R v Hanly

[2022] NSWDC 447

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hanly [2022] NSWDC 447

Hearing dates:

18/5/22-27/5/22, 15/7/22, 19/8/22

Date of orders:

19/8/22

Decision date:

19 August 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a Community Corrections Order for 3 years. The following conditions are to apply:

1. Not to commit any offence.

2. Must appear before the Court if called upon to do so.

3. Accept the supervision of Community Corrections.

4. Undertake any counselling or treatment as directed by Community Corrections.

5. Undertake 350 hours community service.

Catchwords:

Crime – Sentence - Indecent assault of a child under the age of 16 years.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BB v R [2021] NSWCCA 283

Jonson v R [2016] NSWCCA 286

R v Edwards [1996] 90 A Crim R 510

R v KNL [2005] NSWCCA 260

R v PGM [2008] NSWCCA 172

RvShortland [2018] NSWCCA 34

Category:

Sentence

Parties:

NSW DPP – Crown
Philip Hanly - Offender

Representation:

Mr D Noll for Crown
Mr M Hobart SC and Mr D Cohen for Offender

File Number(s):

202/40690

Publication restriction:

STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT. NAMES OF CHILDREN ANONYMISED.

Judgment

1. The offender Mr Philip Hanly stood trial before a jury earlier this year on a charge under s 61M(2) of the Crimes Act 1900 being an offence of indecent assault of a child under the age of 16 years. On 27 May 2022 the jury found him guilty of that offence and he is now to be sentenced.

2. The maximum penalty for the offence is ten years’ imprisonment and a standard non-parole period of eight years is specified. The maximum penalty and the standard non-parole period are, of course, important guideposts in the sentencing exercise to which I have had regard.

FACTS

3. It is for me to determine the facts on which the offender is to be sentenced. However, I must do so in a manner which is consistent with the jury’s verdict. Any aggravating matters must be proved beyond reasonable doubt while matters in mitigation need only be proved on the balance of probabilities. I find the following facts:

4. On 19 August 2018 the victim and her father attended a play day at the home of the offender’s parents-in-law at Malabar. The only persons present were the offender and his five-year-old daughter, and the victim and her father. Where necessary in these remarks to refer to the offender’s then 5 year old daughter, I will call her “Jane” (a pseudonym), which is not her real name. The children generally were playing downstairs while the two adults remained upstairs during which time they drank some beer.

5. At some stage the offender went downstairs. At that time he was alone with the victim while her father remained upstairs. The victim, who was looking out a window, was approached from behind by the offender who took hold of her hand and placed it against his…