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Sims v The Queen

Sims v The Queen

Case [2022] VSCA 114 15 June 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0070

JASON SIMS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF JUDGMENT:	15 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 114
JUDGMENT APPEALED FROM:	[2022] VCC 571 (Judge Hannebery)

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CRIMINAL LAW – Appeal – Sentence – Standard sentence offences – Engaging in sexual activity in presence of a child – Sexual penetration of child (rolled up charge), supplying drug of dependence to a child, producing child abuse material – TES of 5 years and 6 months, with NPP of 3 years and 6 months – Whether sentence manifestly excessive – Vulnerable victim – Significant age difference – Moral culpability very high – Sentences well open – Leave to appeal refused.

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Counsel
Applicants:		Dr M Fitzgerald
Respondent/s:		Ms M Mahady
Solicitors
Applicants:	Doogue + George Defence Lawyers
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

The applicant pleaded guilty in the County Court to one charge of engaging in sexual activity in the presence of a child,[1] one rolled-up charge of sexual penetration of a child,[2] one charge of supplying a drug of dependence to a child,[3] one rolled-up charge of producing child abuse material[4] and one charge of possessing a drug of dependence.[5]
[1]Contrary to s 49F(1) of the Crimes Act 1958 (‘Crimes Act’).
[2]Contrary to s 49B(1) of the Crimes Act.
[3]Contrary to s 71B(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 51C(1) of the Crimes Act.
[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
On 11 May 2021, the applicant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1

Engaging in sexual activity in the presence of a child under 16

10 years

2 years and 6 months

6 months

2

Sexual penetration of a child under 16

15 years

5 years

Base

3

Supplying a drug of dependence to a child

15 years

9 months

Nil

4

Producing child abuse material

10 years

12 months

Nil

5

Possessing a drug of dependence

1 year and/or 30 penalty units[6]

$500

N/A

Total Effective Sentence:

5 years and 6 months

Non-Parole Period:

3 years and 6 months

Pre-sentence Detention:

45 days

Section 6AAA Statement:

6 years and 3 months, with a non-parole period of 4 years and 6 months

[6]Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 provides for this maximum penalty, where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking.

The applicant now seeks leave to appeal against sentence. His proposed ground of appeal is that the ‘sentences on charges 1 and 2, as well as the total sentence and non-parole period, are manifestly excessive’.
For reasons which follow, we would refuse leave to appeal.

Circumstances of offending

At the time of the offending, the…

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 [2022] VSCA 114
Case: [2022] VSCA 114
Decision Date: 15 June 2022

CaseChat Overview and Summary

Sims was found guilty of multiple serious offences against a child, including engaging in sexual activity in the child's presence, supplying a drug of dependence to the child, and producing child abuse material. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. The key issue before the court was whether the sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months, was manifestly excessive.

The court examined the nature of the offences and the vulnerable position of the victim, along with the significant age difference between the offender and the child. It also considered the offender's high level of moral culpability. The court held that the sentences were well within the range of penalties that could be imposed for such serious offences and that the sentence imposed was not manifestly excessive. The court also noted that the offender had a history of offending and had shown a lack of remorse.

Accordingly, the High Court dismissed the appeal against sentence. The court concluded that the sentence was appropriate given the gravity of the offences and the circumstances surrounding the case. The offender's appeal was refused, and the original sentence was upheld.

Orders