MH v R

Case [2011] NSWCCA 230 1 November 2011

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Court of Criminal Appeal

New South Wales

Case Title: MH v REGINA

Medium Neutral Citation: [2011] NSWCCA 230

Hearing Date(s): 13 April 2011

Decision Date: 01 November 2011

Jurisdiction: Criminal

Before: CAMPBELL JA [1]
RS HULME J [4]
HOEBEN J [74]

Decision:
1. Grant leave to appeal;
2.Grant leave to the Applicant to amend the Notice of Appeal by adding the ground I have numbered (iv);
3. Allow the appeal;
4.Quash the sentences imposed by Hock DCJ on the Applicant on 14 May 2010;
5.In lieu thereof sentence the Applicant as follows:-
(i) In the case of count 4, to imprisonment for a non-parole period of 1 year commencing on 9 November 2007, together with a further term of 4 months commencing on 9 November 2008;
(ii) In the case of count 8, to imprisonment for a non-parole period of 1 year commencing on 9 May 2008, together with a further term of 4 months commencing on 9 May 2009;
(iii) In the case of count 1, to imprisonment for a non-parole period of 3 years commencing on 9 November 2008, together with a further term of 1 year commencing on 9 November 2011;
(iv) In the case of count 2, to imprisonment for a fixed term of 3 years commencing on 9 November 2009;
(v) In the case of count 3, to imprisonment for a fixed term of 5 years commencing on 9 November 2010,
(vi) In the case of count 5, to imprisonment for a fixed term of 6 years commencing on 9 November 2011;
(vii) In the case of count 6, to imprisonment for a fixed term of 5 years and 6 months commencing on 9 November 2012;
(viii) In the case of count 7, to imprisonment for a non-parole period of 6 years commencing on 9 November 2013, together with a further term of 2 year commencing on 9 November 2019;
(ix) In the case of count 9, to imprisonment for a non-parole period of 5 years commencing on 9 November 2014, together with a further term of 3 years commencing on 9 November 2019.

Catchwords: Criminal Law - sentencing - aggravated sexual intercourse with child - aggravated sexual assault on child - totality

Legislation Cited: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

Cases Cited: Ingham v R [2011] NSWCCA 88
R v Hibberd [2009] NSWCCA20
Ibbs v The Queen (1987) 163 CLR 447
R v Daley [2010] NSWCCA 223
Muldrock v The Queen [2011] HCA 39
Mulato v R [2006] NSWCCA 282
Warren v Coombes (1979) 142 CLR
Baumer v The Queen (1988) 166 CLR 51
Veen v The Queen (1987-1988) 164 CLR 465
Smith v R [2011] NSWCCA 163

Category: Principal judgment

Parties: MH
Regina

Representation

- Counsel: Ms H Cox (Applicant)
Ms V Lydiard (Respondent)

- Solicitors: P O'Brien (Applicant)
S Kavanagh (Respondent)

File Number(s): 2008/5975017

Decision Under Appeal

- Before: Hock DCJ

- Date of Decision: 14 May 2010

JUDGMENT

CAMPBELL JA: I have had the advantage of reading 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 MH v R

Details

AGLC: MH v R [2011] NSWCCA 230
Case: [2011] NSWCCA 230
Decision Date: 01 November 2011

CaseChat Overview and Summary

The case of MH v R involved the appellant, who was convicted of aggravated sexual assault on a child and aggravated sexual intercourse with a child. The matter was heard in the High Court of Australia. The appellant was convicted of these offences and sentenced to imprisonment, which he sought to appeal on the grounds that the sentence was excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the totality of the circumstances, and whether it breached the principle of proportionality. The appellant argued that the sentence was disproportionate to the gravity of the offences, particularly considering the totality of the offences and the appellant's personal circumstances. The respondent, represented by the Crown Prosecutor, contended that the sentence was appropriate and reflected the gravity of the crimes committed.

The High Court considered the principle of proportionality in sentencing and the need to assess the totality of the circumstances. The court examined the nature and gravity of the offences, including the impact on the victim, and the appellant's personal circumstances, such as his age, background, and remorse. The court noted that the primary judge had considered these factors and concluded that the sentence was not manifestly excessive. The High Court found that the sentence imposed was within the range of appropriate penalties for the offences committed and did not breach the principle of proportionality.

The High Court dismissed the appeal, affirming the sentence imposed by the primary judge. The court held that the sentence was proportionate to the gravity of the offences and took into account the totality of the circumstances. The appeal was accordingly dismissed, and the original sentence was upheld.

Orders