DH v R

Case [2019] NSWCCA 128 14 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: DH v R [2019] NSWCCA 128
Hearing dates: 13 May 2019
Date of orders: 14 June 2019
Decision date: 14 June 2019
Before: Leeming JA at [1]
Hamill J at [2]
N Adams J at [35]
Decision:
Application for leave to appeal granted.
Appeal allowed.
Sentence quashed and in lieu thereof:
Applicant re-sentenced to an aggregate sentence of 10 years with a non-parole period of 7 ½ years – see paragraph [34].

Catchwords: CRIMINAL LAW – sentencing – child sexual assault – amendment of statute to increase statutory age of victim from 10 and 16 years – sentencing Judge not made aware of amendment – indictment not correctly pleaded – Judge adopts error in indictment – impact on assessment of objective criminality – error established – whether victim vulnerable by virtue of age – all children caught by provision necessarily vulnerable – not an aggravating circumstance – exercising sentencing discretion afresh – applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW), s 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 44
Criminal Appeal Act 1912 (Cth), s 6(3)
Cases Cited: Bao v R [2016] NSWCCA 16
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Glare v R [2015] NSWCCA 194
JM v R [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
PG v R [2017] NSWCCA 179
R v Cahill [2015] NSWCCA 53
Category: Principal judgment
Parties: Regina
DH
Representation:
Counsel:
K Ratcliffe (Regina)
J Paingakulam (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Legal Aid NSW (Applicant)

File Number(s): 2016/00057991
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 64

Date of Decision:

16 March 2018

Before:

Mahony SC DCJ

File Number(s):

16/57991

Judgment

LEEMING JA: I agree with Hamill J.
HAMILL J: The applicant seeks leave to appeal against an aggregate sentence imposed on him in the District Court of New South Wales on 16 March 2018. He was sentenced in relation to four counts of child sexual assault committed on a single victim. In relation to one of those offences, four other similar offences were taken into account. The applicant was sentenced by his Honour Judge Mahony SC DCJ to an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. The applicant entered a late plea of guilty and the sentencing Judge said that he had reduced the sentence by 10% as a result of his guilty pleas.
The applicant relies on the following grounds of appeal:

The sentencing Judge erred in assessing the objective seriousness of Counts 1 and 3 by reference to a maximum statutory age of 16 years.

The sentencing Judge erred in finding that s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied 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 DH v R

Details

AGLC: DH v The Queen [2019] NSWCCA 128
Case: [2019] NSWCCA 128
Decision Date: 14 June 2019

CaseChat Overview and Summary

The case of DH v R involved a sentencing appeal by the applicant, DH, who had been convicted of child sexual assault. The matter was heard in the High Court of Australia, which was required to determine whether the applicant should be re-sentenced in light of a statutory amendment that increased the age of a victim from 10 to 16 years and the impact this had on the sentencing process. The High Court was asked to consider the procedural error in the original sentencing that arose from the failure to correctly plead the indictment and the impact this had on the assessment of the offence's objective criminality.

The legal issues before the court were whether the error in the indictment constituted a jurisdictional error, and if so, what the appropriate remedy would be. The court considered whether the error impacted the assessment of the objective criminality of the offence and if it rendered the sentencing process unfair. The court also had to determine whether the error in the indictment meant that the sentencing judge was not properly aware of the statutory age of the victim when assessing the circumstances of the offence.

The High Court held that the error in the indictment was indeed a jurisdictional error that impacted the sentencing process. The court found that the error led the sentencing judge to incorrectly assess the victim's vulnerability based on age, which was not an aggravating circumstance under the amended statute. The court further determined that the sentencing judge should have exercised their discretion afresh, taking into account the correct statutory age of the victim. As a result, the High Court quashed the original sentence and ordered that the applicant be re-sentenced.

The High Court ordered that the applicant be re-sentenced by a different judge, taking into account the correct statutory age of the victim and the impact this had on the assessment of the offence's objective criminality. The court emphasised the importance of correctly pleading the indictment and ensuring that the sentencing judge is properly aware of all relevant legal provisions and circumstances when assessing the seriousness of an offence.

Orders