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[2025] NSWDC 217
General information, not legal advice.
District Court of NSW
2025-04-02
Haesler SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Simmonds [2025] NSWDC 217
Hearing dates: 2 April 2025
Date of orders: 2 April 2025
Decision date: 02 April 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision: Aggregate sentence of imprisonment of 9 years with a non-parole period of 5 years 6 months
Catchwords: CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Child sex offences — Child abuse material — Production — Aggravated use child <14
CRIME — Drug offences — Supply prohibited drug — Adult supply
SENTENCING — Mitigating factors — Plea of guilty to Count 1 — Prior good character
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Proportionality
SENTENCING — Sentencing procedure — Instinctive synthesis — sentence after trail — full benefit of acquittals — fact finding
SENTENCING — Subjective considerations on sentence — Drug use — Voyeuristic Disorder — Health issues
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Akkawi v R [2012] NSWCCA 11
Bell v R [2019] NSWCCA 251
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Clarkson v R [2011] VSCA 152
Hoare v The Queen (1989) 167 CLR 348
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Doan (2000) 50 NSWLR 115
R v Gavel [2014] NSWCCA 56
R v Geddes (1936) 36 SR (NSW) 554
R v Herring (1956) 73 WN (NSW) 203
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v Simmonds (District Court (NSW), 15 March 2024, unrep)
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Van Ryn [2016] NSWCCA 1
R v Wheeler [2000] NSWCCA 34
R v Windle [2012] NSWCCA 222
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Sampson v R [2025] NSWCCA 25
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
Usaia v R [2023] NSWCCA 57
Wakeling v R [2016] NSWCCA 33
Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168
Zreika v R [2012] NSWCCA 44
Category: Sentence
Parties: Daryl Simmonds
Representation: Counsel:
B Hart (for the offender)
N Keay (for the Crown)
Solicitors:
Kells Your Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)
File Number(s): 2022/328625
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child
Daryl Simmonds was charged with 11 serious offences, or their alternates, resulting from a sexual encounter with a 13 year old girl on 30 October 2022. He came for trial at Wollongong District Court on 17 February 2025. At the beginning of the trial Simmonds accepted his guilt in relation to the first count, supplying the girl with cannabis. In relation to each other count he either denied the event, that is supplying gamma hydroxybutyrate (‘GBL’), or a critical element of a count, taking advantage of the fact that the child was under the influence of a drug. He admitted each act of sexual intercourse except what was alleged in Count 5, an allegation of penile / anal intercourse.
The events all occurred in Simmonds’ home, much of what occurred was recorded by hidden cameras, including acts of intercourse with the child. At the insistence of the defence, the Crown tendered, and the jury watched the whole of that recording. In evidence, Simmonds said he could not have known the complainant was aged under 16. He was not believed.
In her police interview the complainant said she told Simmonds she was 15. This statement was contested at trial. The jury did however give him the benefit of the doubt and acquitted him of Count 5, the anal intercourse count, the supply GBL count, and the sexual intercourse counts, that had as an aggravating circumstance, that he took advantage of a child under the influence of a drug. He must have the full benefit of those acquittals.
In accordance with the jury verdicts the following counts are for sentence today:
Count 1, supply prohibited drug, namely cannabis: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1).
Count 2, supply prohibited drug, namely methylamphetamine to a person under the age of 16 by a person above the age of 18: Drug Misuse and Trafficking Act, s 25(1A).
Alternative Counts 4, 6, 7, 8, 9 and 10, each involve sexual intercourse with a child above the age of 10 and below the age of 14: Crimes Act 1900 (NSW), s 66C(1).
Count 11, use a child to make child abuse material, with the aggravating circumstance he took advantage of the complainant being under the influence of a drug in order to commit the offence: Crimes Act, s 91G(3).
The verdict for Count 11 had as an aggravating element that Simmonds took advantage of the complainant being under the influence of a drug in order to commit the offence. So too did the original Counts 4, 6, 7, 8, 9 and 10. The jury acquitted of each of Counts 4, 6, 7, 8, 9 and 10 but found the accused guilty of the Alternative Counts that did not have that specific element of aggravation. The jury also acquitted of two other counts, Counts 3 and 5.
The verdicts are not irreconcilable. The evidence for Counts 4, 6, 7, 8, 9 and 10 were substantially consistent the video recording of what occurred in the bedroom. It was open for the jury to find that while the child had used illicit drugs, Counts 1 and 2, he did not take advantage of her intoxication because what was shown in the recording did not show her obviously drug impaired.
There is no doubt however that Simmonds recorded what occurred in the bedroom. There was no evidence in the prosecution case the child knew what was being recorded. There is no evidence that Simmonds ever made her aware of the fact that there was a camera in the bedroom. He said in evidence that she must have known there was because there was external video surveillance and CCTV at the premises which she saw on the monitor. That evidence did not answer the question.
Count 11 required proof that the child was under the influence of drugs which she undoubtedly was. In my assessment of the evidence, she was unaware of the recordings being made and was thus her intoxication was taken advantage of so Simmonds could produce what was undoubtedly child abuse material. The events here did not fit the more common fact scenario where the child is induced to participate in the production of child abuse material because they are intoxicated.
There was no evidence in the prosecution case the child knew what was being recorded. There is no evidence that Simmonds ever made her aware of the fact that there was a camera in the bedroom. He said in evidence that she must have known there was because there was external video surveillance and CCTV at the premises which she saw on the monitor. That evidence did not answer that question.
The offences for sentence carry the following maximum penalties:
Count 1, s 25(1) Drug Misuse and Trafficking Act, 10 years imprisonment.
Count 2, s 25(1)(a) Drug Misuse and Trafficking Act, 15 years imprisonment but by operation of s 33A Drug Misuse and Trafficking Act, the available maximum penalty is increased to 18 years.
Alternative Counts 4, 6, 7, 8, 9 and 10, s 66(1) Crimes Act offences carry a maximum penalty of 16 years imprisonment and a 7 year non-parole period.
Count 11, charged pursuant to s 91G(3) Crimes Act has a maximum penalty of 20 years imprisonment.
Both the maximum penalties, and where they apply, standard non-parole periods are guides for the exercise of my sentencing discretion. They convey Parliament’s view of the relative seriousness of an offence. Context should always be given in any sentencing exercise to a standard non-parole period.
When I consider objective circumstances, and particularly where a standard non-parole period applies, I take into account only objective factors affecting the relative seriousness of the offence when assessing where it may fall in some notional range of seriousness.
The plea to Count 1 came late. I am required to reduce the sentence to the indicated for that offence by 5%. I am told by the Court of Criminal Appeal that that reduction must be arithmetically accurate.
A sentencing judge is obliged to provide the discount stipulated in s 25D Crimes (Sentencing Procedure) Act 1999 (NSW), even if inconvenient because the discount involves part of a month: Sampson v R [2025] NSWCCA 25 at [49]. I note that that judgment appears to be contra to an earlier decisions of the Court of Criminal Appeal. I am in favour of orthodoxy, and I still take the view that it is poor practice to specify dates as fractions of a month: Usaia v R [2023] NSWCCA 57 at [41]. Akkawi v R [2012] NSWCCA 11 at [110]-[111]. I will specify as directed by Samson the exact sentence to be applied, but when it comes to the ultimate sentence imposed, I follow the principle that sentencing is neither strictly logical nor capable of reduction to small, precise mathematical units.
The ultimate sentence imposed is arrived at by a process of intuitive synthesis: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. That process does not preclude “specific numerical or proportional allowances [being made] by the sentencer”: Markarian at [24]. But in sentencing there are no “golden rules”: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]. A judge in their undoubted discretion can even out any sentence ultimately imposed or indicated as part of an aggregate sentence because of discretionary factors other than the purely utilitarian aspect of the plea. This rule is subject to the overriding principle that no one must serve a day longer in custody than any statutory provision allows.
Simmonds was born in 1977. In October 2022 he was living in his home in a suburb of Wollongong. The child complainant was then aged 13. She was out at night with friends visiting a house nearby. A distressing incident occurred at that house. The child was waiting in the street for friends who were in the home. She approached Simmonds and ask he intervene with his neighbour. He did what he could but to no avail. He offered the child the opportunity of waiting for her friends at his house, rather than waiting in the street. He also offered her a smoke of cannabis. She was young, she was vulnerable because she was out at night, and he offered her cannabis. Her vulnerability is not inconsistent with the acquittals noted.
She went back to his home. The home has external CCTV that can be viewed from a monitor in the lounge. The child was able to watch it to see if her friends walked by.
What Simmonds did not tell the child was that he had placed a camera inside his home, one in the lounge and the other over a cupboard in his bedroom. The camera in the bedroom recorded everything that occurred in the bedroom while the lights were on. The recording shows multiple acts of sexual touching and sexual intercourse between the accused and the child who was then 13. Those images are captured by Count 11.
The child told police she had limited memory about what occurred that night and morning. She could remember only snippets of what occurred.
The accused in evidence gave a version of events. It is obvious from the verdicts that the jury did not base their decision on his version, nor, unless corroborated, by what the complainant said. It appears the jury acted on what was revealed in the video recordings. In my determination of the facts for sentence, consistent with the jury’s verdict, I will do the same.
The child arrived at Simmonds’ home in the evening of 31 October 2022. She left about 9am the next morning. Soon after she left, she complained of being drugged and sexually assaulted. It is not in dispute that over the time she was at Simmonds’ home the child was offered and smoked several “cones” of cannabis from a “bong” made from a small milk bottle. It appeared she was able to help herself to that cannabis.
The lounge room recording video also shows Simmonds smoking from a glass pipe. He offered it to the child, and she is seen to smoke from it on one occasion. Blood and urine taken from the child the following afternoon on analysis showed that both methylamphetamine and cannabis were detected.
Counts 4, 6, 7, 8, 9 and 10 all occurred in the bedroom. All are clearly shown in the video.
The child went and lay on the accused’s bed. Simmonds entered and removed his trousers. The child does not appear to be reluctant; no force was used although at the time Simmonds slapped the child’s buttocks. At times she appears to actively participate in what was occurring, although at other times she appears to tire and be very slow in her movements. No condom was used. All of the acts would have involved a potential for exchange of bodily fluids.
A sentence must be proportionate to the crime committed. An assessment of the objective seriousness of each offence is essential in setting the parameters of the ultimate sentencing outcomes. A sentence of imprisonment should never exceed that which can be justified and is appropriate and proportionate to the gravity of the offence considered in the light of all of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at [354]; Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [125].
I start this sentencing exercise with a statement of fundamental principle. Every act that involves the sexual exploitation of a child is a serious crime. There is an absolute prohibition on sexual activity with a child. That principle is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.
This principle is one important reason for the high maximum penalties and high standard non-parole periods fixed for such matters.
I also start with some basic principles that apply to all the offending. The child was young. She was alone in the offender’s home. He was an adult. He had invited her to his home knowing she was distressed about what had occurred at his neighbour’s house. He supplied her with cannabis and methylamphetamine. Those drugs must have had some effect on her, making her vulnerable generally.
I am acutely aware of the De Simoni principles: The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Simmonds must have the full benefit of his acquittals of the substantive charges that had, as elements, that he took advantage of her being under the influence of a drug. The key words are, as Madam Crown pointed out, “took advantage of”. That element, not having been proved cannot be taken into account.
There is no hierarchy of seriousness of the kinds of sexual intercourse. Of course, the nature of the intercourse must be considered, but it does not necessarily determine objective seriousness. This matter is a good indicator of why judges apply that principle.
Each act here involved the physical violation of the child. I regard each act as equivalent to the other. While often penile / vagina intercourse is regarded as more serious because of the risk of pregnancy and disease, so pervasive were the offender’s actions towards the child and so extensive was his physical contact with her, that those risks were still operative for each act particularised as a count and subject of convictions, because in each bodily fluids would have been exchanged.
I take into account in relation to each matter, that each act was not brief, each involved considerable physical contact between two naked people. She was 13, he was 44. She was at the midpoint of the age range encompassed by the offence although closer to the age 14; he was a stranger who had invited her into his home when he found her distressed, and she was additionally vulnerable as indicated above.
Again I note that I must give Simmonds the full benefit of the acquittals on the take advantage element to each count, and accordingly, take great care not to infringe the De Simoni principles. I will base my assessment on what can be seen on the video. I sentence on the basis that the child did not appear to actively oppose what was being done to her, nor did he appear to force her to do anything that was depicted. Objectively given the matters that I have indicated, each as is accepted was a serious example of their type. A submission was made that the offender thought she was 15. His evidence does not support that conclusion, nor would it in any event, substantially mitigate
The absence of an aggravating feature does not strictly mitigate the seriousness of s 66C offences, but it still remains relevant in assessing the relative seriousness of an offence: Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. I prefer what is sometimes called the “better approach” that on the issue of “consent” the Court can take into account the fact that each act of sexual intercourse was “non-oppositional”: Bell v R [2019] NSWCCA 251 at [32]-[33]. But I repeat what Basten J said in Nelson v R [2016] NSWCCA 130 at [25]:
“Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences…”
The offender exploited a young and vulnerable child to obtain images for his own prurient interest. I cannot find he had any other rationale for doing so, but there is no evidence that he did, or intended that, it be distributed to others.
The child was in his home as a guest. He went to some trouble to secrete the camera. It was directed at the bed and the recording was at some stage moved to a USB stick. The recording lasts nearly two hours. The child was unaware it was being made. Her drug use contributed to that ignorance, and to that extent he took advantage of her.
When it comes to that aggravating circumstance, and noting the significant penalty of 20 years imprisonment this matter can, as I indicated earlier, be contrasted with matters where the child being under the influence enables the child to be moved or manipulated or induced to engage in production of such material. Here the aggravating circumstance consistent with the jury’s verdicts could only be that he took advantage of her drug use making her totally unaware that what had occurred was being recorded. While it is of itself a serious offence to make the material, the aggravating circumstance adds little to it.
It is rare now for a person to be charged with supplying or sharing a pipe or ‘bong’ with another. The seriousness of Count 1 lies in the fact that Simmonds was an adult and he offered drugs to a child. That she appears to have some prior experience with cannabis use does not excuse his behaviour. She smoked a fair bit of it that night from what I was able to observe. Her age and vulnerability require a custodial sentence.
Count 2 is more serious and the odd, and apparently duplicitous, increase in maximum penalty provision applies: ss 25(1)(a), 33AA and 33. Those extra elements require close consideration. I cannot treat any one drug more serious than the other, except cannabis which has different maximum penalties applied to it than other drugs. I must give weight to the age of the child and the dangers inherent in anyone of that age being given, and then using, an illicit drug. I do not know the amount supplied but it seems it was relatively modest, the child tasted it and chose not to repeat its use, despite being offered more. It requires for obvious reasons a custodial sentence.
When this offence occurred, apart from a 2013 traffic matter which I disregard, Simmonds had no offences on his record. He is entitled to the leniency often given those without a criminal record. He is also entitled for me to have regard to him as a person for prior good character up until he started offending in the other intentionally record matter which is the subject of Judge Harris’ judgment: R v Simmonds (District Court (NSW), 15 March 2024, unrep).
In June 2023, while on bail for these matters, he was arrested for a firearms offence. An aggregate sentence of 2 years and non-parole period of 2 years was imposed. On 4 February 2025 I dismissed the conviction appeal for those matters but varied the sentence and fixed concurrent fixed terms of imprisonment of 12 and 4 months. I dated those sentences from 6 June 2023. I gave the offender the benefit of considerable concurrence on those firearms matters with the sentence imposed by Judge Harris.
Turning to those matters, when he was arrested for these matters, police also found items stored on his electronic devices. As a result, he was charged with intentionally recording 11 images without consent: Crimes Act, s 91P. On 15 March 2024 he was sentence to 18 months imprisonment with a non-parole period of 11 months. He served the non-parole period of that sentence from 2 June 2023 to 1 May 2024. He thus received, as I have said, a considerable advantage of those two sentences being served, effectively, concurrently.
A review with the help of counsel of charge dates and gaol and criminal records indicated that there was a further period, seven days, between when he was arrested for this matter and released to bail on 8 November 2022. It was not credited in those earlier matters. I will take them into account, as I must: Crimes (Sentencing Procedure) Act, s 24.
Those matters are relevant to the commencement date of this sentence. I will consider of questions of totality of sentence, I will refer to that in a moment. Having regard to those principles, I propose to commence this sentence on 29 May 2024.
I received personal references from family and friends. I also have a report from Mr McLean, psychologist, that had been prepared for, but was not tendered before Judge Harris. It is dated 12 March 2024.
Simmonds personal history is uncontroversial. He was born in 1979. He has loving and supporting parents. They support him still. They have been in Court throughout these proceedings when the Court was open.
He was well behaved at school, but it appears he did not take to schooling. He may have been bullied, and he certainly was not a good student. He left at 17 to do an apprenticeship and completed qualifications at TAFE.
He suffers from asthma, and he has arthritis, both of which can be managed. He was married for 15 years and has children. He used, regularly, alcohol and methylamphetamine. It would appear his use of methylamphetamine increased after his marriage breakup which was traumatic for him.
He told Mr McLean that he used methylamphetamine and GHB to enhance his sexual pleasure.
He has strong support from prosocial members of the community and his family. They were shocked and confused by these allegations. Prior to his offending, commencing in 2022 it appears he was regarded as a person of good character, someone who looked out for others, a man who is described as kind-hearted, loved and respected.
Simmonds has worked all his adult life, but it would appear his world seemed to disintegrate following his separation and divorce. There are expressions of shame and guilt and that methylamphetamine use, in particular, may have contributed to his lack of thought and the impulsivity of his actions, there being no suggestion, apart from the placing of the camera, that any of these matters were premeditated.
There were, and are, expressions of shame and guilt in the material before me. It is clear, and I accept, that he regrets the harm he has caused his family, but in the material before me I could detect no indication of remorse for his victim. He appears, still, from the reports and his evidence, to minimise his criminal activity.
I note at this stage that there was no Victim Impact Statement from the child complainant. The absence of a Victim Impact Statement does not allow me to draw a conclusion that no harm was suffered by her.
In his report, Mr McLean, after review and testing, found that Simmonds shows a pattern of voyeuristic behaviour and might meet the criteria for a Voyeuristic Disorder. He noted that this behaviour did not appear to cause Simmonds shame or guilt, but he did show some insight into that condition.
Mr McLean also noted signs of psychological distress. They appeared more associated with exposure of his offending, his charges, the fact he was in gaol and the problems he had caused to himself and to his family. They are entirely consistent with a person of prior good character being placed in gaol and placed before the courts, but I take them into account. There is no evidence of any underlying pathology other than his voyeuristic behaviour and his drug use. There is evidence to support his having a substance abuse problem for which he requires continuing assistance.
I have to indicate an appropriate sentence for each offence and then structure the aggregate sentence so that overall, it is just and appropriate to the crimes for sentence today and the matters upon which I intend to accumulate it: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].
I have to, as I have said, estimate the overall criminality involved, and if necessary, make adjustments to indicated sentences. I have, in that regard, also taken into account the appropriate date as to when these matters are to commence and the benefit that I previously gave Simmonds of considerable concurrence of those other matters: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).
Public confidence in the administration of justice requires sentencing courts to avoid any suggestion that there are discounts given for multiple offences, particularly where they are separate and discrete: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].
There must be accumulation of this penalty on the earlier sentences, with appropriate allowance for uncredited time spent in custody. That accumulation is one reason for a finding of special circumstances .
As to the matters for sentence today, while each count involves discrete acts of criminality they had many common features, particularly the sexual intercourse with child charges. There must be a considerable concurrence between those charges. But each were discrete crimes and none were brief, and each occurred over that period of about one and a half hours. The other matters for sentence also involved discrete acts of criminality, although connected in time, place and methodology with the other matters.
The purposes of sentencing apply to each and those purposes overlap. The sentences should be, and will be, partly cumulative however to reflect the individual criminality, but the aggregation, as I said, must be just and appropriate to the totality of the criminality of what occurred that night and morning: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at [307]-[308]; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. Ultimately, there must be effective punishment for each act even though they followed successively one upon the other throughout what was a deliberate course of criminal behaviour: R v Wheeler [2000] NSWCCA 34 at [36]-[37].
Synthesising all those matters, I have to take into account all material facts, some aggravate, some mitigate. As I said earlier, and there are no golden rules: R v Geddes at [555]-[556]; Markarian at [65].
Giving weight to the conflicting purposes of punishment, that is taking into account the case for the offender and the need for punishment here requires a balance. Ultimately in matters such as this, the Court, while it will give such weight as it can to the case for the offender, has to impose sentences in relation to each matter. The aggregate sentence and the terms of the sentences indicated (even for Count 1, which is the least serious of the matters before the Court) should tell the community that behaviour against a child in the various ways that he offended against the child cannot, and will not, be tolerated.
The sentence must make the offender and others know what can occur should they commit similar crimes in the future: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. The sentence should also reflect the community’s distaste and repugnance for offences of this type when committed against children and should, so far as any sentence can, attempt to vindicate the dignity of the child complainant in this matter.
Count 1 takes into account a plea of guilty which came late of 5%. All other matters he gets the benefit of the jury’s verdict, but there is no reduction for pleas of guilty. There is some individual and overall reduction for 22A factors which do not need to be formulated in any specific way. The sentence commences effectively a year after he went into custody making an effective total sentence time in custody of 10 years with minor adjustments; on 29 May 2024, with an allowance of 7 days remand not credited.
I have to indicate an individual sentence for each matter, and where a standard non-parole period occurs, a non-parole period of the indicated sentence. The indicated sentences are:
Count 1 – Supply a prohibited drug, cannabis, a sentence of 3 months and 18 days imprisonment.
Count 2 – Supply prohibited drug, methylamphetamine, person under 16, a sentence of 1 year imprisonment.
Alternative Count 4 – Sexual intercourse with a child under the age of 14, 4 years, 6 months imprisonment, non-parole period 2 years and 9 months. The same penalty is applied consistent with this judgment in relation to Alternative Counts 6, 7, 8, 9 and 10.
Count 11 – Use a child under the age of 14 to make child abuse material and take advantage of her being under the influence of a drug, 2 years and 6 months imprisonment.
The term of the aggregate sentence is 9 years. The non-parole period of the aggregate sentence is 5 years and 6 months. A non-parole period of 5 years and 6 months. It will commence on 29 May 2024, that is an allowance of 7 days not credited. He is eligible for consideration for release to parole on 28 November 2029. The parole period of 3 years and 6 months commences on 29 November 2029. The sentence will be completed on 28 May 2033.
**********
R
Simmonds [2025] NSWDC 217
(1988) 166 CLR 59
(1997) 189 CLR 295
(2001) 206 CLR 267
Count 11 required proof that the child was under the influence of drugs, which she undoubtedly was. In my view, that meant she was unaware of the recordings being made and was thus taken advantage of to produce what was undoubtedly child abuse material.
Simmonds was convicted of two drug supply offences. The first related to cannabis, Count 1, and the second, supplying methylamphetamine. He was acquitted on Count 3, of supplying GBL, cannabis and methylamphetamine were detected in the child’s urine and blood, samples having being taken at Wollongong Hospital. No GBL was detected.
The video shows the child smoking from a glass pipe and smoking from a ‘bong’. It was not in dispute at trial that glass pipes and ‘bongs’ are used to smoke, respectively, methylamphetamine and cannabis.
Not everything that occurred inside the house was recorded on video. Although paraphernalia associated with GBL use was later found by police, there are no images of the child taking this drug. The acquittal in this count is consistent with my assessment the jury focused not on what the child said in evidence, but what was depicted on the video recordings or the expert certificate.
The bedroom video shows the accused positioned behind the child and moving a hand around her rear and the other hand on his penis. The is no image of actual penetration occurring. While it is possible an act of anal intercourse, Count 5, occurred as the police say it had, the video has her in a different position than what she told the police.
The jury acquitted of the Count 5; anal penetration allegation. The acquittal on this count is consistent with my assessment that the jury focused not on what the child said, but what was depicted in the recording. It would appear that the jury relied upon the objective evidence from the recording and drug analyst certificates and relied upon those to corroborate accounts given by the child. It is clear that they appeared to focus more on that objective evidence rather than what was said by the child or Mr Simmonds.
The acts of intercourse, the subject of the alternative counts for which he was found guilty, are not in dispute and were not put in dispute. Between 2.20am and 4.01am the video records the following acts:
Multiple acts of penile / vaginal intercourse accompanied by kissing and licking of the child’s exposed breast.
The first act of penile / vaginal intercourse is captured by Alternative Count 4.
After touching the child’s vagina, the accused performed cunnilingus on the child: Alternative Count 6.
The two left the bedroom and went to the bathroom. On their return Simmonds digitally penetrated the child’s vagina: Alternative Count 7.
He left and returned with a glass of clear liquid which the child drank. Soon after he lay on his back and the child performed oral intercourse on him: alternative count 7.
Other acts of penile / vaginal intercourse then occurred as does another act of cunnilingus and digital penetration of the child’s vagina.
The accused then produced a vibrator and sex toy handcuffs and ankle restraints. All were used on the child. She does not appear to resist. The vibrator penetrated her vagina: Alternative Count 9.
Simonds then offered the child an ‘ice’ pipe, she refused it. He offered her the ‘bong’ and it appears she smoked more cannabis. The last sexual act involved digital penetration of the child’s vagina shortly before the bedroom light was turned off at about 4.12am. That is Alternative Count 10.
Mr McLean recommended that on release Simmonds receive drug screening, cognitive behaviour therapy, and that he engage in a mental health treatment plan. He also noted that there are features in his behaviour such as impulsivity and an antisocial personality pattern, but there is no indication he meets the threshold for any Antisocial Personality Disorders or Psychopathy.
Mr McLean put Simmonds’ behaviour down to his increased drug use, and particularly the use of ‘ice’. He noted that he did not appear, when using drugs, to consider the emotional impact of his behaviour on others.
Given his prior good character, his capacity to work in the community, it would appear that a combination of drug use and some underlying voyeuristic condition had an impact adversely on his prior good moral compass. That would also have been impacted on by the stress of his divorce.
His drug use and drug abuse cannot, and does not, excuse his offending behaviour. It does however enable me to understand the man for sentence and to structure the sentence so that community protection can be enhanced by supervision and monitoring in the community on release.
He will be a registered sex offender, that is not a matter I can take into account on sentence, but the community can take some comfort from the fact that that registration is designed to prevent further offending.