HJWG v R - [2011] NSWCCA 50

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HJWG v R [2011] NSWCCA 50
Hearing dates: 16 February 2011
Decision date: 01 April 2011
Before: McClellan CJ at CL at [1]
Johnson J at [36]
McCallum J at [37]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL - sentence appeal - sexual assault - objective seriousness - manifest excess - appeal dismissed
Legislation Cited: Crimes Act
Cases Cited: House v The King (1936) 55 CLR 499
R v Eedens [2009] NSWCCA 254
R v Johnson [2004] NSWCCA 140
R v McEvoy [2010] NSWCCA 110
R v Sellars [2010] NSWCCA 133
Category: Principal judgment
Parties: HJWG (Applicant)
The Crown
Representation: Counsel:
M Johnston (Applicant)
J Pickering (Crown)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2009/142624
Decision under appeal

Date of Decision:

2010-02-11 00:00:00

Before:

English DCJ

File Number(s):

2009/142624

Judgment

McCLELLAN CJ at CL : The applicant pleaded guilty to 4 charges of sexual assault committed against his daughter. They were:

(1) Count 1 - between 11 August 2004 and 10 August 2005 - assault and commit act of indecency complainant under 10 years, namely 7 (Section 61M(2) Crimes Act ). The maximum penalty for this offence is ten years imprisonment. There is a standard non-parole period of 8 years.

(2) Count 2 - between 11 August 2004 and 10 August 2006 - sexual intercourse with a person under the age of 10 years, namely 7 or 8 (Section 66A Crimes Act ). The maximum penalty for this offence is 25 years imprisonment. There is a standard non-parole period of 15 years.

(3) Count 3 - between 11 August 2006 and 10 August 2008 - assault and commit act of indecency, in circumstances of aggravation, namely under authority (Section 61M(1) Crimes Act ). The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years.

(4) Count 4 - between 11 August 2006 and 10 August 2008 - assault and commit act of indecency, in circumstances of aggravation, namely under authority (Section 61M(1) Crimes Act ). The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years.

The sentencing judge imposed the following sentences:

(1) Count 1 - imprisonment for 1 year and 10 months and 15 days commencing 3 December 2009 with a non-parole period of 1 year 1 month 15 days.

(2) Count 2 - imprisonment for 9 years commencing 3 December 2011 to 2 December 2020 with a non-parole period of 6 years from 3 December 2011 to 2 December 2017.

(3) Count 3 - imprisonment for 4 years 6 months commencing 3 June 2010 to 2 December 2014 with a non-parole period of 2 years 8 months 11 days.

(4) Count 4 - imprisonment for 4 years 6 months commencing 3 December 2010 to 2 June 2015 with a non-parole period of 2 years 8 months and…

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 HJWG v R

Details

AGLC: HJWG v R [2011] NSWCCA 50
Case: [2011] NSWCCA 50
Decision Date: 01 April 2011

CaseChat Overview and Summary

The applicant, HJWG, appealed against the sentence imposed by the County Court for a sexual assault offence. The County Court found HJWG guilty and sentenced him to a term of imprisonment. HJWG sought to appeal the sentence on the basis that it was manifestly excessive. The appeal was heard by the Court of Appeal.

The central legal issue was whether the sentence imposed was manifestly excessive. This required the Court of Appeal to consider the objective seriousness of the offence and the circumstances in which it was committed. The Court also had to determine whether the sentence imposed by the County Court was so excessive that it demonstrated a failure to properly exercise its sentencing discretion.

The Court of Appeal found that the County Court had considered the objective seriousness of the offence and had appropriately weighed the relevant aggravating and mitigating factors. The sentence imposed was within the range of sentences that could be considered appropriate for the offence. The Court held that the sentence was not manifestly excessive and dismissed the appeal. The Court of Appeal found no error in the County Court's approach to sentencing, and the sentence imposed was affirmed.

Orders