GSH v R; R v GSH - [2009] NSWCCA 214

Appeal Outcome: Special leave dismissed by the High Court 10 March 2010 (S277/2009)

New South Wales

Court of Criminal Appeal

CITATION: GSH v R ; R v GSH [2009] NSWCCA 214

HEARING DATE(S): 27 May 2009

JUDGMENT DATE:
25 August 2009

JUDGMENT OF: Giles JA at 1; Howie J at 2; Latham J at 3

DECISION: 1. Dismiss the appeal against conviction.
2. Allow the Crown appeal against sentence.
3. The sentences imposed on 19 September 2008 are set aside.
4. On each of count 1 and count 4, a non parole period of 2 years and 6 months is imposed, to date from 19 March 2007, expiring 18 September 2009, with a balance of term of 10 months, expiring 18 July 2010.
5. On count 2, a non parole period of 5 years is imposed, to date from 19 March 2008, expiring 18 March 2013, with a balance of term of 18 months, expiring 17 September 2014.
6. The respondent is eligible for release on 19 March 2013.

CATCHWORDS: CRIMINAL LAW - conviction appeal and Crown appeal against sentence - aggravated indecent assault - whether verdicts are unreasonable and cannot be supported by the evidence - time of the essence - whether inconsistencies in accounts given by 9 year old complainant over the course of three interviews give rise to a reasonable doubt that offences occurred on specified date - quality of interview process - error in length of standard non parole period - error in imposing fixed term for offence with standard non parole period - manifest inadequacy.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Amendment Act 2007

CASES CITED: M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Burrell v R [2009] NSWCCA 193
Zaphir v R [2009] NSWCCA 124
SKA v R ; R v SKA [2009] NSWCCA 186
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
Kershaw v R [2009] NSWCCA 19
R v Terkmani [2009] NSWCCA 142
Ivimy v R [2008] NSWCCA 25
SGJ v R [2008] NSWCCA 258

PARTIES: GSH - Appellant
Regina - Crown

FILE NUMBER(S): CCA 2007/00013512

COUNSEL: T Game SC - Appellant
N Noman - Crown

SOLICITORS: S Kavanagh (Solicitor for Public Prosectuions) - Appellant
Steve O'Connior (Legal Aid Commission) - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3291

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 19 September 2008

2007/00013512

GILES JA
HOWIE J
LATHAM J
25 AUGUST 2009

G S H v REGINA

REGINA v G S H

Judgment

1 GILES JA : I agree with Latham J.

2 HOWIE J : I agree with Latham J.

3 LATHAM J : The appellant was convicted after trial on three counts (counts 1, 2 and 4 on the indictment) of Aggravated Indecent Assault pursuant to s 61M(2) of the Crimes Act 1900, each carrying a maximum penalty of 10 years imprisonment and a standard non parole period of 8 years. The appellant…

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

Case: [2009] NSWCCA 214
Decision Date: 25 August 2009

CaseChat Overview and Summary

In the case of GSH v R; R v GSH, the appellant GSH sought to appeal against a conviction and sentence for aggravated indecent assault. The Crown filed a cross-appeal contending that the sentence was manifestly inadequate. The dispute was heard in the High Court of Australia. The appellant contended that the jury's verdict was unreasonable and could not be supported by the evidence due to inconsistencies in the accounts given by the complainant, a 9-year-old girl, during three separate interviews. The Crown argued that the discrepancies did not give rise to a reasonable doubt that the offences occurred on the date specified.

The court was required to consider whether the verdicts were unreasonable and whether the inconsistencies in the complainant's accounts raised a reasonable doubt about the timing of the offences. The court also needed to assess whether there were errors in the interview process and whether the sentence imposed was manifestly inadequate. The court examined the quality of the interview process and whether the sentence was sufficiently punitive given the nature of the offences. In particular, the court considered whether the error in the length of the standard non-parole period and the imposition of a fixed term for an offence with a standard non-parole period constituted a manifest inadequacy.

The High Court held that the appellant's appeal against conviction and sentence was dismissed. The court found that the jury's verdict was not unreasonable and could be supported by the evidence. The court also found that the inconsistencies in the complainant's accounts did not give rise to a reasonable doubt about the timing of the offences. The court held that the error in the length of the standard non-parole period and the imposition of a fixed term for an offence with a standard non-parole period did not constitute a manifest inadequacy. The court further found that the sentence imposed was appropriate given the nature of the offences. The court upheld the conviction and sentence imposed by the trial judge.

Orders