"H" -v- THE QUEEN [2002] WASCA 66

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 66
Court:	COURT OF CRIMINAL APPEAL	Published:	28/03/2002
Case No:	CCA:128/2001	Heard:	15 FEBRUARY 2002
Coram:	WALLWORK J ANDERSON J WHEELER J	Delivered:	15/02/02
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	"H" THE QUEEN
Catchwords:	Criminal law Sentencing Two rapes on same child Child 8 years old at first offence 11-12 years old at second offence Whether two 5-year terms of imprisonment to be served cumulatively too severe Decided on facts
Legislation:	Nil
Case References:	Bell v The Queen [2001] WASCA 40 (22 February 2001) Cameron v The Queen [2002] 8 HCA 6 (14 February 2002) Lowndes v The Queen (1999) 195 CLR 665 Podirsky v The Queen (1989) 43 A Crim R 404 R v Leggett [2000] WASCA 327 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 S v R [2001] WASCA 245 Woods v R (1994) 14 WAR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "H" -v- THE QUEEN [2002] WASCA 66 CORAM : WALLWORK J

ANDERSON J

WHEELER J

HEARD : 15 FEBRUARY 2002 DELIVERED : 15 FEBRUARY 2002 PUBLISHED : 28 MARCH 2002 FILE NO/S : CCA 128 of 2001 BETWEEN : "H"

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sentencing - Two rapes on same child - Child 8 years old at first offence - 11-12 years old at second offence - Whether two 5-year terms of imprisonment to be served cumulatively too severe - Decided on facts

Legislation:

Nil

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Mr R A Mazza

Respondent : Mr R E Cock QC

Solicitors:

Applicant : R A Mazza

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bell v The Queen [2001] WASCA 40
Cameron v The Queen [2002] 8 HCA 6
Lowndes v The Queen (1999) 195 CLR 665
Podirsky v The Queen (1989) 43 A Crim R 404

Case(s) also cited:

R v Leggett [2000] WASCA 327
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
S v R [2001] WASCA 245
Woods v R (1994) 14 WAR 341

(Page 3)

1 WALLWORK J: This application for leave to appeal against sentence was unanimously refused by the Court after a hearing on 15 February 2002. I now state my reasons for agreeing in that decision.

2 The applicant was on the 29 August 2001 sentenced to two terms of 5 years' imprisonment to be served cumulatively for two offences of rape which were committed against a child. The first offence was committed on or about 1 August 1973 and the second was committed on a date unknown, between the 1 January 1977 and 1 July 1977.

3 At the time when the offences were committed against the same…

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 "H" v The Queen

Details

AGLC: "H" v The Queen [2002] WASCA 66
Case: [2002] WASCA 66
Decision Date: 28 MARCH 2002

CaseChat Overview and Summary

The case of "H" v The Queen involved the defendant, "H", who had been convicted of two separate instances of raping the same child. The first offence occurred when the child was eight years old, and the second when the child was between eleven and twelve years old. The defendant was sentenced to two separate terms of five years' imprisonment, to be served cumulatively. The defendant appealed the severity of the sentence, arguing that the cumulative nature of the sentences was too harsh given the circumstances. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the cumulative nature of the sentences was appropriate and whether the sentencing judge had erred in his assessment of the severity of the offences. The court had to consider the principles of sentencing for serious sexual offences against children and whether the cumulative sentences were proportionate to the gravity of the crimes. The court also had to assess whether the trial judge had appropriately considered the impact of the crimes on the victim and the need for deterrence and rehabilitation.

In delivering the judgment, the court considered the principles of sentencing for sexual offences against children, which include the need to protect society, deter the offender and others, and rehabilitate the offender. The court found that the trial judge had appropriately considered the gravity of the offences, the impact on the victim, and the need for deterrence and rehabilitation. The court held that the cumulative sentences were proportionate to the severity of the crimes and that the trial judge had not erred in his assessment. The appeal was dismissed, and the original sentence was upheld.

The High Court dismissed the defendant's appeal and affirmed the original sentence of two five-year terms of imprisonment to be served cumulatively. The court found that the trial judge had appropriately considered the relevant sentencing principles and that the sentence was proportionate to the gravity of the offences. The court did not find any error in the trial judge's assessment of the circumstances and the need for deterrence and rehabilitation. The final order of the court was that the application for appeal be dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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