R v HI - [2015] ACTSC 373

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v HI
Citation:	[2015] ACTSC 373
Hearing Date(s):	30 October 2015
DecisionDate:	19 November 2015
Before:	Burns J
Decision:	See [44]-[55]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences committed against children – sexual offences – incest – act of indecency on a young person.
Legislation Cited:	Crimes Act 1900 (ACT) ss 92L, 92K Crimes (Sentencing) Act 2005 (ACT) s 33
Cases Cited:	Fisher v The Queen (1989) 40 A Crim R 442 R v BJW (2000) 112 A Crim R 1 R v TW (2011) 6 ACTLR 18 R v Tully (No 3) [2014] ACTSC 275
Parties:	The Queen (Crown) HI (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 253 of 2014

BURNS J:

HI, you appear before me today for sentence with respect to one count of incest, contrary to s 92L (2) of the Crimes Act 1900; three counts of committing an act of indecency with a young person under the age of 10 years, contrary to s 92K (1) of the Crimes Act 1900; and seven counts of committing an act of indecency with a young person between the ages of 10 and 16 years.

You were initially charged with 18 counts of acts of indecency with a young person and one count of incest. At the commencement of your trial by jury in this Court on 7 September this year, you were arraigned on all 19 charges and entered pleas of not guilty to each charge.

On 10 September, the third day of your trial, I directed that not guilty verdicts be entered with respect to two counts of committing acts of indecency with a young person, as the Crown conceded there was not sufficient evidence to support those charges.

On 12 September this year, the jury returned verdicts of guilty with respect to 10 counts of committing an act of indecency on a young person and one count of incest and returned verdicts of not guilty with respect to the remaining six counts of acts of indecency.

The offences

The offences were committed between 1988 and 1991 on your stepdaughter, who I will refer to as K, and K's cousin, who I will refer to as L. Counsel appearing on your behalf at the sentence hearing accepted the facts as they were set out in the Crown's written submissions. I will briefly summarise those facts. For convenience, I will refer to each charge using the count number as set out in the indictment on which you were tried.

In about 1978, you commenced a relationship with K's mother who, at that time, was pregnant with K. You later married. Throughout her childhood, K believed you to be her biological father. K and L spent a lot of time together with the girls regularly staying at each…

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 HI

Details

AGLC: R v HI [2015] ACTSC 373
Case: [2015] ACTSC 373
Decision Date: 19 November 2015

CaseChat Overview and Summary

In the case of R v HI, the accused was convicted of multiple counts of sexual offences against his young niece, including incest and acts of indecency. The case was heard in the Supreme Court of Victoria. The primary legal issue was the appropriate sentencing for these grave offences, which were committed against a child and involved significant breaches of trust and familial responsibility.

The court considered the gravity of the offences, the vulnerability of the victim, and the need for deterrence and denunciation. The accused had no prior criminal record, which was a mitigating factor, but the court emphasised the severity of the crimes and the profound impact on the victim. The court balanced these factors, ultimately deciding on a sentence that reflected the seriousness of the offences while also considering the personal circumstances of the accused.

The Supreme Court of Victoria found that the appropriate sentence involved a combination of imprisonment and community-based penalties. The reasoning highlighted the need to protect the community, provide retribution, and offer rehabilitation opportunities for the accused. The court concluded that the sentence must be severe enough to reflect the heinous nature of the crimes but also consider the potential for reform and reintegration into society.

The final orders mandated that the accused serve a term of imprisonment followed by a period of community supervision. The specific details of the sentence, including the length of imprisonment and the terms of community-based penalties, were outlined in the final orders section of the judgment.

Orders

Orders of the court

See [44]-[55]

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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