Simon v R

The applicant, Simon, appealed both his conviction and sentence in relation to charges of sexual assault and other offences. Simon had followed the complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over several hours. He claimed the sexual intercourse was consensual. The appeal was considered by the court of criminal appeal, which needed to determine whether the applicant's Notice of Intention to Appeal and Notice of Appeal, filed significantly out of time, could be extended under s 10(1)(a) of the Criminal Appeal Act 1912 and r 3A of the Criminal Appeal Rules. The court also needed to consider the sentencing appeal, including whether the sentencing judge erred in determining the objective seriousness of the offences, in assessing the totality of the sentence, and in accumulating sentences by failing to find the sexual assaults formed one episode of criminality. Additionally, the court needed to determine if the sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences, and whether the sentence was manifestly excessive.

The court held that the applicant had not shown sufficient prospects of success to warrant an extension of time for filing the appeal against conviction, and the appeal was dismissed. In relation to the sentence, the court found that the sentencing judge correctly assessed the objective seriousness of the offences, which fell well above the mid-range and up towards the high range. The court did, however, reduce the aggregate non-parole period by 12 months and otherwise confirmed the sentence.

The final orders of the court were that the appeal against conviction was dismissed, and the sentence was confirmed with a reduction in the aggregate non-parole period by 12 months. This means that Simon's conviction and sentence, with the specified modification, stand as originally determined by the lower court.