R v Simons

The charges

1. Simons was initially charged with a number of offences. When the matter was before the Local Court, she indicated that she would plead guilty to one offence of sexual intercourse with a child aged under the age of 10 (domestic violence): Crimes Act 1900 (NSW), s 66A(1). That offence is said to have occurred between 4 March 2020 and 31 December 2022, but I proceed on the basis that at least 13 seconds of the offence are depicted in the recording that was made on 5 March 2020.
2. The offence carries a maximum penalty of life imprisonment. A standard non-parole period of 15 years applies. The maximum penalty and the standard non-parole period are important guides to the exercise of my sentencing discretion. In any sentencing exercise content should be given to the standard non-parole period. Both convey Parliament's view of the relative seriousness of the offence. I note that the maximum penalty is the highest maximum penalty a court can impose. It was increased from 25 years in 2015.

Form 1

1. When she was before the Local Court the offender also accepted her guilt in relation to two other matters: 1. Use child under 14 years to make child abuse material: Crimes Act, s 91G(1). 2. Possess child abuse material between the date it was created in 2020 and when the phone was seized by police in 2021: Crimes Act, s 91H(2).
2. It was agreed that those two offences be placed on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. They will be taken into account when I sentence for the principal offence.
3. In any sentencing exercise all the relevant factors must be synthesised. In determining the sentence for the primary offence, motive is relevant to the assessment of the objective seriousness of that offence. The offence for sentence was committed so that the video could be taken. I have to be very careful not to double count matters already taken into account. That offence's objective seriousness is related to, and impinged on, by the commission of the Form 1 'use child' offence. It is impossible to parse that offence from the offence for sentence as its facts are intrinsic to my consideration of objective seriousness of the offence for sentence.
4. The video was however kept, another crime that must be taken into account on the Form 1, but not sentenced for. That possession continued until 2021. Some increase in the matter for sentence is required because of the period over which it was possessed and available to be seen by others. The phone was able to be accessed by a child although there is no evidence the child saw the video recording. However, from what appears in the Agreed Facts, there is a strong suspicion that it was viewed by John.
5. While I do not sentence for that offence an increase in penalty is required for the matter for sentence. It requires greater weight be given to the need for personal deterrence and retribution for that crime: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42]. To avoid double counting of matters intrinsic to the sentencing exercise before me, the increase here will be modest.

Guilty Plea

1. A guilty plea was entered in the Local Court. That plea requires me to reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of the plea. The plea has other significance. It meant that there was no trial. It meant that the child was not subject to further investigation of the matter and saved from significant additional stressors: R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].

Objective seriousness

1. I must identify all the factors relevant to the sentence, discuss their significance and make a value judgment about the appropriate sentence to impose: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. It is accepted that the offending was so serious that a custodial sentence of some length is required. That sentence must be proportionate to what was done.
2. The objective seriousness of the particular offending must be determined. While courts should not engage in a staged approach to sentencing, this finding is essential to setting the parameters of the appropriate sentence. It must be determined in the light of the entirety of the facts and circumstances before the Court.
3. The starting point for an offence of this nature is simple - there is an absolute prohibition on any sexual activity with a child. That important principle is strictly enforced. It is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.
4. It follows that every act that involves sexual interference with a child is serious and will be treated seriously by the courts. The guidance offered by the maximum penalty and standard non-parole period make that absolutely clear.
5. When assessing the objective seriousness of the matter, I was assisted by the submissions of both Ms Keay, for the Director of Public Prosecutions, and Ms Doosey, counsel for the offender. Some of the matters said to go to objective serious are also set out as aggravating features in s 21A(2) Crimes (Sentencing Procedure) Act. I am acutely aware that undue reliance on s 21A(2) can create the false impression that there has been double counting of matters that might aggravate penalty. I have sought not to do so.
6. I have regard to the following: 1. The character of the sexual assault, the act of fellatio; 2. The degree of physical contact inherent in it; 3. The time over which it occurred, at least 13 seconds. It is impossible for me to discern whether it was any longer than that; 4. Motivation is an important factor; 5. That there would have been some limited planning so the recording could be made; 6. That the offence occurred in the child's home, where he was entitled to feel safe and protected; 7. The was age differential between the perpetrator and the child; 8. That the child was six years old. The middle of the age range encompassed by the offence from a baby through to ten; generally the younger the child the more serious is the offence; and 9. Here, most importantly, I have regard to the relationship of the perpetrator to the child. This offence involved a gross breach of trust. A child in the hands of their mother is particularly vulnerable. The offence occurred while he was with a person who he looked to for care and protection, not abuse.
7. For myself, I do not find assessments by reference to a notional range of objective seriousness at all helpful. A judge's subjective assessment of a supposed objective measure offers little assistance. For example; in another case involving, tragically similar allegations, four experienced judges, myself included, expressed their conclusions using different adjectives and made different conclusions about where the offence fell on a notational scale: JP v R [2015] NSWCCA 267.
8. Here, however both parties put submissions to me about where in the "range" the offence lay. In such circumstances, I have a duty to resolve the dispute: Owen v R [2022] NSWCCA 214. Ms Doosey suggested that this offence fell, taking into account only objective features, in the "lower realm" of what is very serious offending. Ms Keay responded that this was an objectively extremely serious offence, justifying the descriptor - "extremely grave".
9. I accept it was grave offending. In my assessment, it falls below some notional mid-range but that is by reference to objectives factors for what is a very serious offence; so serious that it carries the highest possible maximum penalty. My reason for so finding is that many common aggravating features for such offences were absent here. I note: 1. It was a single offence that was not part of a pattern of offending, which is frequently a feature of matters such as this; 2. It was clearly a 'one off' and not repeated and the offender voluntarily desisted from further offending; 3. It did not appear to have gone on for long; and 4. The offence was committed without accompanying threats or intimidating behaviour. There is no evidence that any effort was made to coerce or threaten the child to prevent his disclosure.
10. That said, my assessment of objective seriousness is only one factor that must be synthesised. I do not start with the standard non-parole period and oscillate about it by making proportional deductions from it.

Victim impact

1. The absence of a Victim Impact Statement does not give rise to an inference the offence had little or no impact: Crimes (Sentencing Procedure) Act, s 30E.
2. The child's disclosure was traumatic, as the facts reveal. The disclosure has led to a separation of the child from his mother.
3. The child's family, including the offender, have done everything possible here to turn and focus on the child's recovery rather than preparing for court. In my experience if you turn down the volume and do not do things to magnify the trauma you will not amplify the symptoms that flow from child abuse. The parties are commended for doing that.

Other factors

1. The offender does not have a criminal history. There is nothing to suggest that the absence of a criminal record enabled the offending. Past behaviour is a good indication of future behaviour. This appears to have been a 'one-off' offence. She voluntarily desisted. What occurred was never repeated.

Case for the offender

1. Simons wrote a letter to the Court. She also gave evidence. She said she took full responsibility for what she did. She wrote: "I will live with the deep pain and regret of what I have done to my beautiful son for the rest of my life. I will never ever not feel remorse for what I've done … The hardest part of my life by far has been losing custody of my children and not being able to have any contact with them since I was arrested."
2. She was asked if she could explain why she did what she did and whether she had any understanding of the harm she had done. She had trouble articulating her response. Having reviewed the offender's evidence, I accept Ms Doosey's submission that Simons appears to understand the gravity of her offending and recognises its impact, but still struggles to articulate it.
3. She was asked to explain why she did what she did. And why she failed to recognise the impact of her crime on her child and her family. She responded: "I don't understand who that person was … I don't know her anymore … I don't know. It disgusts me what I did. I'm not that person. I can't wrap my own head around what I did …"
4. She said she struggled to put into words the horrible impact of what she did. She was unable to articulate or explain the impact of having been herself abused as a child. She accepts she will have to go to gaol. She asks that God give her the opportunity to do any courses or get any help that is offered to her.
5. I have the benefit of references from family and people who know her. I have the benefit of a report from forensic psychologist Dr Fritchley and from treating psychologist, Dr Sidhu. Simons has also seen the Illawarra Drug and Alcohol Service and I have a report from that service.
6. Most of her history is uncontroversial. She was born in 1975 to a good Christian family. She had a good relationship with her family who were still supportive, but they struggle to understand what she has done or why she did it. There were some stressors when she was a teenager. She reports being sexually abused by a family member; a matter she told her parents about.
7. She needed to move schools but after she did, she did well. She went to TAFE and later competed a degree which enabled her to qualify as a schoolteacher. She worked as a primary school teacher. She married and had children. She took time off to raise her children and then worked casually as a teacher; something she will never be able to do again.
8. The evidence before me indicates she suffered from post-natal depression and anxiety. At the time she was living in country New South Wales with four young children. She saw a GP for treatment. At times she engaged with a Mental Health Team. At times her marriage had difficulties and at times she drank too much. That behaviour corresponded wither having symptoms of depression.
9. She told the report writers of what she called her "open relationship" and also her depression. There is evidence in the material before me she fell victim to online scammers. There is still some controversy in the history given as she made limited disclosure about the history of her relationship with 'John'.
10. Since her arrest and brief period in gaol, there have been significant changes. She has re-engaged with her church. She has seen the Illawarra Drug and Alcohol Service. She has commenced regular counselling and has begun therapy with a psychologist, Dr Sidhu.
11. It is difficult for me (and I suspect anyone) to understand how she could have done what she did, no matter what pressure might have been placed upon her or how much she was impacted on by alcohol. She made no attempt to justify what she did. I accept she still struggles to understand what she did.
12. Most objective measures indicate she is a prosocial person. The reports indicate she has some understanding of the gravity of her offending. Dr Fritchley's report is comprehensive. She speculates that 'John' validated her sense of self at a period when her self-esteem was very low. Her testing and examination found no evidence of deviant interests that would otherwise account for what she did.
13. Dr Fritchley said the offending coincided with increased and significant alcohol use, that in turn, caused of considerable conflict in her family. She notes a number of continuing stressors in her life and depressive symptoms from when she was young. She diagnoses a Major Depressive Disorder.
14. She says there is a positive prognosis if Simons receives treatment that involves pharmacotherapy and psychotherapy: par [68]. Dr Fritchley says she is at low risk of reoffending, but notes that statistically all female sex offenders are at low risk because it is an offence rarely committed by women. She says there are many protective factors in her past and that she has future support available. She notes that Simons "is a woman of sound intelligence with reflective capacity" and some insight.
15. She tried to answer the 'why' question: par [47] and [48] in her report: "Ms [Simons] said the offences before the court occurred within the context of her relationship with John. She described him as, 'having power over me', saying that she was highly focused upon pleasing him. It appears that over time Ms [Simons] began to increasing rely on contact with John and his attention as a way to regulate her own emotions. She said that when he paid her attention and was happy with her this then improved on her own mood, and she came to depend on his attention as a way to regulate her own emotions. Ms [Simons] said at the time the offences occurred she was dependent upon alcohol, drinking throughout the day and her mood was highly distressed and anxious. Overall, she described herself as emotionally distressed and overwhelmed during the time the offences occurred. She said she was trying to hold up a façade by focusing upon how she looked and trying to present an image of having it together but inside she was 'spiralling out of control'. She did state that she gained validation and pleasure from providing John something he would be happy with …. it also appears her alcohol dependence at the time of the offending impaired her judgement. Ms [Simons] stated she did not gain any sexual pleasure or gratification from her offending behaviour, rather expressed a deep sense of shame and disgust at herself as well as an intense regret about the impact her offences had upon her children. She said because of the disgust she felt towards herself she had attempted to 'bury it' and suppress memory of her offending behaviour."
16. She notes that she still experiences extreme distress.

Diminished moral culpability

1. Her poor mental health has to be taken into account. There is evidence here before me about Simons' underlying mental illness. A mental illness can ameliorate an offender's moral culpability. So too can the fact they were also the victim of childhood trauma caused by sexual abuse: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; Nasrallah v R [2021] NSWCCA 207.
2. A reduction in a person's moral culpability reduces the need to denounce the crime. It can, in some circumstances, make the offender an inappropriate vehicle for general deterrence. It can mean a significantly greater burden associated with a custodial sentence: De La Rosa. There will be burdens associated with the custodial sentence, particularly in getting treatment for underlying conditions.
3. The diagnosis of Major Depressive Disorder that has been continuing for some time, helps explain why her moral compass was askew. I accept Simons' moral culpability may be less than others who do not have this disorder. However, she was fully cognisant that what she was doing was wrong, as she confessed very soon afterwards. While it does reduce the need for general deterrence, that reduction can only be a very modest one.

Alcohol use

1. That she committed the offences while using alcohol to excess and while I accept the expert report that she was doing so as a "maladaptive coping mechanism" for her mental health and relationship problems, the use of alcohol cannot mitigate her offending or excuse her offending in any way.
2. The fact the problem existed, its consequence, how it came about, what is to be done about it, are relevant. They help explain why she did what she did. It is relevant here because her attempts to overcome it impact on her prospects. It also helps me understand that at the relevant time her capacity to exercise sound judgment was reduced.
3. She did admit that she had done the wrong thing to her husband and friend. She did not disclose to law enforcement authorities, although she allowed them to keep, and then test, her phone which contained, as they later found, evidence of the offence.

Remorse

1. Although this matter does not fall within s 23 Crimes (Sentencing Procedure) Act it is relevant in reduction of penalty that a person voluntarily confesses their criminality to family members. And that confession leads, as it did here, to the child's disclosure to police. Her confession was backed up by her guilty plea and her acceptance of responsibility in her evidence today. All provide powerful evidence of remorse; which in turn goes to her positive prospects for rehabilitation and the unlikelihood of further offending.
2. There are many factors, not just the evidence today, which enable me to conclude her remorse was genuine. The wrongness of her actions was confessed within months. That occurred not out of fear of consequence of discovery. She will have full weight given to that remorse.

Good character

1. Her remorse is also relevant to her prior good character. No statutory exception applies here. Her prior good character must be taken into account on sentence: Ryan v The Queen [2001] HCA 21; 206 CLR 267.
2. For some types of offences prior good character carries less weight than for others. Much depends on the circumstances of the offending. There are exceptions to the rule, but they generally involve sexual offending for sexual gratification where children were groomed: R v PGM [2008] NSWCCA 172 152 at [43]-[44]. This is not such a case. I will give full weight to her prior good character. It is also an indication as to her prospects for the future.

The impact of custody

1. Dr Fritchley, at par [69] notes, "a term of imprisonment would likely result in serious deterioration in Ms [Simons'] mental health and her access to support networks and appropriate treatments would be reduced". She also notes that "incarceration has the potential of exposing [her] to negative peer influences to which she may be vulnerable". She has previously been vulnerable to such negative influences.
2. I do not underestimate the lived experience of gaol. Gaol will be hard for her. She had done what she can to prepare herself for that inevitable gaol sentence.
3. Dr Sidhu makes the point that before Simons can fully engage in treatment, she needs to "feel safe". It needs to be stated, no one feels safe in gaol. Gaol will impede her progress to rehabilitation.
4. The evidence before me indicates that, as I was already aware, that there are no sex offender specific treatments available for women in New South Wales gaols at present. It is unlikely any will be made available to her in the future. She has made good progress with the treating psychologist, Dr Sidhu. That progress will be impeded as that treatment cannot be provided to her in custody.

Loss and detriment

1. There have been loss and detriment here, extreme, even well if deserved. She suffered a high level of distress upon her separation from her children. She is aware that her younger children are suffering from the loss of their mother although they are being well cared for by a family member. That loss and determent occurred, as a direct result of the commission of this offence. Although she brought it on herself, she still continues to suffer from it. I will take it into account: R v Allpass (1993) 72 A Crim R 561; R v Clampitt-Wotton (2002) 37 MVR 340, R v Daetz (2003) 139 A Crim R 398.

Structure

1. The material here, including the offender's concerted efforts at rehabilitation, will be given full weight. Simons will need help on release adjusting to normal community life. She will not be able to obtain sex offender's specific treatment in custody and that means her progress to rehabilitation and dealing with her own childhood problems will be delayed. These matters justify a significant finding of special circumstances. That finding however, is qualified. There is still a requirement that the minimum period for which the offender, if she is kept in custody, must properly reflect the gravity of the offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Other cases

1. I have had regard to other cases of this Court, including my own, and the Court of Criminal Appeal. The guidance offered by appellant courts is always welcome. There is a useful summary of s 66A matters in Merkel v R [2019] NSWCCA 212 and JP v R [2015]. My review takes into account the fact that the maximum penalty increased in 2015.
2. Judges should strive for the consistent application of sentencing principle, but sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence is never precisely the same as in past cases: Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [46]; applying Hili v The Queen [2010] HC 45; (2010) 242 CLR 520.

Submissions

1. Ms Keay and Ms Doosey provided comprehensive written submissions to the Court. I have utilised them in this judgment where there were no significant differences between them in matters of principle. Where there were differences, I have sought to resolve them.

Synthesis

1. There are many matters here that have to be considered, some aggravate, some mitigate. There are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at 555-556; Markarian at [65]. The purposes of punishment are conflicting. There is a need here to impose a sentence that signals to everyone in the community the seriousness of what occurred. There is a need to let others who are tempted to offend as this offender did the retribution that will fall upon them if they commit similar crimes. This is a very significant factor. There are many nuances to this protective aspect of sentencing.
2. Sentencing courts also have an obligation to vindicate the dignity of any victim of crime and particularly in a case such as this, express the community's disapproval of the offending.
3. Although others have to understand the consequence of behaving as she did, there is no need here to protect the community further from this offender. It is unlikely Simons will offender again. She stopped offending of own volition.
4. Her moral culpability was impaired by depression but there is no hint of any sexual deviant interests. She has been in treatment. She will continue in treatment after her release. Her treatment needs will be impeded while she is custody.
5. This offending involved short incident in an otherwise blameless life. But short though it was, it had potentially devasting impacts on her son. It was a serious crime, a grave crime, a crime that carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. There is no way of minimising each of the critical elements of the crime. This crime involved an act of intercourse with a child by his mother. The child was as vulnerable as is possible to be. It was done with full awareness of the child for a base motive - to impress a lover.
6. Human behaviour and human characteristics are varied. Judges have to try and synthesise all competing features in an attempt to translate the complexity of the human condition and human behaviour to mathematics usually expressed in time in gaol: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629.
7. I will give mitigating factors appropriate weight. They cannot be allowed to lead to an imposition of a penalty which is disproportionate for the gravity of the offence. A significant factor is general deterrence. It can be met by the head sentence. Other matters are taken into account, so far as the length of the sentence is concerned and in the finding of special circumstances.

Orders

1. Taking into account the matter on the Form 1 and the plea of guilty, there will be sentence of 6 years imprisonment.
2. The non-parole period of 3 years will date from 23 October 2024. The offender will be eligible for consideration for release to parole on 22 October 2027. The balance of the sentence of 3 years will commence on 23 October 2027 and expire on 22 October 2030. Total sentence 6 years.
3. Release to parole will be subject to a determination by the State Parole Authority.
4. The reports of Dr Fritchley, Dr Sidhu and Ms Ragusa should be forwarded with the warrant to Community Corrections. A copy of the offender's medical note is also to be provided to Corrections.

High-Risk Offender caution

1. Ms Simons you will now be classified as a High-Risk Sex Offender. It is important that you understand that if you do not cooperate with the authorities, you may not be released to parole. If you do not cooperate in any rehabilitation program, it is possible that additional conditions could be placed upon you either when you are on parole, and more importantly, after service of your sentence. I hope that warning is not necessary in your case. All the material before me indicates that you will cooperate with the authorities.

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