Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: AH v R [2020] NSWCCA 279 Hearing dates: 7 August 2020 Date of orders: 2 November 2020 Decision date: 02 November 2020 Before: Macfarlan JA at [1]
Fullerton J at [2]
Button J at [93]Decision: 1. Leave to appeal is granted.
2. The appeal against sentence is upheld.
3. Quash the aggregate sentence imposed in the District Court on 6 September 2019 and in lieu thereof impose an aggregate sentence of 11 years’ imprisonment commencing on 9 April 2015 and expiring on 8 April 2026 with a non-parole period of 7 years expiring on 8 April 2022.
Catchwords: CRIME – appeals – appeal against sentence – 20 counts comprising 16 counts involving the sexual assault or indecent assault of two children under the age of 14 and 16 and 4 counts involving the use of a child for pornographic purposes or the production of child pornography – whether sentencing judge failed to take into account (properly or at all) mitigating factors – whether sentence breached totality principles – whether sentence manifestly excessive
Legislation Cited: Crimes Act1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Imbornone v R [2017] NSWCCA 144
Category: Principal judgment Parties: AH (Applicant)
The Crown (Respondent)Representation: Counsel:
Solicitors:
I McLachlan (Applicant)
D Patch (Crown)
Watsons Solicitors (Applicant)
Solicitor for Public prosecutions (Crown)
File Number(s): 2008/8475 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 6 September 2019
- Before:
- Hunt DCJ
- File Number(s):
- 2008/8475
Judgment
-
MACFARLAN JA: I agree with Fullerton J.
-
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the aggregate sentence imposed by Hunt DCJ on 6 September 2019 after pleas of guilty were entered on 14 August 2019 to an indictment containing 20 counts. Sixteen counts were laid contrary to ss 61M(1), 61O(1) and 66C(2) of the Crimes Act1900 (NSW), each involving the sexual assault or indecent assault of two children under the age of 14 and 16, and four counts involving either the use of a child for pornographic purposes or the production of child pornography contrary to ss 91H(2) and 91G(1)(a) of the Crimes Act.
-
The offences on the indictment comprehended events extending over a period of approximately twelve months between January and December 2006.
-
Some of the offences on the indictment had been committed to the District Court for trial prior to the pleas of guilty being entered while other offences were laid ex officio. This accounts for the differences in the allowance made for the pleas of guilty. No issue was taken with that approach.
-
A Form 1 containing three offences pursuant to s 91G(1) of the Crimes Act and three offences pursuant to…
Continue reading AH v The Queen
Sign in free to access the full text
- AGLC
- AH v The Queen [2020] NSWCCA 279
- Case
- [2020] NSWCCA 279
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court were whether the sentencing judge failed to properly consider mitigating factors, whether the sentence breached the principles of totality and whether the sentence was manifestly excessive. The court was required to consider the nature of the offences, the appellant's criminal history, and the mitigating factors presented. The court also had to consider the appropriate sentence for the offences and whether the sentence imposed was appropriate in light of the totality principle and the appellant's criminal history.
The High Court found that the sentencing judge had considered the mitigating factors but had given insufficient weight to them. The court also found that the sentence breached the principles of totality as it did not take into account the cumulative effect of the offences. The court found that the sentence was manifestly excessive as it did not reflect the appropriate balance between punishment and deterrence. The court reduced the sentence imposed by the sentencing judge and ordered a re-sentencing hearing.
The High Court ordered that the appellant's sentence be reduced and that a re-sentencing hearing be held to determine an appropriate sentence that takes into account the totality principle and the mitigating factors presented. The court did not specify the exact sentence to be imposed but provided guidance on the factors that should be considered in determining an appropriate sentence. The court emphasised the importance of considering the totality principle and mitigating factors in sentencing decisions involving serious sexual offences against children.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.