Sims v The Queen - [2019] NSWCCA 232

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sims v R [2019] NSWCCA 232
Hearing dates: 3 June 2019
Date of orders: 27 September 2019
Decision date: 27 September 2019
Before: Basten JA at [1];
Hamill J at [2];
Lonergan J at [3]
Decision:
(1) Grant the applicant leave to appeal against the sentence imposed on him in the District Court on 21 February 2018.
(2) Dismiss the appeal.
Catchwords: CRIME – sentence appeal – maliciously inflict grievous bodily harm – attempted sexual intercourse without consent in circumstances of aggravation – convictions in 2015 for offences committed in 1996 –failure to accept evidence of rehabilitation – failure to accept evidence of mental illness – manifest excess
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 61J, 61P
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23
Cases Cited: Aoun v R [2011] NSWCCA 284
Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
Peters v R [2013] NSWCCA 324
R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534
Category: Principal judgment
Parties: John Clayton Sims (Applicant)
Regina (Crown)
Representation:
Counsel:
A Evers (Applicant)
J Roy (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/149828
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 February 2018

Before:

Bennett SC DCJ

File Number(s):

2016/149828

Judgment

BASTEN JA: I agree with Lonergan J.
HAMILL J: I agree with Lonergan J.
LONERGAN J: On 18 February 2018, the applicant was sentenced by Judge Bennett SC for crimes he committed in 1996:

Count 1 – maliciously inflict grievous bodily harm with intent to do grievous bodily harm: s 33, Crimes Act 1900 (NSW) – maximum penalty 25 years;

Count 2 – attempted sexual intercourse without consent in circumstances of aggravation being the occasioning of actual bodily harm: s 61J(1), Crimes Act – maximum penalty 20 years penal servitude.

There was a further offence on a Form 1, namely commit an act of indecency.

The offending occurred in the early hours of 9 March 1996 but the applicant was not found by police to have been the perpetrator until a DNA match in late 2015 led to his arrest and extradition from South Australia on 18 May 2016.
The applicant entered guilty pleas in April 2017. Judge Bennett SC imposed an aggregate sentence of 15 years with a non-parole period of 10 years. The indicative sentence for count 1 (taking into account the Form 1 offence) was 13 years and 2 months, and for count 2, 7 years and 8 months. The indicative sentences incorporated a 12% discount for the utilitarian value of the guilty pleas.
The applicant seeks leave to appeal his sentence on 3 grounds:

his Honour erred in finding that there was no evidence of rehabilitation;

his Honour erred in failing to take into account evidence of mental illness;

the sentence was manifestly excessive.

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 Sims v The Queen

Details

AGLC: Sims v The Queen [2019] NSWCCA 232
Case: [2019] NSWCCA 232
Decision Date: 27 September 2019

CaseChat Overview and Summary

Sims appealed against his sentence, imposed following his conviction for maliciously inflicting grievous bodily harm and for attempted sexual intercourse without consent in circumstances of aggravation. The crimes were committed in 1996, and Sims was convicted and sentenced in 2015. He appealed on the grounds that the primary judge failed to give adequate weight to evidence of rehabilitation and mental illness, and that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the primary judge erred in failing to give adequate weight to evidence of rehabilitation and mental illness, and whether the sentence imposed was manifestly excessive. The court noted that the crimes for which Sims was convicted were serious, but that they occurred over twenty years ago. The court also noted that Sims had shown evidence of rehabilitation and had a history of mental illness. The court considered whether these factors should have been given greater weight in determining the sentence.

The court found that the primary judge had failed to give adequate weight to the evidence of rehabilitation and mental illness. The court also found that the sentence imposed was manifestly excessive, taking into account all of the circumstances of the case. The court noted that the sentence should reflect the seriousness of the crimes, but also take into account any mitigating factors. In this case, the court found that the sentence did not adequately reflect the evidence of rehabilitation and mental illness, and was therefore manifestly excessive.

The appeal was allowed, the convictions were affirmed, and the matter was remitted to the Court of Appeal to be re-sentenced. The court noted that the Court of Appeal should take into account all of the circumstances of the case, including the evidence of rehabilitation and mental illness, in determining an appropriate sentence.

Orders