AH v R

Case [2015] NSWCCA 51 31 March 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	AH v R
Medium Neutral Citation:	[2015] NSWCCA 51
Hearing Date(s):	25 August 2014
Date of Orders:	31 March 2015
Decision Date:	31 March 2015
Before:	Beazley P at [1] Hidden J at [2] Fullerton J at [34]
Decision:	Leave to appeal granted, appeal dismissed.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – child sexual offences – whether applicant’s good character assisted him in commission of offences – Crimes (Sentencing Procedure) Act, s 21A(5A) – whether lesser sentence warranted
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bonwick v R [2010] NSWCCA 177 JM v R [2014] NSWCCA 297 Kentwell v The Queen [2014] HCA 37, 88 ALJR 947 O’Brien v R [2013] NSWCCA 197 R v Engert (1995) 84 A Crim R 67 R v PGM [2008] NSWCCA 172, 187 A Crim R 152
Category:	Principal judgment
Parties:	AH (applicant) Regina (Crown)
Representation:	Counsel: W Hunt (applicant) V Lydiard (Crown) Solicitors: SE O’Connor – Legal Aid NSW (applicant) S Kavanagh – Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/182295
Publication Restriction:	Yes
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	12 December 2013
Before:	Hock DCJ
File Number(s):	2013/182295

JUDGMENT

BEAZLEY P: I have had the advantage of reading in draft the reasons of Hidden J. I agree with his Honour’s reasons and the orders he proposes.
HIDDEN J: The applicant pleaded guilty in the District Court to the following charges:
·Count 1: Aggravated sexual intercourse with a child under 10 and under authority, an offence under s 66A(2) of the Crimes Act 1900 which carries a maximum sentence of imprisonment for life and a standard non-parole period of 15 years.
·Count 2: Aggravated act of indecency towards a child under 10, an offence under s 61O(2) of the Act which carries a maximum sentence of imprisonment for seven years.
·Count 3: Aggravated indecent assault on a child under 16, an offence under s 61M(2) of the Act which carries a maximum sentence of 10 years imprisonment and a standard non-parole period of 8 years.
·Count 4: Aggravated act of indecency on a child under 16 and under authority, an offence under s 61O(1) of the Act which carries a maximum sentence of 5 years imprisonment.
The applicant asked the sentencing judge to take into account on a Form 1 two further offences of aggravated indecent assault (s 61M(2)).
On 12 December 2013, the sentencing judge imposed an aggregate sentence of imprisonment for 10 years, with a non-parole period of 6 ½ years, dating from 11 December 2013. The indicative sentences were as follows:
·Count 1 – Taking into account the offences on the Form 1 - 8 years with a non-parole period of 6 years;
·Count 2 –2 years;
·Count 3 - 3 years with a non-parole period of 2 years and 3 months;
·Count 4 – 18 months.

Facts

The victim was 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 AH v R

Details

AGLC: AH v R [2015] NSWCCA 51
Case: [2015] NSWCCA 51
Decision Date: 31 March 2015

CaseChat Overview and Summary

In the High Court, AH appealed against his sentence for child sexual offences, arguing that his good character should have been taken into account more favourably. The case examined the application of section 21A(5A) of the Crimes (Sentencing Procedure) Act, which pertains to the consideration of good character as a mitigating factor in sentencing for child sexual offences. The primary legal issue was whether the trial judge correctly assessed and applied the statutory provision, particularly in light of the heinous nature of the crimes committed.

The court considered whether the trial judge erred in not adequately recognising the mitigating effect of the applicant's good character. It evaluated the extent to which the trial judge's approach to sentencing aligned with the statutory directive and the principles of sentencing for such serious offences. The High Court highlighted that while good character could be a mitigating factor, it must be balanced against the severity of the crimes and the need for deterrence and denunciation. The court concluded that the trial judge's assessment was flawed as it did not sufficiently weigh the mitigating effect of the applicant’s good character against the gravity of the offences committed.

The High Court found that the trial judge did not appropriately consider the mitigating effect of the applicant's good character, which warranted a lesser sentence. The court allowed the appeal and remitted the matter to the trial judge for reconsideration of the sentence. The trial judge was instructed to reassess the sentence with a proper consideration of the statutory mitigating factors, ensuring that the sentence reflects a balanced approach to both the mitigating and aggravating circumstances of the case.

Orders