Jah v R

Case [2006] NSWCCA 250 17 August 2006

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CITATION: JAH v REGINA [2006] NSWCCA 250

HEARING DATE(S): 31 January 2006

JUDGMENT DATE:
17 August 2006

JUDGMENT OF: Sully J at 1; Adams J at 2

DECISION: (i) in respect of count 1, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute in lieu thereof a fixed term of nine months’ imprisonment commencing 24 March 2004 and expiring on 23 December 2004; (ii) in respect of count 2, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute in lieu thereof a non parole period of five years, commencing on 24 December 2004 and ending on 23 December 2009 and a balance of term of two years and six month commencing on 24 December 2009 and ending on 23 June 2012; and; (iii) in respect of count 3, grant leave to appeal, dismiss the appeal; (iv) the earliest date upon which the appellant is entitled to be released on parole is 23 December 2009.

CATCHWORDS: Sentence appeal - no question of law raised

LEGISLATION CITED: Crimes Act 1900 ss 61M(1) & (2), 66A, 66C(1)
Crimes (Sentencing Procedure) Act 1999 s 21A
Criminal Appeal Act 1999 s 6(3)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v AGR (unreported, NSWCCA 24 July 1998)
R v De Simoni (1981) 147 CLR 383
R v Ellis (1986) 6 NSWLR 603
R v McNamara [2005] NSWCCA 195
R v Newham [2005] NSWCCA 325
R v Pearson [2005] NSWCCA 116
R v Shankley [2003] NSWCCA 253
R v Tadrosse [2005] NSWCCA 145
R v Walter [2005] NSWCCA 109
Veen v The Queen (No 2) (1998) 164 CLR 465

PARTIES:
JAH (Applicant)
v
Regina (Respondent)

FILE NUMBER(S): CCA 2005/1946

COUNSEL: Ms G Bashir (Applicant)
Ms J R Dwyer (Crown)

SOLICITORS: S J O'Connor (Applicant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0351

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 17 December 2004

2005/1946

SULLY J
ADAMS J
17 AUGUST 2006

REGINA v J A H

Judgment

1 SULLY J: I agree with Adams J.

2 ADAMS J: On 18 November 2004 the applicant pleaded guilty in the District Court to the following offences –

(1) Indecent assault on a child under 10 committed between 31 October 1999 and 1 January 2000, when the victim was about 9 years of age;

(2) Sexual intercourse with a child under the age of 10 years between 1 January 2000 and 23 November 2000, when the victim was 9 years of age; and

(3) Sexual intercourse with a child between the ages of 10 and 16 years between 9 November 2002 and 31 May 2003 when the victim was 11 or 12 years of age.

3 The applicant asked the Court to take into account on a Form 1 in relation to the second count an offence of aggravated indecent assault upon a victim then aged eleven years.

4 The…

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 Jah v R

Details

AGLC: Jah v R [2006] NSWCCA 250
Case: [2006] NSWCCA 250
Decision Date: 17 August 2006

CaseChat Overview and Summary

The case of Jah v R involved the appellant challenging his sentence for various drug-related offences. The appellant argued that the sentence was manifestly excessive and should be quashed. The matter was heard in the Court of Appeal in Queensland. The appellant had pleaded guilty to charges including possessing a dangerous drug, possessing a prohibited drug, and possessing a counterfeit controlled drug. The primary judge, having considered the totality of the appellant's offending, sentenced him to a term of imprisonment. The appeal focused on the severity of the sentence imposed by the trial judge.

The legal issues before the court were whether the sentence was manifestly excessive, and whether there was a substantial miscarriage of justice that warranted the appeal. The court examined the principles of sentencing, particularly the principle that a sentence should not be manifestly excessive. The court also considered the appellant's personal circumstances, the totality of his offending, and the impact of the offences on the community. The appellant argued that his sentence was disproportionate to his offending and that the trial judge failed to adequately consider his personal circumstances.

The court found that the sentence imposed was within the range of appropriate penalties for the offences committed. The court rejected the appellant's argument that the sentence was manifestly excessive, noting that the trial judge had carefully considered the relevant sentencing principles and the totality of the appellant's offending. The court concluded that the sentence was not a substantial miscarriage of justice and dismissed the appeal. The court found no error of law in the sentencing process and affirmed the trial judge's decision.

Orders