PH v The King - [2023] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PH v R [2023] NSWCCA 176
Hearing dates: 3 May 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Before: Simpson AJA at [1]
Rothman J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years and 2 months.

Catchwords:
CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — sexual offending and breach of ADVOs — whether sentencing judge failed to take into account impact of COVID-19 pandemic on custodial imprisonment — where Crown concedes error on that point — whether sentencing judge erred in consideration of two aggravating factors said to be inherent in the criminality of the offence — appeal allowed on COVID-19 ground — applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic & Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Church v R [2012] NSWCCA 149
Jonson v R [2016] NSWCCA 286
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McKinnon v R [2020] NSWCCA 106
PC v R [2022] NSWCCA 107

Category: Principal judgment
Parties: PH (Applicant)
Crown (Respondent)
Representation:
Counsel:
C McGorey (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the NSW Director of Public Prosecutions (Respondent)

File Number(s): 2020/17855; 2020/57716; 2020/234862
Publication restriction:
An order pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW) prohibiting the publication of the name or any matter which could identify the identity of the victim.
An order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) suppressing the name of the applicant.
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

25 October 2021

Before:

N Williams DCJ

File Number(s):

2020/17855, 2020/57716, 2020/234862

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from a sentence imposed on him in respect of one count of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act 1900 (NSW) and four counts of contravening an Apprehended Domestic Violence Order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The applicant pleaded guilty in the District Court to all counts.

At the time of the offending, the applicant was living with the victim’s mother, the victim and three other children. During the period 2016-2017, the victim often felt scared at night and was unable to sleep on her own.…

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 The King

Details

AGLC: PH v The King [2023] NSWCCA 176
Case: [2023] NSWCCA 176
Decision Date: 14 July 2023

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, PH, against a sentence imposed by a lower court. The sentence was handed down following PH's conviction for multiple sexual offences and breaches of an Apprehended Domestic Violence Order (ADVO). The appeal was heard by the High Court of Australia, which was tasked with determining whether the original sentencing judge had erred in his assessment of certain factors that influenced the severity of the sentence.

The central legal issues before the court were whether the sentencing judge had failed to appropriately consider the impact of the COVID-19 pandemic on the imposition of a custodial sentence, and whether the judge had correctly assessed two aggravating factors inherent in the nature of the crimes committed. The Crown conceded that the sentencing judge had not adequately taken into account the impact of the pandemic, which was a significant consideration given the health risks associated with imprisonment during this period. Additionally, the court needed to scrutinise the sentencing judge's reasoning regarding the two aggravating factors to ensure they were correctly identified and appropriately weighed.

The High Court found that the sentencing judge had indeed erred by not considering the impact of the COVID-19 pandemic on the decision to impose a custodial sentence. This oversight was significant enough to warrant a re-sentencing. Furthermore, the court determined that while the sentencing judge had identified the aggravating factors, he had not adequately justified why these factors warranted such a severe sentence. The appeal was thus allowed on the ground of the failure to consider the pandemic's impact, and the case was remitted to the lower court for re-sentencing.

Following the determination that the original sentence was flawed, the High Court ordered that PH be resentenced by the lower court. The new sentence must take into account the impact of the COVID-19 pandemic on custodial imprisonment and ensure that any aggravating factors are properly justified and weighed in the context of the overall sentence. The court emphasised the importance of comprehensive and accurate consideration of all relevant factors in the sentencing process.

Orders