R v AH - [2019] NSWDC 39

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AH [2019] NSWDC 39
Hearing dates: 07 February 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [103] – [104]

Catchwords:
SENTENCING – Child sexual assault – abuse of trust – step father and step daughter – injection of drugs

SENTENCING – Assistance to authorities – Question of whether Ellis discount should be applied – limited utility of admission
SENTENCING – Subjective considerations on sentence – first time offender – remorse established – reasonable prospects of rehabilitation – special circumstances found
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518
McDowall v R [2019] NSWCCA 29
Panetta v R [2016] NSWCCA 85
R v ABS [2005] NSWCCA 255
R v Cheikh; R v Hoete [2004] NSWCCA 448
R v Kennedy [2000] NSWCCA 527
R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56
Tazelaar v R [2009] NSWCCA 119
Texts Cited: N/A
Category: Sentence
Parties: Regine (Crown)
AH (Offender)
Representation:
Counsel:
Mr D G Pullinger
Solicitors:
Office of the Director of Public Prosecutions

File Number(s): 2017/50250
Publication restriction: Section 578A Crimes Act 1900 (NSW) and section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) apply

REMARKS ON SENTENCE

The Offender AH has pleaded guilty to 7 offences being:

Aggravated sexual intercourse with a child between 14 and 16 contrary to s 66C(4) of the Crimes Act 1900 (NSW). [1] This offence carries a maximum penalty of 12 years imprisonment with a standard non-parole of 5 years imprisonment.
1. Hereinafter the 1900 Act.

Aggravated indecent assault contrary to section 61M(2) of the 1900 Act. This offence carries a maximum penalty of 10 years imprisonment with a standard non parole period of 8 years imprisonment.

Sexual intercourse with a child between 16 and 18 under special care contrary to section 73(1) of the 1900 Act. This offence carries a maximum penalty of 8 years imprisonment.

Supply a prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 2000 penalty units and/or 15 years imprisonment.

Sexual intercourse with a child between 16 and 18 under special care contrary to section 73(1) of the 1900 Act. This offence carries a maximum penalty of 8 years imprisonment.

Supply a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 2000 penalty units and/or 15 years imprisonment.

Sexual intercourse with a child between 16 and 18 under special care contrary to section 73(1) of the 1900 Act. This offence carries a maximum penalty of 8 years imprisonment.

In sentencing the Offender in respect of Count 1,…

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 39
Case: [2019] NSWDC 39
Decision Date: 01 March 2019

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the respondent, who had been convicted of sexually assaulting his step-daughter. The matter was heard in the Supreme Court of Victoria. The appeal centred on the quantum of the sentence imposed, with the respondent arguing for a reduction. The legal issues that arose for determination included whether the court should apply the Ellis discount for the respondent's limited assistance to the authorities, and whether special circumstances existed that warranted a departure from the general principles of sentencing for child sexual assault.

The court considered the principles of sentencing, focusing on the nature and circumstances of the offence, the character and antecedents of the offender, and the impact of the crime on the victim. It was noted that the respondent had abused a position of trust, injecting drugs into the victim and engaging in sexual acts with her. The court recognised the gravity of the offence and the particular harm caused by the respondent's actions. However, it also took into account the limited utility of the respondent's admission of guilt and his early cooperation with authorities, which was not deemed sufficient to warrant a significant discount under the Ellis principle. The court further examined the subjective considerations, including the respondent's lack of a criminal record, the demonstration of remorse, and the reasonable prospects of rehabilitation. Special circumstances were found, relating to the familial relationship between the offender and the victim, which the court deemed relevant to the sentencing process.

The court concluded that while the offence was serious, the respondent's early cooperation, remorse, and prospects for rehabilitation warranted a reduction in sentence. The court allowed the appeal and reduced the sentence by imposing a term of imprisonment with a non-parole period of three years. The court emphasised the importance of ensuring that the sentence reflected the gravity of the offence while also considering the individual circumstances of the offender and the potential for rehabilitation.

Orders

Orders of the court

See [103] – [104]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 39
Hearing dates:	07 February 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [103] – [104]
Catchwords:	SENTENCING – Child sexual assault – abuse of trust – step father and step daughter – injection of drugs SENTENCING – Assistance to authorities – Question of whether Ellis discount should be applied – limited utility of admission SENTENCING – Subjective considerations on sentence – first time offender – remorse established – reasonable prospects of rehabilitation – special circumstances found
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518 McDowall v R [2019] NSWCCA 29 Panetta v R [2016] NSWCCA 85 R v ABS [2005] NSWCCA 255 R v Cheikh; R v Hoete [2004] NSWCCA 448 R v Kennedy [2000] NSWCCA 527 R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56 Tazelaar v R [2009] NSWCCA 119
Texts Cited:	N/A
Category:	Sentence
Parties:	Regine (Crown) AH (Offender)
Representation:	Counsel: Mr D G Pullinger Solicitors: Office of the Director of Public Prosecutions
File Number(s):	2017/50250
Publication restriction:	Section 578A Crimes Act 1900 (NSW) and section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) apply