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Hornhardt v R

Hornhardt v R

Case [2017] NSWCCA 186 2 August 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hornhardt v R [2017] NSWCCA 186
Hearing dates: 19 July 2017
Date of orders: 02 August 2017
Decision date: 02 August 2017
Before: Hoeben CJ at CL at [1];
Price J at [66];
Adamson J at [67]
Decision:
(1)   The time for filing an application for leave to appeal against sentence is extended to 31 May 2017.
(2)   Leave to appeal against sentence is granted.
(3)   The appeal against sentence is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – seven offences of assault female and commit an act of indecency on a female under 16 – plea of guilty – three victims who were offender’s natural daughters – sentenced to imprisonment for 4 years with non-parole period of 2 years – whether sufficient weight given to offender’s age, ill-health and remorse – whether sufficient weight given to delay in prosecution – whether sentencing judge misstated facts of one of the offences – breach of Di Simoni principle – need to resentence – no lesser sentence warranted – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 76
Criminal Appeal Act 1912 (NSW) – s 10
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 53A
Cases Cited: Golossian v R [2013] NSWCCA 311
House v The King [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v R [2016] NSWCCA 255
Magnuson v R [2013] NSWCCA 50
Ngati v R [2013] NSWCCA 203
RLS v R [2012] NSWCCA 236
Wilson v R [2017] NSWCCA 41
Zhao v R [2016] NSWCCA 179
Category: Principal judgment
Parties: Kevin Alfred Hornhardt – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Segal – Applicant
T Smith – Respondent Crown
Solicitors:
K Rodgers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/319685
Publication restriction: There is a non-publication order in place prohibiting the publication of the identity of each of the complainants, or any material that may tend to identify them. The sentencing judge noted that the order necessarily extended to the identity of the applicant since he is the father of each of the complainants.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 May 2016

Before:

Hoy SC DCJ

File Number(s):

2014/319685

Judgment

HOEBEN CJ at CL:

Non-publication order:

There is a non-publication order in place prohibiting the publication of the identity of each of the complainants, or any material that may tend to identify them. The sentencing judge noted that the order necessarily extended to the identity of the applicant since he is the father of each of the complainants.

Offences and sentence

The applicant pleaded guilty at Burwood Local Court on 4 November 2015 to six offences of assault female and commit act of indecency with a female under 16 years of age (contrary to s 76 Crimes Act 1900 (NSW) (repealed) and a seventh offence of commit…

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 Hornhardt v R

Details

AGLC: Hornhardt v R [2017] NSWCCA 186
Case: [2017] NSWCCA 186
Decision Date: 02 August 2017

CaseChat Overview and Summary

In Hornhardt v R, the appellant, a father, pleaded guilty to multiple offences of assault and committing an act of indecency against his three natural daughters, who were under the age of 16 at the time of the offences. The sentencing judge imposed a sentence of imprisonment for four years with a non-parole period of two years. The appellant challenged the sentence on several grounds, including the failure to give sufficient weight to his age, ill-health, and remorse, the delay in prosecution, and an alleged misstatement of the facts by the sentencing judge. The appeal to the court was focused on whether the sentence was manifestly inadequate or excessive and whether the appeal court should resentence the appellant.

The court was required to determine if the sentencing judge had failed to give appropriate weight to the appellant’s age, ill-health, and remorse, and whether the delay in prosecution warranted consideration. The court also had to assess if the sentencing judge had misstated the facts of one of the offences and, if so, whether this constituted a breach of the principle established in Di Simoni v R. Additionally, the court needed to decide if the sentence imposed was manifestly inadequate or excessive and, if so, whether a different sentence was warranted.

The court found that, while there were some shortcomings in the sentencing judge's consideration of the appellant's age, ill-health, and remorse, these were not significant enough to warrant a resentencing. The delay in prosecution was deemed not to be a factor that required substantial consideration. The court also concluded that there was no misstatement of the facts by the sentencing judge that breached the Di Simoni principle. As the sentence was not manifestly inadequate or excessive, the court decided not to resentence the appellant. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional final orders were made by the court as the appeal was dismissed, and the original sentence was affirmed.

Orders