Herbert v The Queen - [2015] NSWCCA 172

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Herbert v R
Medium Neutral Citation:	[2015] NSWCCA 172
Hearing Date(s):	29 June 2015
Decision Date:	29 June 2015
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Campbell J at [61]
Decision:	1. Leave to appeal granted. 2. Appeal allowed. 3. Sentences imposed in the District Court on 18 April 2013 quashed. 4. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, impose an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months to date from 29 October 2011. The non-parole period will expire on 28 January 2018 at which time the applicant will become eligible for release on parole.
Catchwords:	CRIMINAL LAW – appeal against sentence – three offences of aggravated sexual intercourse without consent – whether sentencing judge erred in failing to allow separate discount for voluntary disclosure of guilt – consideration of “Ellis discount” principles – ground upheld – applicant resentenced
Legislation Cited:	Crimes Act 1900 (NSW) s 61J(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23(3), 53A
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Ellis (1986) 6 NSWLR 603 R v Gorman [2002] NSWCCA 516; 137 A Crim R 326 R v Hasan [2005] NSWCCA 21 R v LG [2012] NSWCCA 249 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Windle v R [2012] NSWCCA 222 Zhang v R [2011] NSWCCA 233
Category:	Principal judgment
Parties:	Joshua Herbert (Applicant) Regina (Respondent)
Representation:	Counsel: Mr E Ozen (Applicant) Ms N Williams (Crown) Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions
File Number(s):	2011/345714
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	18 April 2013
Before:	Conlon SC DCJ
File Number(s):	2011/345714

JUDGMENT

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: Joshua Herbert (“the applicant”) applies for leave to appeal against sentences imposed in the District Court at Wollongong by his Honour Judge Conlon SC on 18 April 2013 for three offences of sexual intercourse without consent in circumstances of aggravation, namely the infliction of actual bodily harm.
These offences are contrary to s 61J(1) of the Crimes Act 1900 (NSW) which prescribes a maximum penalty of imprisonment for 20 years. There is also prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 10 years.
The applicant was sentenced to a total term of imprisonment for 10 years with a non-parole component of 7 years. This involved partial accumulation of individual sentences of 6 years, 6 years and 8 years. The first sentence was specified to date from 29 October 2011. The applicant will become eligible for release on parole on 28 October 2018.
Leave is sought to appeal on the following grounds:
1…

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 Herbert v The Queen

Details

AGLC: Herbert v The Queen [2015] NSWCCA 172
Case: [2015] NSWCCA 172
Decision Date: 29 June 2015

CaseChat Overview and Summary

The case of Herbert v The Queen involved an appellant, Herbert, who appealed against his sentence for three offences of aggravated sexual intercourse without consent. The trial judge had sentenced Herbert to imprisonment, but the appellant argued that the sentence was excessive and that the judge had failed to appropriately discount the sentence for his voluntary disclosure of guilt. The matter was heard in the High Court of Australia, which had the task of determining whether the sentencing judge erred in not allowing a separate discount for the voluntary disclosure of guilt and whether the principles established in Ellis v R applied.

The legal issues before the court were whether the sentencing judge erred in failing to allow a separate discount for the voluntary disclosure of guilt, and if the principles regarding the Ellis discount were correctly applied. The court had to consider whether the sentencing judge had properly assessed the discount for voluntary disclosure and whether the principles established in Ellis v R were correctly applied in this context. The appellant argued that the sentencing judge did not adequately consider the discount for voluntary disclosure, and that this error led to an excessive sentence.

The court found that the sentencing judge had indeed erred in failing to allow a separate discount for the voluntary disclosure of guilt. The court noted that the principles established in Ellis v R require a sentencing judge to consider the discount for voluntary disclosure separately from other factors when determining an appropriate sentence. The court held that the sentencing judge had not properly applied these principles, leading to an excessive sentence. Consequently, the ground of appeal was upheld, and the appellant was resentenced by the court.

In summary, the High Court of Australia determined that the sentencing judge had erred in not allowing a separate discount for the voluntary disclosure of guilt. The principles established in Ellis v R were not correctly applied, leading to an excessive sentence. The appellant was resentenced by the court, reflecting the appropriate discount for voluntary disclosure.

Orders