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, 53ACases 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 179Category: Principal judgment Parties: Kevin Alfred Hornhardt – Applicant
Regina – Respondent CrownRepresentation: Counsel:
Solicitors:
P Segal – Applicant
T Smith – Respondent Crown
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…
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- AGLC
- Hornhardt v R [2017] NSWCCA 186
- Case
- [2017] NSWCCA 186
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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