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
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…
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 Ha v The King
Sign in free to access the full text
Details
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.