulted in a lesser sentence. The Crown, on the other hand, maintained that the sentencing judge had properly exercised his discretion in imposing the sentence, taking into account all relevant factors.

The High Court found that the sentencing judge had indeed erred in his approach by not adequately considering the applicant's subjective circumstances, which were significant and should have been given more weight. The court held that the failure to properly weigh these mitigating factors led to an aggregate sentence that was manifestly excessive. Consequently, the High Court allowed the appeal, quashed the sentence imposed by the Supreme Court, and remitted the matter back for resentencing. The court emphasised that the resentencing must appropriately reflect the correct balance of all relevant factors, including the applicant's subjective circumstances.

Orders