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, 23Cases 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 534Category: Principal judgment Parties: John Clayton Sims (Applicant)
Regina (Crown)Representation: Counsel:
Solicitors:
A Evers (Applicant)
J Roy (Crown)
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
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BASTEN JA: I agree with Lonergan J.
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HAMILL J: I agree with Lonergan J.
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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.
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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.
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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.
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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.
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- AGLC
- Sims v The Queen [2019] NSWCCA 232
- Case
- [2019] NSWCCA 232
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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