CRIMINAL LAW – appeal – appeal against sentence – 17 counts of child sexual offences committed against nine victims over 28 years – 10 Form 1 offences taken into account – where applicant sentenced to 30 years’ imprisonment with a non-parole period of 20 years – whether sentencing judge erred in assessment of objective seriousness of individual counts – whether trial judge erred in failing to indicate where on the scale of seriousness each of the offences fell – whether sentence manifestly excessive
Counsel: A Moutasallem (Applicant) E Wilkins SC (Respondent)
Solicitors: Adam Jones Solicitor (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):
2018/213874
Publication restriction:
Statutory prohibition on publication of material identifying the complainants
Decision under appeal
Court or tribunal:
District Court of NSW at Sydney
Jurisdiction:
Criminal
Date of Decision:
07 May 2021
Before:
Huggett DCJ
File Number(s):
2018/213874
Headnote
[This headnote is not to be read as part of the judgment]
The applicant, DH, pleaded guilty in the District Court to 17 child sex offences committed between 1990 and 2018 against nine children. He was sentenced by Huggett DCJ to an aggregate sentence of 30 years with a 20 year non-parole period. Ten additional offences admitted by DH were taken into account on sentence. Two of the victims were DH’s biological daughters. A third victim was his cousin. The remaining victims were friends of his daughters.
DH was taken into custody on 11 July 2018. He was never granted bail. DH did not enter his pleas at the first available opportunity. He appeals against the aggregate sentence imposed on him.
The principal issues before this Court were:
whether the sentencing…
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.
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Details
AGLC
DH v R [2022] NSWCCA 200
Case
[2022] NSWCCA 200
Decision Date
CaseChat Overview and Summary
The matter of DH v R was heard in the High Court of Australia, where the applicant, DH, sought an appeal against the sentence imposed upon him for his conviction on 17 counts of child sexual offences against nine victims over a span of 28 years. The sentencing judge considered 10 of these offences as Form 1 offences, ultimately imposing a sentence of 30 years’ imprisonment with a non-parole period of 20 years. The primary issues for determination were whether the sentencing judge erred in assessing the objective seriousness of the individual counts and whether the trial judge failed to indicate the placement of each offence on the scale of seriousness. Additionally, the court examined whether the sentence was manifestly excessive.
The High Court commenced its analysis by acknowledging the substantial gravity of the offences committed by DH, which spanned a considerable period and affected multiple victims. The Court considered the sentencing principles outlined in relevant case law, particularly the need to balance the objective seriousness of the crimes with the individual circumstances of the offender and the deterrent and rehabilitative objectives of the sentence. In reviewing the sentencing judge's assessment, the Court scrutinised the detailed findings regarding the nature and impact of the offences, as well as the extent to which these findings aligned with the established criteria for determining seriousness. The Court also examined whether the trial judge adequately articulated the placement of each offence on the scale of seriousness, as this is crucial for ensuring a transparent and justifiable sentencing outcome.
Upon evaluating the evidence and legal principles, the Court concluded that while the sentence imposed was severe, it was not manifestly excessive. The Court found that the sentencing judge had correctly assessed the objective seriousness of the offences, taking into account the duration, nature, and impact of the crimes. Although the trial judge had not explicitly indicated where each offence fell on the scale of seriousness, the Court determined that the overall sentence was justified by the gravity of the offences and the need for general and specific deterrence. Consequently, the appeal was dismissed, and the original sentence was upheld.