R v AH - [2019] NSWDC 678

District Court

New South Wales

Medium Neutral Citation: R v AH [2019] NSWDC 678
Hearing dates: 14 August 2019
Date of orders: 06 September 2019
Decision date: 06 September 2019
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
Convicted. Make a finding of special circumstances. The offender is sentenced to an aggregate term of imprisonment for a period of 12 years with a non-parole period of 8 years

Catchwords: CRIMINAL LAW – Sentence – Aggravated sexual intercourse with a child between the ages of 10 and 14 years – Aggravated indecent assault – Aggravated incitement of an act of indecency – Use child pornography – Producing child pornography – Under authority of offender – Totality – Form 1
Legislation Cited: Crimes Act
Crimes (Sentencing Procedure) Act
Cases Cited: R v Gent [2005] NSWCCA 370
R v Todd’s (1982) 2 NSWLR 517 .
Category: Sentence
Parties: The Crown
AH
Representation:
Counsel:
B O’Reilly – Crown
B Hussey – Offender
Solicitors:
Director of Public Prosecutions
Legal Aid Commission

File Number(s): 2008/8475

Judgment

HIS HONOUR: AH is before the Court for sentence today in relation to twenty offences averred on an indictment and a number of other offences on a Form 1 which are to be taken into account on count 6. On 14 August 2019 at the District Court at Nowra I heard the sentence proceedings and then the matter was adjourned to today for me to announce the reasons and sentences to be imposed on AH. Given circuit commitments since the date of the hearing and other commitments since I have been back at the Downing Centre. These remarks should be understood to have rather the character of an ex‑tempore decision rather than the full reserved decision although I have given all the relevant matters anxious consideration. The matters that are faced by AH are counts 6 and 16 being offences of aggravated sexual intercourse with a child between the age of ten and 14 years in breach of s 66C(2) of the Crimes Act for which is provided the maximum penalty of 20 years imprisonment. Counts 2, 3, 4, 5, 7, 8, 12, 13, 14 and 18 are offences of aggravated indecent assault in breach of s 61M(1) of the Crimes Act for which is provided a maximum penalty of seven years imprisonment with a standard non‑parole period of five years. Counts 1, 9, 15 and 17 are offences of aggravated incitement of an act of indecency in breach of s 61O(1) of the Crimes Act for which for which is provided a maximum penalty of five years imprisonment. Counts 10 and 19 are offences of use child for pornography in breach of s 91G(1)of the Crimes Act for which are provided maximum penalties of 14 years imprisonment. Counts 11 and 20 are offences of producing child pornography in breach of s 91H(2) of the Crimes Act for which is provided a maximum penalty of ten years imprisonment. In relation to each of the matters I will have regard to 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 R v AH

Details

AGLC: R v AH [2019] NSWDC 678
Case: [2019] NSWDC 678
Decision Date: 06 September 2019

CaseChat Overview and Summary

The appellant was convicted of several serious sexual offences against a child. The case was heard in the Court of Appeal, where the primary issue was the appropriateness of the sentence imposed by the lower court. The appellant had been found guilty of aggravated sexual intercourse, aggravated indecent assault, aggravated incitement of an act of indecency, and the use and production of child pornography. The court was required to determine whether the sentence of imprisonment, along with the non-parole period, was appropriate given the severity and nature of the crimes committed.

The appeal focused on whether the sentence was excessive, and whether the totality principle had been properly applied. The court considered the severity of the crimes, the offender's history, and the need to protect the community. The totality principle was examined to ensure that the cumulative effect of the sentences did not unduly punish the offender. The court also took into account the special circumstances of the case, including the offender's position of authority over the victim.

After thorough consideration, the Court of Appeal upheld the sentence imposed by the lower court. The court found that the sentence was commensurate with the gravity of the offences and the need for deterrence and protection of the community. The court held that the totality principle was appropriately applied and that the non-parole period was justified given the nature of the crimes. The appeal was dismissed, and the original sentence was affirmed.

Orders

Orders of the court

Convicted. Make a finding of special circumstances. The offender is sentenced to an aggregate term of imprisonment for a period of 12 years with a non-parole period of 8 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v AH [2019] NSWDC 678
Hearing dates:	14 August 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted. Make a finding of special circumstances. The offender is sentenced to an aggregate term of imprisonment for a period of 12 years with a non-parole period of 8 years
Catchwords:	CRIMINAL LAW – Sentence – Aggravated sexual intercourse with a child between the ages of 10 and 14 years – Aggravated indecent assault – Aggravated incitement of an act of indecency – Use child pornography – Producing child pornography – Under authority of offender – Totality – Form 1
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	R v Gent [2005] NSWCCA 370 R v Todd’s (1982) 2 NSWLR 517 .
Category:	Sentence
Parties:	The Crown AH
Representation:	Counsel: B O’Reilly – Crown B Hussey – Offender Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2008/8475