Simpson, Peter Francis v The Queen - [2009] NSWCCA 297

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
SIMPSON, Peter Francis v R [2009] NSWCCA 297

FILE NUMBER(S):
2008/7500 and 2008/7755

HEARING DATE(S):
2 October 2009

JUDGMENT DATE:
17 December 2009

PARTIES:
Peter Francis Simpson (Applicant)
The Crown (Respondent)

JUDGMENT OF:
Latham J Fullerton J Schmidt J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/7755, 2008/7500

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
12 September 2008

COUNSEL:
Mr A Haesler (Applicant)
Ms M Cinque (Respondent)

SOLICITORS:
S O'Connor (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - severity of sentences - child sexual assault offences - six charges - pleas of guilty - errors in application of maximum penalties - whether individual and total sentences manifestly excessive - leave to appeal granted - appeal upheld in relation to error as to maximum penalties for two counts - sentences varied

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Karl Eedens v R [2009] NSWCCA 254
R v AJP [2004] NSWCCA 434; (2004) 150 Crim R 575
R v CDH [2002] NSWCCA 103
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Vaovasa v R [2007] NSWCCA 223; (2007) 174 A Crim R 116

TEXTS CITED:

DECISION:

The time in which notice of the application for leave to appeal be filed, is extended.
Leave to appeal is granted.
The appeal is upheld in part and the sentences imposed in relation to the first, second and third counts are quashed.
In lieu thereof the applicant is sentenced as follows:
- On Count 2 - a non-parole period of 2 years, to commence on 5 June 2010 to expire on 4 June 2012, with a balance of term of one year and 9 months, expiring on 4 March 2014.
- On Count 3 - a non-parole period of 3 years, to commence on 5 June 2011 and to expire on 4 June 2014 with a balance of term of 2 years 3 months, expiring on 4 September 2016.
- On Count 1 - a non-parole period of 3 years imprisonment to commence on 5 June 2014 and to expire on 4 June 2017 with a balance of term of 4 years 6 months, expiring 4 December 2021.

JUDGMENT:

- 15 -

IN THE COURT OF
CRIMINAL APPEAL

2008/7500 AND 2008/7755
LATHAM J
FULLERTON J
SCHMIDT J
17 DECEMBER 2009

Peter Francis SIMPSON v REGINA

Latham J: I agree with Schmidt J.
Fullerton J: I agree with Schmidt J.
Schmidt J: Peter Francis Simpson seeks leave to appeal under s 5(1) of the Criminal Appeal Act 1912, against the severity of the sentences imposed upon him by his Honour Acting Judge Woods, on 12 September 2008, in relation to six charges in respect of which he entered pleas of guilty.
The six charges were:
the firstsexual intercourse without consent, carrying a maximum penalty of imprisonment for 14 years, pursuant to s 61I of the Crimes Act 1900 and a standard non-parole period of 7 years;
the secondsexual intercourse with a person between 10 and 16 years, carrying a maximum penalty of imprisonment for 8 years, pursuant to s 66C(1) of the Crimes Act ;
the thirdsexual intercourse with a person between 10 and 16 years, carrying a maximum penalty of imprisonment for 10 years, pursuant to s 66C(2) of the Crimes Act;
the fourth to sixth aggravated indecent assault (person under 16 years), carrying a maximum penalty of imprisonment for 7 years, in respect of each offence, pursuant to s 61M(1) of the Crimes Act and a standard non-parole period of 5 years.
The applicant was also fined $500 in relation to a s 166 certificate in respect of a charge of possessing ammunition without a license.
After applying a discount of 25 per cent for the pleas of guilty, the individual sentences imposed for the six offences were:
The sixth - imprisonment for a term of 3 years, to commence on 5 June 2007 and to expire on 4 June 2010, with a non-parole period of 2 years, to expire 4 June 2009
The fifth - imprisonment for a term of 3 years, to commence on 5 June 2008 and to expire on 4 June 2011, with a non-parole period of 2 years, to expire 4 June 2010
The fourth - imprisonment for a term of 3 years, to commence on 5 June 2009 and to expire on 4 June 2012, with a non-parole period of 2 years, to expire 4 June 2011
The third - imprisonment for a term of 7 years 6 months, to commence on 5 June 2010 and to expire on 4 December 2017, with a non-parole period of 5 years 6 months, to expire 4 December 2015
The second - imprisonment for a term of 7 years 6 months, to commence on 5 June 2013 and to expire on 4 December 2020, with a non-parole period of 5 years 6 months, to expire 4 December 2018
The first - imprisonment for a term of 7 years 6 months, to commence on 5 June 2017 and to expire on 4 December 2024, with a non-parole period of 3 years, to expire 4 June 2020.
The partial accumulation of the sentences led to a finding of a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act 1999. The applicant received an overall sentence of imprisonment for a term of 17 years 6 months, to commence on 5 June 2007 (the date the applicant was taken into custody) and to expire on 4 December 2024, with a non-parole period of 13 years, to expire 4 June 2020.
The Proceedings Below
Agreed facts were tendered on sentencing. The charges related to five victims. The first charge, sexual intercourse without consent, related to JR, then aged 16 years, which occurred between 9 July 2003 and 31 December 2003. The second charge, sexual intercourse with a person aged 10 years or over and under 16 years, which occurred between 1 July 2002 and 31 December 2002, related to JR’s brother, AR, then aged 13 years. The third charge, sexual intercourse with a child aged between 10 and 16, while under the applicant’s authority, occurred between 12 April 2003 and 27 April 2003 while the applicant had been granted overnight care of AR, by his parents. It also related to AR, then aged 13 years.
The fourth charge, aggravated indecent assault, which occurred on 23 December 2006, concerned PG, then aged 15 years. The fifth charge, also aggravated indecent assault, which occurred between 1 January 2007 and 20 February 2007 concerned DM, then aged 15 years. The sixth charge, a further aggravated indecent assault, which occurred between 21 December 2006 and 25 December 2006, concerned ZG, then aged 12 years.
The agreed facts showed that the first, second and third charges concerned offences representative of other offences of a similar kind, committed in relation to both JR and AR.
There was a Probation and Parole Service Pre-Sentence report of 25 August 2008 in evidence; a risk assessment undertaken by Nathan Ratsep, Probation and Parole Officer Bathurst District Office; Victim Impact Statements in relation to the victim ZG; a Pre-Sentence Report prepared by the Department of Courts Administration, dated August 1992; a report of 27 April 1992, by the psychologist Mark Grant and a report of 17 July 2008, by the Forensic Psychiatrist Dr Bruce Westmore. The applicant did not give evidence.
The facts found by his Honour were that:
"In 1998 the R family purchased a property at Cooks Gap near Mudgee for use as a weekender and holiday accommodation. They had two sons aged then eleven and nine years. The offender resided in the area and after meeting the R family he spent a great deal of time becoming friendly with the family and winning the trust and confidence of the parents. At the time the accommodation of the R family was spartan whereas the offender's house was equipped with modern conveniences. Because of this, and when they were there on school holidays and weekends the R family, and in particularly the two boys, would spend a lot of time at the offender's residence to watch TV, use the computer, play computer games and eventually to use the shower. The offender would purchase gifts for the boys and the boys would help him around the property and the offender allowed the boys to use his firearms.
In about 2000 the offender commenced making sexual approaches to the boys, first of all to J then to A. This included exposing his penis to them touching their genitals, placing his penis into J’s mouth and making him perform oral sex on him. The sexual contacts and acts continued over the years and in 2003 when J was sixteen years of age it led to the offender having penile anal sexual intercourse with him without his consent and knowing that he did not want to engage in such activity."
This act of anal intercourse was the first offence with which the applicant was charged. His Honour considerably condensed what was contained in the agreed facts, which also recorded in detail two other sexual assaults of JR in 2000, when he was 12 and 13 years old. His Honour continued:
"During these years J had been told to say nothing about what was happening and threats were made and J stated that he felt shocked and embarrassed about these contacts. After the 2003 incident J avoided going to the offender's property and became estranged from his own family. Meanwhile the offender had been engaging in sexual contacts activity with J's younger brother A.
From about 2002 the offender was touching A on the genitals and engaging in oral sex with A. A states that he was in shock at the beginning and unable to react. He allowed these things to happen over the years as he was told by the offender not to tell anyone. A said that the felt ashamed of myself, disgusted with himself and was too embarrassed to tell anyone."
This was directed to the second offence charged, an act of fellatio, again very considerably condensing the detailed account of that assault given in the agreed facts, where other assaults were also outlined. One occurred a few days after the first assault of A and two more, in December 2002. His Honour continued:
"This activity of masturbation and oral sex continued through 2002 and 2003. There was an occasion in 2003 where the two boys stayed overnight at the offender's house with the consent of their parents and the offender engaged in oral sex with A on that occasion. A stated that, "I was worried what people might think about me if they found out and that made me feel really upset."
This was directed to the third offence charged, which again considerably condensed the account given in the agreed facts. There a further serious assault which occurred about a month later was outlined, as were two more assaults, one the following January and another later in 2004. His Honour continued:
"A's behaviour at school had deteriorated by August 2004 and when confronted by his parents A told them what had been happening. On 5 August Mr R telephoned the offender and told him that he knew what he had done and he was not to contact any member of the family. On 8 August the offender rang Mr R and said, "I'm selling my house and I will give you money." The offender said, "Sorry, sorry." The R family had no further dealings with the offender and it was not until 2005 that J revealed to anyone what the offender had been doing to him.
In 2005 the offender made friends with the M family. P and ZG are brothers and their cousin is DM. The offender knew Mr M through business dealings. He become trusted as a family friend and was often entrusted with the care and control of P and ZG and DM. Mr M did a lot of travelling through the state with his business so the boys were invited to stay at the offender's home in the Mudgee district. When the offender travelled he took one or other of the boys with him and would touch them in the groin area and grab at their penis and genitals through their pants.
In December 2006 PG was at the offender's home at Gulgong and the M's were away and the offender grappled with PG and forced his hand inside the boy’s pants and held his penis. The boy pushed the offender off and ran out of the house. P was aged fifteen years at the time."
This event in December 2006 related to the fourth charge. His Honour continued:
"Some time in January, February 2007 while DM was staying at the offender's home at Gulgong the offender placed his hand on the boy's penis and testicles from outside the pants. D was fifteen at the time and told the offender to get out of it."
This related to the fifth charge. His Honour continued:
"Sometime in December 2006 to January 2007 the offender travelled with the three boys to Walgett and while staying in a motel room the offender forced his hand down the front of Z's shorts and took hold of his penis, Z who was twelve years old at this time struggled with the offender and was able to escape his grip and ran from the motel room."
This related to the sixth charge. His Honour continued:
"In March 2007 both J and A made statements to the Police and then an investigation was conducted by Mudgee police and on 5 June the offender was arrested. At the time of arrest some ammunition was found in his house. The offender does not hold a shooter's licence to permit him to possess such ammunition."

The Grounds of Appeal

The hearing of the appeal proceeded largely without reliance on the written grounds. Whilst Ground 1 of the written grounds as filed asserted manifest excess with respect to the sentence, including the non-parole period, imposed on the first count, that argument was abandoned, in my view sensibly so. It cannot be realistically maintained that forced anal intercourse with a boy of 16 years is not an offence of considerable gravity warranting a sentence of 7 years and 6 months, particularly in the light of the applicant’s past offending and the position of trust he occupied at the relevant time. Indeed, a non-parole period of 3 years would be inadequate if it were considered independent of the requirement to adjust the proportion because of the principle of totality.
The live issues on the hearing of the appeal concerned admitted errors made by the Judge as to the maximum penalty that applied with respect to counts 2 and 3, and a failure to determine the objective gravity of the aggravated indecent assault offences. Without that determination, the role played by the standard non-parole period in the imposition of sentence on counts 4, 5 and 6 could not be ascertained. The Crown acknowledged that some adjustment to the aggregate sentence was necessary, following re-sentencing on counts 2 and 3.
Ground 2 : Error in the Application of the Wrong Maximum Penalty for Counts 2 and 3.

It was common ground that Woods ADCJ erred in the sentences imposed in relation to the second and third offences and that this Court must intervene to correct that error. The error flowed from written submissions on sentence provided by the Crown, in which it was submitted that the maximum penalties for these offences were 16 and 20 years respectively. The maximum penalties were in fact 8 and 10 years, respectively. Moreover, his Honour at no stage determined where these two offences lay within the range of criminality indicated by the relevant maximum penalty.

His Honour concluded that these offences, both involving fellatio on a thirteen year old boy, had to reflect the same starting point as that selected in relation to the first offence, namely a term of 10 years. Allowing a 25% discount for the plea of guilty, there was a resulting term of 7 years and 6 months on each count and a non-parole period of 5 years and 6 months.
Those sentences suggest that objectively, these offences were considered less serious than the first offence and that the second offence was considered more serious than the third, given that his Honour came to the view that they should each attract a starting sentence of 10 years, when the respective maximum penalties, on his understanding, was 14 years for the first offence, 16 for the second and 20 for the third.
I accept that offences 2 and 3 are each objectively less serious than offence 1. However, I do not regard the second offence as more serious than the third. It is well settled that in assessing the objective seriousness of an offence such as this, the nature of the particular sexual assault in question must be considered - see the discussion in R v AJP [2004] NSWCCA 434; (2004) 150 Crim R 575 at [24]. Here, there was no relevant distinction between the nature of the sexual activity, albeit the surrounding circumstances varied.
The second offence involved the applicant masturbating and fellating AR. This was the beginning of a series of increasingly serious assaults, when AR visited the applicant's home between 1 July and 31 December 2002. The third offence occurred between 12 and 27 April 2003, at a time when AR had been left overnight in the applicant’s care by his parents. This offence occurred when the applicant climbed into AR’s bed and caressed his genitals, fellated him, masturbated and ejaculated over him and again fellated him. Plainly, the objective gravity of the third offence was greater than that of the second.

Taking these factors into account, I would place the second offence well within the mid range. In the case of the third offence, it fell above the mid range of objective gravity.

There were a number of aggravating factors to be considered. The offences occurred while the applicant was on a Crimes (Sentencing Procedure) Act s 9 good behaviour bond in relation to an offence under s 527C of the Crimes Act (in relation to unlawful possession of property). The applicant had four prior convictions under s 61M of the Crimes Act and a conviction under s 78K (in relation to homosexual intercourse with a male person aged over ten years and under sixteen years). He had served a total sentence of 3 years and I month imprisonment commencing in 1992. These convictions disentitled the applicant to any leniency.
The applicant’s personal circumstances were that he was 58 at the time of sentencing, having had a troubled upbringing as the result of his father’s alcoholism and violence. He had married, but the relationship had broken down and he had separated from his partner. He had two children, but contact with them had been lost. There was psychological evidence tendered at the hearing below, suggesting that when imprisoned in respect of the earlier offence of homosexual intercourse with a male person aged over ten years and under sixteen years, the applicant was perceived to have shown remorse and good insight into his behaviour. He had undertaken some relevant courses. The subsequent offences showed that perception to have had no sound basis.
The first report from Dr Bruce Westmore referred to sexual contact with cousins as a ten year old and being fondled by a pastor at age 13 and later regular consensual sexual contact with an older male when aged 17. Dr Westmore recommended a sex offenders programme and that risk of re-offending could only be assessed when they were completed. He did not consider the applicant likely to be a paedophile, given the evidence of the victims’ secondary sexual development. He noted limited past counselling and recommended more, so that the applicant’s risk of re-offending could be assessed. Ms Young, a psychologist, assessed the applicant as in the moderate to high risk category for re-offending and also recommended further counselling.
Fresh evidence in the form of a further report from Dr Westmore was received without objection. This revealed more about the applicant’s sexual contact with men when aged 16 years and older, that there had been consensual participation in sexual activity from a younger age, and that there was an attempted rape when he was 18, which had led the applicant to attempt suicide. The applicant had also indicated a desire to undertake courses to stop re-offending.
Dr Westmore suggested that the applicant might have ‘ego-dystonic’ homosexuality and that such males could be educated through counselling to redirect their sexuality towards age appropriate peers, which could occur after they become more accepting of their sexuality. Such males rarely engaged in sexual activity with children, being more likely to have anonymous adult based homosexual activity, or less rarely, some contact with underage but teenage children. Dr Westmore recommended that the applicant attend a sex offender’s programme and that until he had completed such a programme, his levels of remorse, insight and capacity to change behaviours would not be fully understood and identified.

This evidence did not provide any sound basis upon which it might be concluded that the applicant is not likely to re-offend. As his Honour found below, there was but little in this material which could properly be given much weight by way of mitigation. Despite the punishment which was imposed in 1992 for an earlier similar offences and the courses undertaken while in custody, the applicant engaged in further sexual activity with children.
The applicant’s offences and what is reflected in the agreed facts suggest no real remorse or acceptance of the applicant’s wrongdoing. The second and third offences were committed in the context of a long, carefully orchestrated campaign of abuse of AR.
There was no issue that the applicant’s early plea should lead to a 25% utilitarian discount, as his Honour accepted. As I have explained, there was little else in the evidence which may properly be given much weight, so far as mitigation is concerned.
In fixing sentences, I have concluded that the appropriate starting point, to reflect all of the matters referred to, is a penalty of 5 years for the second offence, reduced to 3 years and 9 months after the 25% discount is applied. As to the third offence, I have concluded that the appropriate starting point is a sentence of 7 years, reduced to 5 years and 3 months after the 25% discount is applied. It will be necessary to return to these sentences when considering the appropriate aggregate sentence and non-parole period.
Ground 3: The Sentences in Respect of the s 61M Offences were Excessive.
The maximum penalty for each offence was 7 years, with a standard non-parole period of 5 years. His Honour observed that the statistics relied on suggested “a medium range” of 3 years, with a non-parole period of 2 years for these offences. His Honour appears to have adopted a starting point of 4 years for each offence, before applying a 25% discount for the early plea, to arrive at a sentence of 3 years and a non-parole period of 2 years, in each case. There was no reason given for the conclusion that the standard non-parole period should not be imposed, although inferentially, as was submitted for the Crown, his Honour’s starting point of 4 years, may reflect a view that the offences were each below the mid range.
On the agreed facts, it was submitted that the offences were each below the mid range, the fifth being at the very, very bottom of the range, albeit requiring a term of imprisonment. The other two offences, it was said, fell very close to the bottom of the range and did not require a significant custodial sentence, even having regard to the standard non-parole period. Further, it was submitted that each assault was of short duration, with no threats involved. In the case of the fourth and fifth charges, the victims were but days or weeks away from their sixteenth birthdays. In the fifth, the applicant had touched the victim’s genitals only on the outside of his clothing. His Honour’s reasons did not disclose whether these considerations were taken into account in coming to the same sentence in respect of each offence.
As was recently discussed again in Karl Eedens v R [2009] NSWCCA 254 at [24], a sentencing court must make an assessment of the objective seriousness of the offence in question with some specificity and a failure to do so may lead to the conclusion that the sentencing discretion has miscarried. In relation to these offences, his Honour did not indicate whether in his view they fell in the mid range, or below it. and did not explain the departure from the standard non-parole period. (See R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [117] to [120], discussed in Karl Eedens v R at [20] to [25]).
While his His Honour’s view acknowledged that the pleas of guilty justified a departure from the standard non-parole period, but that it was nevertheless relevant as a guide or reference point for a mid range case, that general observation was a meaningless observation, in the absence of a determination as to whether offences 4, 5 and 6 fell within that mid range.
While the fifth charge was plainly not as serious as the other two, they each occurred after the applicant’s offences against the other two victims had been uncovered. Still, the applicant did not desist, but looked for and found three other victims. He persisted until his arrest after his fifth victim revealed the applicant’s assault to a parent. During these offences each victim was in the applicant's company as a family friend. Two of the offences occurred while the victim was at the applicant's home and the other, while in a motel room alone with the applicant.
The fourth offence occurred despite PG’s protests. The applicant lay on top of him, holding him down, after PG had fallen to the ground. He forced his hand down the 15 year old’s pants and took hold of his penis. PG had to use all of his strength to push the applicant off, so that he could escape. The fifth offence occurred when the applicant placed the palm of his hand on DM’s testicles and penis, on the outside of his pants. The applicant laughed, but desisted, when DG told him to ‘get out of it, don’t do that’.
The sixth offence involved the applicant forcing his hand down 12 year old ZG’s pants and taking hold of his penis, while ZG struggled to escape his grip and run from the motel room, where they were alone together.
I am not persuaded that offences 4 and 6 can properly be characterised as falling below the mid range of objective gravity. In my view, the objective gravity of these offences more than justified a nominal starting point of 4 years imprisonment. I accept that the fifth offence is not a mid range offence. However, given the circumstances outlined above, the sentence ultimately imposed by his Honour for that offence is also not manifestly excessive. It follows that this ground of the appeal must be rejected.
Ground 4: The Total Sentence was Manifestly Excessive

It was submitted that, given the way in which the sentences for the fourth to sixth charges were structured, the degree of accumulation was excessive, resulting in an effective sentence of 5 years imprisonment, with a non-parole period of 4 years. It was also argued that insufficient weight was given to the evidence of the applicant’s sexual abuse as a child.
As to the latter factor, I am of the view that no error was shown in his Honour’s approach. The matter was not ignored, but the evidence was slight and not regarded as being of much weight, on the question of mitigation. As was observed in R v CDH [2002] NSWCCA 103, such abuse may be relevant to rehabilitation, but may not be regarded as an excuse. The weight given to the evidence before his Honour was well within his discretion.
Nor am I persuaded that the degree of accumulation for the fourth to sixth charges was excessive. The offences were committed at different times and involved three different victims. True it is that the aggregate non-parole period for these offences exceeded the statutory ratio by 3 months, but the relevant consideration is the proportion between the aggregate sentence for all of the offences and the aggregate non-parole period for all of the offences.
The total sentence must be reconsidered in light of the success on Ground 2. The offences occurred over some years, in circumstances where the applicant repeatedly abused his position as a family friend with respect to a number of victims. Some of the charges were representative of continuing and escalating abuse of JR and AR. Those offences included fellatio and penile/anal penetration without consent. During at least two of the offences the applicant was on a s 9 bond. He had a history of prior similar convictions. Specific deterrence is undoubtedly an important factor in sentencing this offender.
There is no question that a significant term of imprisonment must be imposed. As discussed in Vaovasa v R [2007] NSWCCA 223; (2007) 174 A Crim R 116 at [15], the sentences must be partially cumulative; otherwise the total sentence would fail to reflect the total criminality of the offences in question. They involve, as I have observed, six separate offences, involving five victims, as a part of an ongoing course of conduct. They were not isolated incidents. Children, including 16 year old teenagers, are entitled to grow up free from the dangers which sexual predators such as the applicant pose. The aggregate sentence must reflect a marked degree of general deterrence.
Taking all of these matters into account, I have concluded that the appropriate total sentence is one of 14 years and 6 months imprisonment, with a non-parole period of 10 years. An aggregate non-parole period of less than 10 years would fail to reflect the criminality inherent in these offences.
Orders
The orders I propose are:
1.The time in which notice of the application for leave to appeal be filed, is extended.
2.Leave to appeal is granted.
3.The appeal is upheld in part and the sentences imposed in relation to the first, second and third counts are quashed.
4.In lieu thereof the applicant is sentenced as follows:
On Count 2 - a non-parole period of 2 years, to commence on 5 June 2010 to expire on 4 June 2012, with a balance of term of one year and 9 months, expiring on 4 March 2014.

On Count 3 - a non-parole period of 3 years, to commence on 5 June 2011 and to expire on 4 June 2014 with a balance of term of 2 years 3 months, expiring on 4 September 2016.
On Count 1 - a non-parole period of 3 years imprisonment to commence on 5 June 2014 and to expire on 4 June 2017 with a balance of term of 4 years 6 months, expiring 4 December 2021.

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LAST UPDATED:
17 December 2009