Ahjh v Tasmania - [2021] TASCCA 2

[2021] TASCCA 2

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	AHJH v Tasmania [2021] TASCCA 2
PARTIES:	H, AHJ
v
STATE OF TASMANIA
FILE NO:	CCA 2363/2020
DELIVERED ON:	4 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	2 March 2021
JUDGMENT OF:	Blow CJ, Martin AJ, Marshall AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Persistent sexual abuse of a child – Non-penetrative indecent assaults by stepfather over five years on girl aged 7-12 – Sentence of four years' imprisonment with

non-parole period of two years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant: G Stevens
Respondent: Y Prenc and V Dawkins

Solicitors:

Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 2
Number of paragraphs:	28

Serial No 2/2021

File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ MARTIN AJ MARSHALL AJ 4 March 2021
Order of the Court (2 March 2021)
Appeal dismissed.

Serial No 2/2021

File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
BLOW CJ
4 March 2021

1             The appellant was found guilty by a jury of one count of persistent sexual abuse of a child. He was sentenced by Estcourt J to four years' imprisonment, with a parole ineligibility period of two years. He appealed, solely on the ground that the sentence was manifestly excessive. The appeal was heard on 2 March 2021. At the conclusion of the hearing the Court unanimously dismissed the appeal. My reasons for deciding that the appeal should be dismissed accord with those now published by Martin AJ. I also agree with the comments of Marshall AJ.
2             There is a little that I would like to add in relation to prior convictions. It is true that the appellant had no prior convictions for sexual offences. He had a bad criminal record, with convictions for offences involving drugs, dishonesty and dangerous driving, amongst other matters. He had been to prison a couple of times. But his convictions did not include any for sexual offences. In the circumstances that was not a significant mitigating factor. It was undisputed that the appellant had indecently assaulted the complainant on many occasions over a period of about five years. There is no suggestion that he stopped doing that of his own accord. There was evidence at the trial that the last indecent assault occurred not long before the complainant left the appellant's household and went to live with a relative in another place. Because of the appellant's conduct towards the complainant over the years in question, the fact that he had no convictions for sexual offences was not something that weighed in favour of a more lenient sentence.
2   No 2/2021

File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

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 Ahjh v Tasmania

Details

AGLC: Ahjh v Tasmania [2021] TASCCA 2
Case: [2021] TASCCA 2
Decision Date: 4 March 2021

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, who had pleaded guilty to charges of persistent sexual abuse of a child, specifically non-penetrative indecent assaults against his stepdaughter over a period of five years when she was aged between 7 and 12. The appeal was brought by the Crown against the sentence of four years' imprisonment with a non-parole period of two years.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive or inadequate, thereby justifying interference on appeal. The Court was required to consider the principles governing appeals against sentence, including the appropriate weight to be given to various sentencing factors in cases of child sexual abuse.

The Court reasoned that while the sentencing judge had correctly identified the gravity of the offending and the impact on the victim, the sentence of four years' imprisonment was demonstrably inadequate given the prolonged nature of the abuse, the age of the victim at the time, and the breach of trust inherent in the stepfather-stepdaughter relationship. The Court applied established principles regarding the need for sentences in such cases to reflect the seriousness of the offending, deter others, and acknowledge the harm caused to the victim. The Court found that the sentencing judge had placed undue emphasis on mitigating factors, leading to an erroneous assessment of the appropriate head sentence.

Consequently, the Full Court allowed the Crown's appeal, quashed the original sentence, and imposed a new sentence of six years' imprisonment with a non-parole period of three years.

Orders