Simpson v R

Case [2014] NSWCCA 23

Court of Criminal Appeal

New South Wales
Case Title: Simpson v R
Medium Neutral Citation: [2014] NSWCCA 23
Hearing Date(s): 26 February 2014
Decision Date: 04 March 2014
Before: Hoeben CJ at CL at [1]
Adams J at [44]
R A Hulme J at [45]
Decision:

Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - sexual intercourse without consent - whether sentence imposed was manifestly excessive - two episodes of digital penetration following a savage physical assault, one charged and one on a Form 1 - intercourse not driven by need for sexual gratification but to demonstrate domination and inflict humiliation - importance of specific and general deterrence - sentence not shown to be "unreasonable or plainly unjust" - leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Barbaro v The Queen; Zirillo v The Queen [2014] HCA 2
Dinsdale v R [2000] HCA 54; 202 CLR 321
Doe v R [2013] NSW CCA 248
GWM v R [2012] NSWCCA 240
MH v Regina [2011] NSWCCA 230
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Kentwell [2013] NSWCCA 266
R v Stewart [2012] NSWCCA 183
Category: Principal judgment
Parties: Leonard James Simpson - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr J Trevallion - Applicant
S Dowling SC - Respondent Crown
- Solicitors: Solicitors:
Matthew Trevillion - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2011/288684
Decision Under Appeal
- Before: Conlon DCJ
- Date of Decision:  16 November 2012
- Court File Number(s): 2011/288684

JUDGMENT

  1. HOEBEN CJ at CL:

    Offences and sentence
    The applicant pleaded guilty on the first day of trial to the following offences:
    Count 1 - Assault occasioning actual bodily harm, contrary to s59(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years.

    Count 2 - Sexual intercourse without consent, contrary to s61I Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 7 years.

  2. In relation to Count 2, the applicant asked the sentencing judge to take into account on a Form 1 a further offence of sexual intercourse without consent contrary to s61I.

  3. The applicant was sentenced as follows:

    Count 1 - Imprisonment for a fixed term of 18 months, commencing 7 September 2011 (the date of his arrest) and expiring 6 March 2013.

    Count 2 - (Taking into account the Form 1 offence) imprisonment with a non-parole period of 5 years, commencing 7 September 2012 and expiring 6 September 2017, with a balance of term of 2 years…

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AGLC
Simpson v R [2014] NSWCCA 23
Case
[2014] NSWCCA 23
Decision Date

CaseChat Overview and Summary

In the case of Simpson v R, the applicant appealed against his sentence for a charge of sexual intercourse without consent, arguing that the sentence was manifestly excessive. The matter was heard in the Court of Criminal Appeal, which was asked to decide whether the sentence imposed was unreasonable or plainly unjust. The applicant argued that the sentence should not be upheld because it did not adequately account for the specific and general deterrence of such crimes, the denunciation of the offending conduct, and the protection of the community. He also argued that the court had not made a precise assessment of the objective seriousness of the offence, which was necessary due to the application of a standard non-parole period.

The court considered the arguments put forward by the applicant and noted that the principles of sentencing for such offences are well established. The court held that the sentencing judge had considered the relevant principles of sentencing and had taken into account the maximum penalty and the standard non-parole period as important guideposts. The court found that the sentence imposed was not manifestly excessive or unreasonable and that it had been properly arrived at by the sentencing judge. The court also noted that the sentence imposed was appropriate given the seriousness of the offending conduct and the need for specific and general deterrence. The court held that the sentence was not shown to be "unreasonable or plainly unjust" and dismissed the appeal.

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The court found that the sentence imposed was not manifestly excessive or unreasonable and that it had been properly arrived at by the sentencing judge. The court held that the sentence was appropriate given the seriousness of the offending conduct and the need for specific and general deterrence. The court dismissed the appeal and upheld the sentence imposed by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 on a single ground (which was only concerned with the sentence for count 2).The sentence imposed on the applicant was manifestly excessive.Factual background The following facts were agreed. The applicant and the complainant had been in an on/off domestic relationship for a number of years. On Monday, 29 August 2011 the applicant was in the complainant's home drinking alcohol and had become intoxicated. During the afternoon, the complainant received two phone calls on her mobile phone after which the applicant became abusive towards her, calling a "whore" and a "slut". As a result of this abuse, the complainant left and visited a friend, Wayne Parton. She stayed at his place until later that evening, arriving home by bus shortly before midnight. The applicant was still awake and intoxicated when she arrived home. The applicant commenced to abuse the complainant and accused her of having just had sexual intercourse with Wayne Parton. When the complainant denied this and attempted to leave the room, the applicant grabbed her by the shirt and pulled her back into the lounge room. He punched her several times with a closed fist to the face (left eye and left cheek), left breast and leg. He also pulled her hair and bit her on the nose. While assaulting her, he was making threats to kill her and threatened to get his mates to "fuck her from behind". As a result of the assault, the complainant suffered the following injuries: two fractures to the left cheekbone and left eye socket. These injuries were treated without operative intervention by a surgeon. Other injuries included a red bite mark to her nose, scratch marks and tenderness to her left and right neck, bruises and tenderness to her left eye, left cheek, right upper arm, left upper arm, right knee, right upper leg, right shoulder and right hand. There was also tenderness to her left breast, her right lower back, both lower legs and both feet. Those injuries were relevant to Count 1. The complainant picked up her phone to call the police but the applicant knocked it out of her hand and kept it. The complainant then went to her bedroom and lay on her bed. The applicant followed her into the room and continued to accuse her of having sex with Wayne Parton. He spread her legs and forced his left hand inside her tracksuit pants and underpants. He forced his fingers inside her vagina, pulled them out and sniffed them. He told the complainant that he could smell semen and accused her of having had sex with Wayne Parton. He then wiped his fingers on the complainant's face saying "That's cum, that's Wayne Parton's cum you slut, you dog". Those were the facts relevant to Count 2. Over the next hour, the applicant continued to threaten the complainant and he once again forced his fingers into her vagina in a similar fashion, again smelt them and made a comment about smelling semen and wiped his fingers over her face. These were the facts relevant to the Form 1 offence. The complainant said that the verbal and physical abuse continued all night and into the morning and that she was petrified.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

In conclusion his Honour took into account the maximum penalty and the standard non-parole period as important guideposts. He said:"The courts have repeatedly emphasised that violent attacks in domestic settings must be treated with real seriousness. Important factors in sentencing where domestic violence is involved are specific and general deterrence, denunciation of the offending conduct and protection of the community. ..."The applicant received a discount on sentence of 15 percent for his plea of guilty.Submissions and consideration The applicant submitted that the sentence imposed for the s61I offence was unreasonable and plainly unjust. He relied upon the oft quoted passage from Dinsdale v R [2000] HCA 54; 202 CLR 321 where Gleeson CJ and Hayne J said:"6 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." By reference to those principles, the applicant submitted that his Honour erred in not making a more precise assessment of where in the range of objective seriousness this offence lay. He submitted that this was necessary because a standard non-parole period applied to count 2. In that regard, the applicant relied upon R v Stewart [2012] NSWCCA 183. This submission should not be accepted. In its terms it is similar to the approach deprecated by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 where the Court said:"28 Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. ... 29 ... The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. ..."