Simmons v R [2019] NSWCCA 20

Simmons v R [2019] NSWCCA 20

Ground 1 failed because the sentencing judge had taken the applicant's subjective circumstances, including youth, Aboriginality, vulnerability in custody, rehabilitation prospects and background, into account, and there was no evidence or submission below that youth or disadvantaged background caused underdeveloped emotional or impulse control reducing moral culpability. Ground 2 succeeded because, although each indicative sentence was within the sentencing discretion, the implicit accumulation in the aggregate sentence of 18 years with a 12 year non-parole period produced a sentence that was manifestly excessive; an aggregate sentence of 15 years with a non-parole period of 10 years was...

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to 15 years imprisonment with a non-parole period of 10 years.
Legal Topics
['aggravated Sexual Assault' 'manifest Excess' 'youth and Subjective Circumstances' 'disadvantaged Background' 'aggregate Sentence' 'non Parole Period']
['criminal Law' 'sentencing'] ['aggravated Sexual Assault' 'manifest Excess' 'youth and Subjective Circumstances' 'disadvantaged Background' 'aggregate Sentence' 'non Parole Period']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred in his approach to the applicant's subjective circumstances, particularly youth and disadvantaged background." 'Whether the aggregate sentence of 18 years imprisonment with a non-parole period of 12 years was manifestly excessive.']

Ratio Decidendi

Ground 1 failed because the sentencing judge had taken the applicant's subjective circumstances, including youth, Aboriginality, vulnerability in custody, rehabilitation prospects and background, into account, and there was no evidence or submission below that youth or disadvantaged background caused underdeveloped emotional or impulse control reducing moral culpability. Ground 2 succeeded because, although each indicative sentence was within the sentencing discretion, the implicit accumulation in the aggregate sentence of 18 years with a 12 year non-parole period produced a sentence that was manifestly excessive; an aggregate sentence of 15 years with a non-parole period of 10 years was...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to 15 years imprisonment with a non-parole period of 10 years.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed.' 'The sentence imposed in the District Court on 26 April 2017 is quashed and in lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 10 years commencing on 2 August 2015 and expiring on 1 August 2025 and a balance of term of...