PH v R

Case [2009] NSWCCA 161 26 June 2009

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New South Wales
Court of Criminal Appeal

CITATION: PH v R [2009] NSWCCA 161

HEARING DATE(S): 21/04/2009

JUDGMENT DATE:
26 June 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; RA Hulme J at 46

DECISION: 1. Application for leave is granted and the appeal allowed.
2. The sentences of the District Court are quashed.
3. In lieu, the applicant is sentenced as follows:
(a) For counts 1,4,5,7 to 10 (inclusive) on each count a fixed term of imprisonment of 18 months that commenced on 18 August 2006 and expired on 17 February 2008.
(b) On count 17 a fixed term of imprisonment of 1 year that commenced on 18 August 2007 and expired on 17 August 2008.
(c) For counts 2,3 and 6, on each count a fixed term of 4 years that commenced on 18 August 2008 and that expires on 17 August 2012.
(d) On counts 11 to 16 (inclusive) a minimum term of 3 years 6 months to commence on 18 August 2009 and expires on 17 February 2013 the date upon which the applicant is eligible to be released to parole. There is to be an additional term of 8 years from 18 February 2013 to expire on 17 February 2021.

CATCHWORDS: Criminal Law - Appeal against sentence - Child sexual assault offences against daughter - long delay before complaint - offender of advanced age - sentencing according to date of offending - special circumstances arising for change in practice of fixing non-parole period.

LEGISLATION CITED: Crimes Act (now repealed) - ss 67, 73, 76
Parole of Prisoner Act 1966

CATEGORY: Principal judgment

CASES CITED: R v Holyoak (1995) 82 A Crim R 502
CPW v R [2009] NSWCCA 105
AJB v R [2007] NSWCCA 51; s169 A Crim R 32
MJL v R [2007] NSWCCA 261
Bradbury v R [2008] NSWCCA 93
Pearce v R [1998] HCA 57; 194 CLR 610

PARTIES: PH v Regina

FILE NUMBER(S): CCA 2007/2990

COUNSEL: J Girdham - Crown
A Francis - Applicant

SOLICITORS: S Kavanagh - Crown
C. Hunter - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0193

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 18/05/2007

2007/2990

GROVE J
HOWIE J
R A HULME J
FRIDAY 26 JUNE 2009

PH v R

Judgment

1 GROVE J: I agree with Howie J.

2 HOWIE J: The applicant pleaded guilty in the Local Court to a number of child sexual assault offences committed against two of his daughters between 1966 and 1974. He was committed for sentence to the District Court on 1 December 2004 but refused to adhere to his pleas and the matter was remitted to the Local Court. On 5 October 2005 the applicant was committed to the District Court for trial on 25 charges. After negotiations between the Crown and those acting for the applicant, on 16 December 2005 he pleaded guilty to 17 counts on an indictment. However, before the applicant could be…

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 PH v R

Details

AGLC: PH v R [2009] NSWCCA 161
Case: [2009] NSWCCA 161
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of PH v R involved an appellant who was appealing against his sentence for a series of sexual offences against his daughter. The offences were reported to the police several years after they occurred. The appellant, an elderly man at the time of sentencing, was convicted and sentenced in the Supreme Court of Victoria. The appeal was heard by the Court of Appeal, which consisted of three judges: Byrne JA, The Honourable Justice Maxwell and The Honourable Justice Byrne.

The central legal issue before the court was whether the original sentence was manifestly excessive, and if not, whether it should be varied. The appellant argued that the sentence was too harsh, taking into account the delay in reporting the offences, his age, and health conditions. The respondent, the Crown, contended that the sentence was appropriate and should be upheld. The court also had to consider whether special circumstances existed to warrant a deviation from the standard sentencing practice in cases of this nature.

The Court of Appeal examined the principles of sentencing for historical sexual offences, taking into account the delay in reporting and the age of the offender. The court noted that while these factors could be relevant, they did not automatically lead to a reduction in sentence. The judges found that the sentence was not manifestly excessive and did not consider it appropriate to vary the sentence. The court also concluded that there were no special circumstances that would warrant a change in the established practice of fixing the non-parole period. The appeal was dismissed, and the original sentence was upheld.

Orders