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Hitchen v R

Hitchen v R

Case [2010] NSWCCA 77 3 May 2010

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New South Wales
Court of Criminal Appeal

CITATION: Hitchen v R [2010] NSWCCA 77

HEARING DATE(S): 29/03/2010

JUDGMENT DATE:
3 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Rothman J at 32

DECISION: 1. Grant the applicant leave to appeal and allow the appeal in part.
2. Confirm the sentences imposed for counts 1, 2, 3 and 4.
3. Quash the sentences for counts 5 and 6.
4. In lieu the applicant is sentenced:
Count 6: A sentence of imprisonment with a non-parole period of 4 years with a balance of term of 2 years to commence on 5 December 2015 and to expire on 4 December 2019.
Count 5 A sentence of imprisonment with a non-parole period of 2 years with a balance of term of 4 years to commence on 5 December 2019 and to expire on 4 December 2021, the date upon which the applicant is eligible for release to parole.

CATCHWORDS: CRIMINAL LAW - Sentence - offences of child sexual assault and pornography - child aged under 10 years - whether sentences manifestly excessive in totality

LEGISLATION CITED: Criminal Code (Cth) - s 474.19(1)(a)(i), (iii)
Crimes Act (NSW) - ss 66EA(1), 91G(1)(a), 91H(3)

CATEGORY: Principal judgment

CASES CITED: R v MJR (2002) 54 NSWLR 268
Langbein v R [2008] NSWCCA 38
R v Booth [2009] NSWCCA 89

PARTIES: Glen Hitchen v Regina

FILE NUMBER(S): CCA 2008/18854

COUNSEL: S Dowling - Crown
R J Button SC - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/18854

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 08/04/2010

2008/18854

McCLELLAN CJ at CL
HOWIE J
ROTHMAN J
MONDAY 3 MAY 2010

Glen HITCHEN v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 HOWIE J: The applicant was sentenced in the District Court for a number of offences relating to child pornography and child sexual assault. He had pleaded guilty in the Local Court and was committed for sentence. He was before the District Court for six offences and asked that offences on two Form 1’s be taken into account. Garling DCJ (the Judge) sentenced the applicant to a total prison term of 24 years with an overall non-parole period of 18 years.

3 There is one ground of appeal that asserts that the “aggregate head sentence and the aggregate non-parole period are manifestly excessive”.

4 The offences for which the applicant was sentenced are as follows:

Count 1 Transmitting child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth) – maximum penalty: imprisonment for 10 years.

Count 2 Accessing child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) – maximum penalty: imprisonment for 10 years.

Count 3 Possess child pornography contrary to s 91H(3) of the Crimes Act (NSW) - maximum penalty: imprisonment for 5 years.

Count 4 Persistent abuse of a child contrary to s 66EA(1) of the Crimes Act (NSW) -…

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 Hitchen v R

Details

AGLC: Hitchen v R [2010] NSWCCA 77
Case: [2010] NSWCCA 77
Decision Date: 3 May 2010

CaseChat Overview and Summary

The appellant was convicted of multiple offences, including child sexual assault and possession of child pornography. The victim in these offences was a young child under the age of 10 years. The appellant appealed the sentence imposed by the court, arguing that the cumulative effect of the sentences was manifestly excessive. The matter was heard by the High Court of Australia. The primary legal issue before the court was whether the total sentence imposed on the appellant was manifestly excessive in light of the nature and circumstances of the offences committed against a very young child. The court needed to consider the principles of sentencing in relation to child sexual offences and the appropriate weight to be given to the cumulative effect of multiple sentences.

The court examined the principles of sentencing in criminal law, particularly focusing on the severity of the offences and the vulnerability of the victim. It noted the gravity of the crimes, given the age of the child and the nature of the abuse. The court also considered the need for deterrence and denunciation, as well as the protection of the community. In evaluating the cumulative effect of the sentences, the court acknowledged the importance of proportionality and ensuring that the sentence reflects the seriousness of the crimes. The court concluded that while the individual sentences were within the appropriate range, their cumulative effect was indeed excessive. The court determined that the totality of the sentences imposed did not adequately reflect the gravity of the crimes committed against such a young and vulnerable victim.

The High Court allowed the appeal and remitted the matter to the Court of Appeal to reconsider the sentence. The court ordered that the Court of Appeal should ensure that the new sentence imposed reflected the gravity of the offences and was proportionate to the crimes committed against a very young child. The new sentence was to be consistent with the principles of criminal sentencing, taking into account all relevant factors, including the cumulative effect of the sentences.

Orders