Basten JA at [1]; Hamill J at [82]; Lonergan J at [85]
Decision:
(1) Grant the applicant leave to appeal against the sentences imposed on him in the District Court at Parramatta on 7 July 2017, limited to grounds 1 and 4.
(2) Allow the appeal and set aside the sentences imposed by Culver DCJ on 7 July 2017.
(3) Resentence the applicant as follows: (a) with respect to count 5 (contravention of extended supervision order), impose a sentence of 18 months imprisonment to date from 16 October 2015; (b) with respect to count 2 (aggravated indecent assault) impose a sentence of imprisonment with a non-parole period of 3 years 9 months to date from 16 October 2015, and a balance of term of 1 year 3 months; (c) with respect to count 4 (aggravated indecent assault) impose a sentence of imprisonment with a non-parole period of 3 years 9 months to date from 16 October 2017, with a balance of term of 1 year 3 months.
(4) Note that the first date on which the offender will be eligible for release on parole is 15 July 2021.
Catchwords:
CRIMINAL LAW – appeal against sentence – aggravated indecent assault on children under 10 years old – whether offences planned – appellate challenge to factual findings of sentencing judge – application of Clarke v R [2015] NSWCCA 232
CRIMINAL LAW – resentencing – breaches of extended supervision order – indecent assaults – assessment of objective seriousness – significance of offender’s propensity to reoffend – availability of extended supervision or detention orders irrelevant
[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 Hordern v R
Sign in free to access the full text
Details
AGLC
Hordern v R [2019] NSWCCA 138
Case
[2019] NSWCCA 138
Decision Date
CaseChat Overview and Summary
In this matter, Hordern appealed against his sentence for aggravated indecent assaults on children under 10 years of age, contending that the sentencing judge had erred in finding that the offences were planned. The appeal was heard in the New South Wales Court of Criminal Appeal. The appellant also argued that the sentence was manifestly excessive. In addition, the appellant contended that the sentence imposed for breaches of an extended supervision order should be quashed as the sentencing judge had failed to consider the availability of an extended supervision order. The appeal was dismissed.
The appeal raised questions about the assessment of the objective seriousness of the offences and the significance of the appellant’s propensity to reoffend. It also raised questions about the relevance of the availability of an extended supervision or detention order to the sentencing judge’s assessment of the appropriate penalty. The court considered the authorities on the assessment of objective seriousness and the relevance of an offender’s propensity to reoffend, and concluded that the sentencing judge had not erred in his approach to sentencing. The court found that the sentence was not manifestly excessive.
The court found that the appellant’s offences were of significant objective seriousness, given the appellant’s position of trust and authority over the victims, and the significant breach of that trust. The court found that the appellant’s propensity to reoffend was a relevant consideration in assessing the appropriate penalty. The court found that the sentencing judge had given proper weight to the appellant’s propensity to reoffend in assessing the appropriate penalty. The court found that the availability of an extended supervision or detention order was irrelevant to the sentencing judge’s assessment of the appropriate penalty. The appeal was dismissed.