Hartley v The Queen - [2020] NSWCCA 330

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hartley v R [2020] NSWCCA 330
Hearing dates: 3 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Before: Simpson AJA at [1]
Bellew J at [45]
Campbell J at [46]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal allowed, sentence set aside.
3. The applicant be sentenced to imprisonment made up of a non-parole period of 2 years commencing on 24 April 2018 and expiring on 23 April 2020, with a balance of term of 1 year which will expire on 23 April 2021.

Catchwords:
CRIME — Appeals — Appeal against sentence – applicant sentenced in relation to one count of assault with act of indecency on a person aged under 16 years – s 61M(2) Crimes Act – whether sentencing judge erred in finding that offence was “slightly below the middle of the range” of objective seriousness – whether sentencing judge erred in finding that the applicant had an “abnormal sexual disorder which has not abated” – previous sexual offence 29 years earlier – no sexual offending since – where no medical evidence adduced in relation to sexual disorder – whether sentence manifestly excessive – leave to appeal against sentence granted, applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), Pt 4 Div 1A

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282

Category: Principal judgment
Parties: David James Hartley (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
E Wilkins SC (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/196479
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 November 2019

Before:

Arnott SC DCJ

File Number(s):

2017/196479

Judgment

SIMPSON AJA: On 29 July 2019 the applicant was arraigned in the District Court on an indictment that contained five counts (the second and fourth being presented as alternative to the first and third). Counts 1 and 3 alleged aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). Counts 2 and 4 alleged sexual intercourse with a child under the age of 16 (12 or 13 years) contrary to s 66C(1) of the Crimes Act. Count 5 alleged assault with act of indecency on or in the presence of a person under the age of 16 years, contrary to s 61M(2) (since repealed) of the Crimes Act. An offence against subs (2) of s 61M carried a maximum penalty of imprisonment for 10 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a standard non-parole period of 8 years was applicable. The offence created by s 61M(2) was an aggravated…

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 Hartley v The Queen

Details

AGLC: Hartley v The Queen [2020] NSWCCA 330
Case: [2020] NSWCCA 330
Decision Date: 11 December 2020

CaseChat Overview and Summary

The appellant, Hartley, appealed against his sentence for an assault involving an act of indecency on a person under 16 years old. The original sentence was handed down by a lower court, and the matter was brought before the High Court of Australia for reconsideration. The central issue in this appeal was whether the sentencing judge had correctly assessed the objective seriousness of the offence and the appellant's personal circumstances, particularly in relation to an alleged abnormal sexual disorder. The appellant argued that the sentencing judge erred in both the assessment of the seriousness of the offence and the characterisation of his condition, which was based on a sexual offence committed 29 years prior with no further incidents since.

The High Court considered the objective seriousness of the offence and the appellant's personal circumstances, including the lack of medical evidence regarding the alleged abnormal sexual disorder. The Court noted that the sentencing judge had appropriately taken into account the appellant's previous conviction, but highlighted the significant passage of time without any further sexual offending. The Court found that the sentencing judge's assessment of the objective seriousness of the offence was slightly below the middle of the range, and that the finding regarding the appellant's abnormal sexual disorder was not supported by sufficient evidence. The Court concluded that the sentence was not manifestly excessive, but the errors in the assessment required a resentencing.

Ultimately, the High Court allowed the appeal against sentence, quashed the original sentence, and remitted the matter to the lower court for resentencing. The Court emphasised the importance of accurate assessments in sentencing and the need for sufficient evidence to support findings of abnormal sexual disorders. The final orders included the quashing of the original sentence and the direction that the appellant be resentenced by the lower court in light of the High Court's findings.

Orders