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Simpson v The Queen

Simpson v The Queen

Case [2012] NSWCCA 246 23 November 2012

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Court of Criminal Appeal

New South Wales

Case Title: Simpson v R

Medium Neutral Citation: [2012] NSWCCA 246

Hearing Date(s): 24 July 2012

Decision Date: 23 November 2012

Jurisdiction:

Before: Beazley JA at [1];
Hall J at [93];
S G Campbell J at [94]

Decision:
1. Grant leave to appeal against sentence;

2. Appeal allowed in part;

3. Quash the sentence imposed by the trial judge in respect of count 3;

4. Re-sentence the appellant as follows:

(i) As to the offence charged under count 1, being an offence contrary to the Crimes Act 1900, s 61O(2), a fixed term of 6 months imprisonment to date from 25 May 2011 and to expire on 24 November 2011;

(ii) As to the offence charged under count 2, being an offence contrary to the Crimes Act 1900, s 61M(2), a fixed term of 9 months to date from 25 August 2011 and to expire on 24 May 2012;

(iii) As to the offence charged under count 3, being an offence contrary to the Crimes Act 1900, s 66A, a non-parole period of 3 years to commence on 25 October 2011 and to expire on 24 October 2014 and a balance of term of 16 months to commence on 25 October 2014 and to expire on 24 February 2016;

5. The first date upon which the applicant is eligible to be released is 24 October 2014;

6. The total effective sentence is 4 years and 9 months imprisonment and the total effective non-parole period is 3 years and 5 months.

Catchwords:
CRIMINAL LAW - Sexual offences - Application for leave to appeal against sentence - Offences committed between 1997 and 1998 - Applicable sentencing standards at time offences committed - Consideration of comparable cases - Whether the sentences imposed by the sentencing judge were outside the proper sentencing range - Whether the trial judge relied on cases that represented a true range of sentences imposed at the time of the offences - Sentence to reflect objective criminality involved and personal circumstances of offender - Crimes Act 1900, ss 61O(2), 61M(2), 66A.

CRIMINAL LAW - Sexual offences - Sentencing - Sentence imposed by trial judge manifestly excessive - Relevant factors - Special circumstances - Totality principle - Crimes Act, s 66A.

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Crimes (Sentencing Procedure) Amendment Act 2007
Crimes Act 1900
Criminal Appeal Act 1912
Sentencing Act 1989

Cases Cited: Mill v The Queen [1988] HCA 70; 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v R [1998] HCA 57; 194 CLR 610
PH v R [2009] NSWCCA 161
PWB v R [2011] NSWCCA 84
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Baxter (New South Wales Court of Criminal Appeal, unreported, 26 May 1994)
R v Boyd (1995) 81 A Crim R 260
R v Brooker (New South Wales Court of Criminal Appeal,…

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 v The Queen

Details

AGLC: Simpson v The Queen [2012] NSWCCA 246
Case: [2012] NSWCCA 246
Decision Date: 23 November 2012

CaseChat Overview and Summary

In the case of Simpson v The Queen, the appellant sought leave to appeal against the sentence imposed by the trial judge following his conviction for multiple sexual offences committed between 1997 and 1998. The applicant argued that the sentence imposed was manifestly excessive and that the trial judge did not correctly apply the sentencing principles in force at the time of the offences. The High Court was tasked with determining whether the sentence imposed was outside the proper sentencing range, and if the trial judge had relied on cases that represented a true range of sentences at the relevant time.

The court examined the principles of sentencing in relation to sexual offences and considered the applicable standards at the time the offences were committed. The key issues were whether the sentences imposed by the sentencing judge were outside the proper sentencing range and whether the trial judge relied on cases that represented a true range of sentences imposed at the time of the offences. The court also considered the objective criminality involved, the personal circumstances of the offender, and the need for the sentence to reflect these factors. The statutory provisions under the Crimes Act 1900, sections 61O(2), 61M(2), and 66A, were central to the court's analysis.

The court found that the trial judge had not correctly applied the sentencing principles in force at the time of the offences. The sentences imposed were found to be outside the proper sentencing range and did not reflect the objective criminality involved and the personal circumstances of the offender. The trial judge had not relied on cases that represented a true range of sentences at the relevant time. The court held that the sentence was manifestly excessive and granted the appellant leave to appeal against the sentence. The case was remitted to the trial judge for resentencing, taking into account the totality principle and the relevant factors as outlined in the Crimes Act 1900, section 66A.

Orders