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DH v The Queen

DH v The Queen

Case [2017] NSWCCA 64 7 April 2017

Sentencing

Breach of Contract

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DH v R [2017] NSWCCA 64
Hearing dates: 14 March 2017
Date of orders: 07 April 2017
Decision date: 07 April 2017
Before: Hoeben CJ at CL at [1];
Garling J at [2];
Beech-Jones J at [3]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.

Catchwords: CRIME – SENTENCING – domestic violence – aggregate sentence of 5 years imprisonment with non‑parole period of 3 years imposed – break and enter with intention to commit serious offence – contribution of indicative sentence to aggregate sentence – whether sentencing judge erred in assessing objective seriousness of offence – whether sentence manifestly excessive – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
John Walsh Ngati v R [2008] NSWCCA 3
Martin v R [2011] NSWCCA 188
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
PD v R [2012] NSWCCA 242
R v Fahda [2013] NSWCCA 86
R v John Dechellis [2002] NSWCCA 88
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Shaw, Jason Robert v R [2008] NSWCCA 58
SHR v R [2014] NSWCCA 94
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: DH (Applicant)
Regina (Crown)
Representation:
Counsel:
R Rodger (Applicant)
N Adams (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/239551
Decision under appeal

Court or tribunal:

2015/239551

Jurisdiction:

Criminal

Date of Decision:

21 April 2016

Before:

Robison DCJ

File Number(s):

2015/239551

Judgment

HOEBEN CJ at CL: I agree with Beech-Jones J.
GARLING J: I agree with the orders proposed by Beech-Jones J for the reasons which he gives.
BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by his Honour Judge Robison DCJ for a number of domestic violence offences. The Applicant, DH, is referred to in this judgment by his initials because to identify him would facilitate the identification of a child who has been the victim of a crime.
On 9 December 2015, the Applicant entered pleas of guilty to three charges. The first charge alleged that on 11 August 2015 he assaulted his former partner, KE, contrary to s 61 of the Crimes Act 1900. The second charge alleged that on 16 August 2015 he assaulted his mother‑in‑law, BW, contrary to the same provision.
The third charge alleged that on 16 August 2015 he broke and entered KE’s premises with the intention to commit a serious indictable offence namely intimidate BW in circumstances of aggravation…

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 The Queen

Details

AGLC: DH v The Queen [2017] NSWCCA 64
Case: [2017] NSWCCA 64
Decision Date: 07 April 2017

CaseChat Overview and Summary

The matter of DH v The Queen involved the sentencing of the appellant, DH, who was convicted of multiple offences including break and enter with intention to commit a serious indictable offence. The sentencing judge imposed an aggregate sentence of five years imprisonment, with a non-parole period of three years. The appellant contested the sentence, arguing it was manifestly excessive and that the sentencing judge erred in assessing the objective seriousness of the offence. The appeal to the court was about whether the aggregate sentence was excessive and whether the sentencing judge erred in the assessment of the seriousness of the offence and its contribution to the aggregate sentence.

The central legal issues in the appeal were the assessment of the objective seriousness of the offence and the contribution of the indicative sentence for the break and enter offence to the aggregate sentence. The court considered whether the sentencing judge had erred in these assessments and whether the sentence imposed was manifestly excessive. The court needed to determine if the sentencing judge appropriately balanced the principles of deterrence, denunciation, and rehabilitation when imposing the sentence.

In dismissing the appeal, the court found that the sentencing judge did not err in assessing the objective seriousness of the offence or in the contribution of the indicative sentence to the aggregate sentence. The court held that the sentence imposed was neither manifestly excessive nor disproportionate. The court emphasised the importance of the sentencing judge's consideration of the totality of the offender's offending, the need for denunciation and deterrence, and the protection of the community. The court found that the sentence was within the range of appropriate penalties for the offences committed.

The appeal was dismissed, and the original sentence stood. The court found no grounds to interfere with the sentencing decision made by the lower court.

Orders