Gleeson JA at [1] Johnson J at [2] Fagan J at [53]
Decision:
1. Grant leave to appeal against sentence. 2. Appeal against sentence dismissed.
Catchwords:
CRIMINAL LAW – appeal against sentence – multiple sexual offences committed against Applicant’s niece – sole ground of appeal that aggregate sentence was manifestly excessive – Applicant suffers from rare genetic disorder – reliance on bare statistics without analysis unhelpful – aggregate sentence not unreasonable or plainly unjust – appeal dismissed
Bruce Hordern (a pseudonym) (Applicant) Regina (Respondent)
Representation:
Counsel: Mr P Little (Applicant) Mr D Patch (Respondent)
Solicitors: Peter Murphy Criminal Law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2015/177606
Publication restriction:
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Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
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Citation:
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Date of Decision:
15 March 2018
Before:
His Honour Judge Sutherland SC
File Number(s):
2015/177606
Judgment
GLEESON JA: I agree with Johnson J.
JOHNSON J: The Applicant, Bruce Hordern, seeks leave to appeal against an aggregate sentence of imprisonment imposed at the Parramatta District Court on 15 March 2018 for a number of sexual offences committed against the Applicant’s niece. A pseudonym is used to describe the Applicant as publication of his name would tend to identify the victim who is entitled to protection against identification under s.578A Crimes Act 1900.
The Offences, Aggregate Sentence and Indicative Sentences
The Applicant was sentenced after trial having been found guilty by a jury of eight offences. His Honour Judge Sutherland SC imposed an aggregate sentence of imprisonment for 11 years comprising a non-parole period of seven years commencing on 16 January 2017 and expiring on 15 January 2024, with a balance of term of four years commencing on 16 January 2024 and expiring on 15 January 2028.
The offences, maximum penalties and indicative sentences are set out in the following table. All offences took place between 1 January 2014 and 12 March 2014, when the victim was aged 14 or 15 years and the Applicant was 31 years old.
Offence
Maximum Penalty
Indicative Sentence
Count 4 - Sexual intercourse with person aged between 14 years and 16 years contrary to s.66C(3) Crimes Act 1900 (penile/vaginal intercourse)
10 years’ imprisonment
Four years’ imprisonment
Count 5 - Sexual intercourse with person aged between 14 years and 16 years contrary to s.66C(3) Crimes Act
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
Hordern v R [2019] NSWCCA 210
Case
[2019] NSWCCA 210
Decision Date
CaseChat Overview and Summary
The case of Hordern versus the Crown involved a defendant who had been convicted of a series of sexual offences committed against his niece. The matter was before the court on appeal against the sentence imposed. The applicant argued that the aggregate sentence was manifestly excessive, primarily on the basis that he suffered from a rare genetic disorder. The High Court of Australia was tasked with reviewing the sentence and determining whether it was unreasonable or plainly unjust.
The legal issues before the court included the appropriate methodology for assessing the severity of a sentence and whether the trial judge had adequately considered the applicant’s medical condition in determining the appropriate penalty. The court had to weigh the severity of the crimes against the applicant’s personal circumstances, including his medical condition, to determine if the sentence imposed was just and appropriate.
In dismissing the appeal, the court found that the trial judge had considered the applicant’s medical condition in sentencing but had also appropriately balanced this against the seriousness of the offences. The court held that the reliance on statistics alone, without a detailed analysis of their relevance to the specific case, was unhelpful. The aggregate sentence, when considered in its entirety, was not found to be unreasonable or plainly unjust. The appeal was thus dismissed.