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,…

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 Simpson, Peter Francis v The Queen

Details

AGLC: Simpson, Peter Francis v The Queen [2009] NSWCCA 297
Case: [2009] NSWCCA 297
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the case of Simpson, Peter Francis v The Queen, the appellant, Peter Francis Simpson, appealed against his sentence for a series of child sexual assault offences. Simpson was convicted on six charges, having pleaded guilty. The court of appeal was tasked with determining whether the sentences imposed by the trial judge were excessive, both individually and in the aggregate, and if there were any errors in the application of the maximum penalties for the offences. Simpson argued that the sentences were manifestly excessive and that there were errors in the application of the maximum penalties.

The court considered whether the trial judge had erred in the application of the maximum penalties for two of the six counts. It found that the judge had indeed made an error in calculating the maximum penalty for these counts, which led to the sentences being more severe than they should have been. The court also considered the overall severity of the sentences, but found that while the sentences were severe, they were not manifestly excessive when the correct maximum penalties were applied. The court concluded that the trial judge had erred in the calculation of the maximum penalties, which was sufficient grounds to vary the sentences.

The appeal was upheld in relation to the errors in the application of the maximum penalties for two counts. The sentences for these counts were varied to reflect the correct maximum penalties. The court did not consider it necessary to alter the overall severity of the sentences, and therefore did not vary the sentences for the other four counts. The appeal was partially allowed, and the sentences were varied as per the court's determination.

Orders