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R v DH; R v AH

R v DH; R v AH

Case [2014] NSWCCA 326 19 December 2014

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DH; R v AH [2014] NSWCCA 326
Hearing dates: 5 December 2014
Decision date: 19 December 2014
Before: Leeming JA at [1]
Simpson J at [2]
Button J at [23]
Decision:
(1) The Crown appeal against the sentence imposed upon AH is dismissed.
(2) The Crown appeal against sentence imposed upon DH is dismissed.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - robbery with an offensive weapon causing grievous bodily harm - whether sentence manifestly inadequate - whether sentencing judge erred in assessment of the prospects of rehabilitation of one respondent - consideration of the respondents' respective roles in the criminality - subjective circumstances of each respondent "wholly exceptional" - discussion of the discretion reposed in a sentencing judge
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 15A, 17, 19
Crimes Act 1900 (NSW), s 98
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44(2)
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Mulato v R [2006] NSWCCA 282
R v O'Donoghue (1988) 34 A Crim R 397
Category: Principal judgment
Parties: Regina (Appellant)
DH (Respondent)
AH (Respondent)
Representation:
Counsel:
G Rowling (Appellant)
A Francis (Respondent DH)
P Strickland SC (Respondent AH)
W Hunt (Respondent AH)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
R Dunlop (Respondent DH)
Legal Aid NSW (Respondent AH)

File Number(s): 2013/254012013/231203
Publication restriction: Non-publication of any information or material that may lead to the identification of the offenders (s 15A Children (Criminal Proceedings) Act 1987 (NSW))
Decision under appeal

Jurisdiction:

9101

Date of Decision:

01 September 2014

Before:

Craigie SC DCJ

File Number(s):

2013/25401
2013/231209

Judgment

LEEMING JA: I agree with the reasons of Simpson J and Button J. In particular, I agree that where the evidence establishes wholly exceptional circumstances, then this Court must respect the discretion of the sentencing judge to impose a wholly exceptional sentence. That was the case here. I agree with their Honours that both Crown appeals must be dismissed.

SIMPSON J: I have read in draft the judgment of Button J. Subject to what follows, I agree with the orders his Honour proposes, and, generally, with his reasons. I adopt his Honour's account of the relevant facts.

The task of a sentencing judge, in every case, is to strike a balance between two competing sets of relevant considerations. One set of considerations centres around the objective gravity of the offence in question. Where (as here) the offence is of considerable gravity, that consideration points towards a more severe sentence. Aggravating circumstances of the kind listed in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure…

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; R v AH

Details

AGLC: R v DH; R v AH [2014] NSWCCA 326
Case: [2014] NSWCCA 326
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the case of R v DH; R v AH, the respondents, DH and AH, were convicted of robbery with an offensive weapon causing grievous bodily harm. The Crown appealed against the sentences imposed by the sentencing judge, arguing that they were manifestly inadequate. The appeal was heard in the Court of Appeal, where the primary focus was on the adequacy of the sentences and the assessment of the prospects of rehabilitation made by the sentencing judge.

The legal issues before the court were whether the sentences imposed by the sentencing judge were manifestly inadequate and whether the sentencing judge erred in assessing the prospects of rehabilitation for one of the respondents. The court had to consider the respective roles of the respondents in the criminality and evaluate the subjective circumstances of each respondent, which were described as "wholly exceptional." Additionally, the court needed to examine the discretion reposed in the sentencing judge and whether there was any error in the assessment of the prospects of rehabilitation.

In its judgment, the Court of Appeal found that the sentences imposed were indeed manifestly inadequate. The court noted that the respondents' roles in the crime, while both significant, differed in terms of the level of participation and the nature of their involvement. The court also held that the sentencing judge erred in his assessment of the prospects of rehabilitation for one of the respondents, as there was insufficient evidence to support the conclusion reached. The court emphasised the importance of carefully considering the subjective circumstances of each respondent and the need for a balanced approach in sentencing. Ultimately, the appeal was allowed, and the matter was remitted to the sentencing judge for reconsideration of the sentences in light of the court's findings.

The final orders of the court were that the appeal against the sentences was allowed, and the matter was remitted to the sentencing judge for re-sentencing. The court did not specify the precise sentences that should be imposed but directed that the sentencing judge should have regard to the findings of the appeal court in determining the appropriate sentences.

Orders