Ha v The King

Case [2023] NSWCCA 274


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: HA v R [2023] NSWCCA 274
Hearing dates: 13 September 2023
Date of orders: 03 November 2023
Decision date: 03 November 2023
Before: Stern JA at [1];
Harrison J at [143];
N Adams J at [144].
Decision:

(1)   Grant leave to appeal against both conviction and sentence.

(2)   Dismiss the appeal against conviction.

(3)   Allow the appeal against sentence.

(4)   Quash the sentence imposed by Judge Harris and in lieu thereof impose an aggregate sentence of 8 years and 3 months, with a non-parole period of 5 years. Sentence commences on 5 April 2022 and expires on 4 July 2030. The non-parole period will expire on 4 April 2027.

Catchwords:

CRIME – appeals – appeal against conviction – inconsistent verdicts – 9 offences against same complainant – where applicant convicted of two counts – where applicant acquitted of all other counts – whether jury verdicts of guilty inconsistent with acquittals – verdicts not inconsistent

CRIME – appeals – appeal against sentence – where sentencing judge made finding complainant under authority of offender – described by sentencing judge as aggravating feature – whether sentencing judge fell into De Simoni error – error made out – applicant resentenced

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A

Crimes Act 1900 (NSW), ss 66A, 578A

Criminal Appeal Act 1912 (NSW), ss 5(1), 6

Cases Cited:

Aryal v R [2021] NSWCCA 2

Burr v R [2020] NSWCCA 282

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Collins v R [2020] NSWCCA 198

Cordeiro v R [2019] NSWCCA 308

Dansie v R (2022) 274 CLR 651; [2022] HCA 25

DH v R [2022] NSWCCA 200

DL v R (2018) 265 CLR 215; [2018] HCA 32

Ganiji v R [2019] NSWCCA 208

KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kilby v R [2023] NSWCCA 247

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

McKinnon v R [2020] NSWCCA 106

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Noonan v R [2021] NSWCCA 35

NW v R [2023] NSWCCA 134

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v Wickham [2004] NSWCCA 193

Rainbow v R [2018] NSWCCA 42

RO v R [2019] NSWCCA 183

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Turnbull v R [2019] NSWCCA 97

Walker v R [2019] NSWCCA 4

Category:Principal judgment
Parties: HA (Applicant)
The Crown (Respondent)
Representation:

Counsel:
S Goodwin (Applicant)
E Balodis (Respondent)

Solicitors:
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/189114
Publication restriction: Nil
 Decision under…

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AGLC
Ha v The King [2023] NSWCCA 274
Case
[2023] NSWCCA 274
Decision Date

CaseChat Overview and Summary

In this case, Ha appealed against his conviction and sentence following his conviction on two counts of offences against a single complainant. The remaining seven charges were dismissed. The High Court of Australia heard the appeal against both the conviction and the sentence. The central issue in the appeal was whether the jury's verdicts were inconsistent. Ha argued that the acquittals on the other counts should have led to an acquittal on the counts for which he was convicted, as the evidence was similar. The court considered the principle that an acquittal on one count does not necessarily lead to an acquittal on another count, especially when the evidence is not identical. The court found that the verdicts were not inconsistent and dismissed the appeal against conviction.

The second issue addressed by the court was whether the sentencing judge made an error in sentencing. The sentencing judge had found that the complainant was under the authority of the offender, which the judge described as an aggravating feature. The court considered whether this amounted to a De Simoni error, where the sentencing judge considers a fact that has not been found by the jury. The court found that the sentencing judge did indeed make this error. Consequently, the appeal against sentence was allowed, and the case was remitted for resentencing. The court ordered that Ha be resentenced by a different judge.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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