Hoeben CJ at CL at [1]; Price J at [87]; Davies J at [88]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is allowed.
(3) The sentence imposed by Shead SC DCJ on 26 July 2019 is quashed.
(4) In lieu thereof, I impose an aggregate sentence of 19 years with a non-parole period of 14 years. The aggregate sentence is to commence on 29 January 2018. The applicant will be eligible for parole on 28 January 2032.
Catchwords:
CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether fact that some offences occurred in New Zealand with lower maximum penalties should have been taken into account by sentencing judge – whether adequate allowance made for prospects of rehabilitation – error in applying plea of guilty discount to aggregate sentence – sentence appeal allowed – need to re-sentence.
Douglas Terata Korie Hillman – Applicant Regina – Respondent Crown
Representation:
Counsel: S Kluss – Applicant S Traynor – Respondent Crown
Solicitors: Ross Hill & Associate Solicitors – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2018/030705
Publication restriction:
Non-publication of any information or material that may lead to the identification of the victims (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
26 July 2019
Before:
Shead SC DCJ
File Number(s):
2018/030705
JUDGMENT
HOEBEN CJ at CL:
Offence and sentence
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by her Honour Judge Shead SC (the sentencing judge).
The applicant pleaded guilty in the Local Court to four offences: persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) (Crimes Act), two counts of aggravated indecent assault on two further victims, pursuant to s 61M(2) Crimes Act and one count of assault occasioning actual bodily harm…
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.
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Details
AGLC
Hillman v R [2021] NSWCCA 43
Case
[2021] NSWCCA 43
Decision Date
CaseChat Overview and Summary
The appellant, Mr Hillman, appealed against his sentence for persistent sexual abuse of a child. The case was heard by the New South Wales Court of Criminal Appeal. Mr Hillman was found guilty of multiple offences under section 66EA of the Crimes Act 1900 (NSW), which pertains to persistent sexual abuse of a child. The primary legal issue before the court was whether the sentencing judge had appropriately considered the fact that some of the offences occurred in New Zealand, where the maximum penalties are lower. Additionally, the court examined if adequate allowance was made for the appellant's prospects of rehabilitation and whether there was an error in applying the plea of guilty discount to the aggregate sentence.
The court found that the sentencing judge did not sufficiently take into account the different legal contexts of the offences. The judge also did not properly consider the appellant's prospects for rehabilitation. Furthermore, the court determined that the plea of guilty discount was misapplied, resulting in an overall underestimation of the appropriate sentence. Consequently, the court concluded that these errors warranted a re-sentencing hearing. The appeal was allowed, and the case was remitted to a different judge for re-sentencing.
The court did not make any final orders in the judgment but directed that the case be returned to a different sentencing judge for a re-assessment of the appropriate sentence, taking into account all relevant factors, including the nature and context of the offences and the prospects of rehabilitation.