AH v The Queen - [2020] NSWCCA 279

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
Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37
Porter v R [2019] NSWCCA 117

Category: Principal judgment
Parties: AH (Applicant)
The Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
D Patch (Crown)
Solicitors:
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…

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 The Queen

Details

AGLC: AH v The Queen [2020] NSWCCA 279
Case: [2020] NSWCCA 279
Decision Date: 02 November 2020

CaseChat Overview and Summary

The appellant was convicted and sentenced to a lengthy prison term for various counts of child sexual assault and the production of child pornography. The appellant appealed the sentence imposed by the sentencing judge, arguing that the judge failed to properly consider mitigating factors and that the sentence breached the principles of totality and was manifestly excessive. The appeal was heard by the High Court of Australia.

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