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 foundLegislation 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 119Texts Cited: N/A Category: Sentence Parties: Regine (Crown)
AH (Offender)Representation: Counsel:
Solicitors:
Mr D G Pullinger
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
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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.
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In sentencing the Offender in respect of Count 1,…
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- AGLC
- R v AH [2019] NSWDC 39
- Case
- [2019] NSWDC 39
- Decision Date
CaseChat Overview and Summary
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
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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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