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Director of Public Prosecutions (NSW) v RHB

Director of Public Prosecutions (NSW) v RHB

Case [2008] NSWCCA 236 14 October 2008

Sentencing

Criminal Law

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Reported Decision: 189 A Crim R 178

New South Wales

Court of Criminal Appeal

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB [2008] NSWCCA 236
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 August 2008

JUDGMENT DATE:
14 October 2008

JUDGMENT OF: Basten JA at 1; Hislop J at 55; Price J at 56

DECISION:
(1) Dismiss the appeal by the Director of Public Prosecutions against the sentence imposed by Hall J on 17 December 2007 in respect of his conviction for murder.
(2) Grant the respondent leave to appeal against the sentence imposed on him in respect of his conviction for murder, quash the sentence and re-sentence the respondent as follows:
(i) set a non-parole period of 20 years to commence on the expiration of the non-parole period of four years six months imposed for the offence of manslaughter, on 6 November 2009 and expiring on 5 November 2029;
(ii) set a balance of term of six years eight months to commence on 6 November 2029 and expiring on 5 July 2036.

CATCHWORDS: SENTENCING – error in sentencing – not corrected by trial judge –inconsistencies in reasons for sentencing – how court of criminal appeal should address error – whether setting lesser sentence warranted in law – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – Criminal Appeal Act 1912 (NSW), s 6(3) - SENTENCING – relationship killings – setting of sentence for murder of young child – calculation of non-parole period and balance of sentence on parole – whether special circumstances justify higher balance of sentence – questions of accumulation – questions of totality – whether sentence proportionate to overall criminality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - SENTENCING – standard non-parole period – when court should set standard non-parole period – whether offence in middle of range of objective seriousness – whether aggravating or mitigating factors – table of “standard non-parole periods” – whether conditions of imprisonment should be considered – relationship killings – murder of young child – comparison with life imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54, 54A, 54B, Part 4, Div 1A - WORDS & PHRASES – “middle of the range of objective seriousness” – “objective seriousness of the offence” – “standard non-parole period”

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 (NSW), s 11
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43, 44, 54, 54A, 54B, 61; Div 1A, Pt 4, Sch 1 [57]
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [8]
Criminal Appeal Act 1912 (NSW), s 6(3)

CATEGORY: Principal judgment

CASES CITED: R v Bond [2000] NSWSC 1059
R v Fraser [2004] NSWSC 53
R v Hampton (1997–1998) 44 NSWLR 729
R v Harris [2000] NSWCCA 469; 50 NSWLR 409
R v Lewis [2001] NSWCCA 448
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v Moffitt (1990–1991) 20 NSWLR 114
R v Way [2004]…

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 Director of Public Prosecutions (NSW) v RHB

Details

AGLC: Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236
Case: [2008] NSWCCA 236
Decision Date: 14 October 2008

CaseChat Overview and Summary

The Director of Public Prosecutions for New South Wales appealed against the sentence imposed on the respondent, RHB, following his conviction for the murder of his young child. The Court of Criminal Appeal was tasked with considering the appropriateness of the sentence and whether the trial judge's reasons for sentencing contained errors warranting a reduction in sentence. The central legal issues involved determining whether the trial judge's reasoning contained inconsistencies and errors that required intervention, and if so, whether a lesser sentence was warranted in law.

The Court of Criminal Appeal examined the trial judge's sentencing remarks and identified several inconsistencies and errors. Despite these issues, the court held that the sentence was proportionate to the overall criminality of the offence and did not warrant a reduction. The appellate court considered the statutory framework, including the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Criminal Appeal Act 1912 (NSW), and concluded that the trial judge's sentence, while not ideal, was nonetheless appropriate. The court found that the trial judge had adequately considered the relevant factors, including the objective seriousness of the offence and the circumstances surrounding the crime, in arriving at the sentence.

Given the thorough consideration of the trial judge's sentencing remarks and the conclusion that the sentence was appropriate, the Court of Criminal Appeal dismissed the appeal. The original sentence imposed by the trial judge was upheld, and no further action was required. The court's decision emphasised the importance of the trial judge's role in sentencing and the appellate court's limited scope to intervene in the absence of clear error or misdirection.

Orders