R v DH - [2022] NSWDC 209

District Court

New South Wales

Medium Neutral Citation: R v DH [2022] NSWDC 209
Hearing dates: 6 May 2022
Date of orders: 26 May 2022
Decision date: 26 May 2022
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [100]

Catchwords:
CRIMINAL LAW –– Sexual intercourse without consent – Act of indecency – Acts committed on sleeping victim – Where sexual acts were recorded by the offender
SENTENCE –– Sexual intercourse without consent found to be around mid-range of objective seriousness – Indecent assault found to be below mid-range of objective seriousness – Victim impact statement considered by the court – Where the offender has previous convictions for sexual offences – Where the offender could not establish that he was a victim of sexual offences in his childhood – Where the court accepts that the offender was suffering from depression – Where the offender suffered from drug and alcohol use as well as gambling – Where the offenders custody is rendered more onerous due to his health – Special circumstances found – Average risk of re-offending – Impacts of COVID-19 on incarceration considered

Legislation Cited:
Crimes Act 1900 (NSW) ss 61I, 61L
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 30E
Crimes (Administration of Sentences) Act 1999 (NSW) s 276

Cases Cited:
Zhao v R [2019] NSWCCA 203
R v Hibberd [2009] NSWCCA 20
EJDG v R [2012] NSWCCA 251
Veen v The Queen[No 2] (1998) 164 CLR 465
Moodie v R [2020] NSWCCA 160

Category: Sentence
Parties: Regina (the Crown)
DH (the Offender)
Representation:
Ms H. Cantor (Solicitor Advocate for the Crown)
Mr K. Averre (Counsel for the Offender)
Solicitors:
Director of Public Prosecutions (the Crown)
Legal Aid NSW (the Offender)

File Number(s): 2020/247115
Publication restriction: As appropriate s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578 of the Crimes Act 1900 (NSW) apply in relation to any information that will or is likely to reveal the identity of the victim or the offender’s stepchild.

Judgment

On 15 December 2021, following a trial which commenced on 07 December 2021, the offender was found guilty of three charges as follows:

Between 31 December 2008 and 18 August 2020 at Queens Park in the State of New South Wales, had sexual intercourse with [victim] without her consent, knowing that she was not consenting
Between 31 December 2008 and 30 November 2018 at Queens Park in the State of New South Wales, assaulted [victim] and at the time of the assault committed an act of indecency on [victim]
Between 31 December 2008 and 18 August 2020 at Queens Park in the State of New South Wales, had sexual intercourse with [victim] without her consent, knowing that she was not consenting.

Counts 1 and 3 are offences contrary to s 61I of the Crimes Act 1900 (NSW) (the 1900 Act) which carry a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years imprisonment. The offence that is the subject of count 2…

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 DH

Details

AGLC: R v DH [2022] NSWDC 209
Case: [2022] NSWDC 209
Decision Date: 26 May 2022

CaseChat Overview and Summary

The case of R v DH involved the defendant, DH, who was charged with sexual intercourse without consent and an act of indecency committed against a sleeping victim. The matter was heard in the Supreme Court of [Jurisdiction]. The court had to determine the appropriate sentence for the defendant, taking into account the seriousness of the offences, the impact on the victim, and the defendant's personal circumstances.

The court was required to assess the objective seriousness of the offences, with sexual intercourse without consent considered to be around mid-range and the act of indecency below mid-range. It also had to consider the victim impact statement, the defendant's previous convictions for sexual offences, and the defendant's claim of being a victim of sexual offences in his childhood, which the court did not accept. The court acknowledged that the defendant was suffering from depression, drug and alcohol use, and gambling issues, as well as health issues that made his custody more onerous. The risk of re-offending was considered to be average, and the impacts of COVID-19 on incarceration were also taken into account.

After careful consideration, the court found special circumstances and imposed a sentence that reflected the nature and circumstances of the offences, the need for denunciation, and the defendant's personal circumstances. The court also considered the impact of the COVID-19 pandemic on incarceration. The defendant was sentenced to a term of imprisonment with specific parole conditions.

Orders

Orders of the court

See [100]

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 DH [2022] NSWDC 209
Hearing dates:	6 May 2022
Date of orders:	26 May 2022
Decision date:	26 May 2022
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [100]
Catchwords:	CRIMINAL LAW –– Sexual intercourse without consent – Act of indecency – Acts committed on sleeping victim – Where sexual acts were recorded by the offender SENTENCE –– Sexual intercourse without consent found to be around mid-range of objective seriousness – Indecent assault found to be below mid-range of objective seriousness – Victim impact statement considered by the court – Where the offender has previous convictions for sexual offences – Where the offender could not establish that he was a victim of sexual offences in his childhood – Where the court accepts that the offender was suffering from depression – Where the offender suffered from drug and alcohol use as well as gambling – Where the offenders custody is rendered more onerous due to his health – Special circumstances found – Average risk of re-offending – Impacts of COVID-19 on incarceration considered
Legislation Cited:	Crimes Act 1900 (NSW) ss 61I, 61L Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 30E Crimes (Administration of Sentences) Act 1999 (NSW) s 276
Cases Cited:	Zhao v R [2019] NSWCCA 203 R v Hibberd [2009] NSWCCA 20 EJDG v R [2012] NSWCCA 251 Veen v The Queen[No 2] (1998) 164 CLR 465 Moodie v R [2020] NSWCCA 160
Category:	Sentence
Parties:	Regina (the Crown) DH (the Offender)
Representation:	Ms H. Cantor (Solicitor Advocate for the Crown) Mr K. Averre (Counsel for the Offender) Solicitors: Director of Public Prosecutions (the Crown) Legal Aid NSW (the Offender)
File Number(s):	2020/247115
Publication restriction:	As appropriate s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578 of the Crimes Act 1900 (NSW) apply in relation to any information that will or is likely to reveal the identity of the victim or the offender’s stepchild.