KJH v Regina - [2006] NSWCCA 189

CITATION: KJH v. REGINA [2006] NSWCCA 189

HEARING DATE(S): Tuesday 30 May 2006

JUDGMENT DATE:
22 June 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 5; Hall J at 6

DECISION: (1) Appeal allowed. (2) The sentenced imposed by the District Court on 27 July 2005 be quashed. (3) That the applicant be re-sentenced on the following basis: (a) on Count 1, he is sentenced to a fixed term of imprisonment of nine months to commence on 16 September 2004 and to expire on 15 June 2005; (b) on Count 2, he is sentenced to a fixed term of imprisonment of three years to commence on 16 September 2004 and to expire on 15 September 2007; (c) on Count 3, he is sentenced to a fixed term of imprisonment of 18 months to commence on 16 September 2005 and to expire on 15 March 2007; (d) on Count 4, he is sentenced to imprisonment for eight years to commence on 16 September 2006 and to expire on 15 September 2014. There will be a non-parole period of four years to expire on 15 September 2010; (e) on Count 5, he is sentenced to a fixed term of imprisonment of two years to commence on 16 September 2006 and to expire on 15 September 2008; (f) on Counts 7 and 8, in each case he is sentenced to fixed terms of imprisonment of two years to commence on 16 September 2007 and to expire on 15 September 2009. (4) The applicant will be eligible for release on parole on 15 September 2010.

CATCHWORDS: Appeal against sentence – not guilty pleas to eight counts of sexual misconduct with his natural daughter contrary to ss.61O(2), 66A and 61M(2) of the Crimes Act 1900 – whether trial judge erred in determining the maximum penalty applicable under s.66A – whether mis-statement by trial judge, subsequently explicitly corrected, indicates that the judge has fallen into error and applied the wrong maximum penalty – a mis-statement in the remarks on sentence, while regrettable, provides no reason to doubt the express statement made by the trial judge as to the maximum penalty he in fact had in mind at the time of determining the sentence – whether sentence was manifestly excessive – not all offences under s.66A involve an abuse of trust – sentence imposed in relation to Count 4 was manifestly excessive – whilst Count 4 was objectively more serious than Count 2, it was not at a level that could be said to warrant a sentence of approximately three times that imposed in respect of Count 2

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Muldoon (CCA, unreported 13 December 1990)
R v Eagles (CCA, unreported 16 December 1993)
JCW [2000] NSWCCA 209
TAB [2002] NSWCCA

PARTIES: KJH v. REGINA

FILE NUMBER(S): CCA No. 2006/404

COUNSEL: Crown: P.M. Miller
App: C. Davenport, SC.

SOLICITORS: Crown: S. Kavanagh
App: S. O'Connor

LOWER COURT JURISDICTION: District Court

LOWER…

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 KJH v Regina

Details

AGLC: KJH v Regina [2006] NSWCCA 189
Case: [2006] NSWCCA 189
Decision Date: 22 June 2006

CaseChat Overview and Summary

The case before the court was an appeal against the sentence imposed on the appellant by the trial judge, who found him not guilty on eight counts of sexual misconduct with his natural daughter. The crimes were charged under sections 61O(2), 66A, and 61M(2) of the Crimes Act 1900. The appellant argued that the trial judge erred in determining the maximum penalty applicable under section 66A and that the mis-statement by the trial judge, which was subsequently corrected, indicated that the judge had fallen into error and applied the wrong maximum penalty. The appellant also contended that the sentence was manifestly excessive.

The court had to decide whether the mis-statement by the trial judge, which was subsequently corrected, indicated that the judge had applied the wrong maximum penalty. The court found that a mis-statement in the remarks on sentence, while regrettable, provided no reason to doubt the express statement made by the trial judge as to the maximum penalty he in fact had in mind at the time of determining the sentence. The court also had to determine whether the sentence was manifestly excessive. The court found that not all offences under section 66A involve an abuse of trust. However, the sentence imposed in relation to Count 4 was manifestly excessive, although it was objectively more serious than Count 2, it was not at a level that could be said to warrant a sentence of approximately three times that imposed in respect of Count 2.

The appeal was dismissed in respect of Counts 1, 2, 5, 6, 7, and 8, but allowed in respect of Count 4. The sentence imposed on Count 4 was quashed, and the matter was remitted to the Court of Criminal Appeal for re-sentencing.

Orders