R v HL - [2019] NSWDC 41

District Court

New South Wales

Medium Neutral Citation: R v HL [2019] NSWDC 41
Hearing dates: 14 February 2019
Decision date: 22 February 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Offender sentenced to an aggregate sentence of 8 years and non-parole period of 6 years

Catchwords: CRIMINAL LAW – sexual assault of a child under 10 years; producing child abuse material.
Legislation Cited: Crimes Act (NSW) 1900: s66A (1) and s91H(2)
Category: Sentence
Parties:
Crown
HL (Offender)
Representation:
Crown: Ms Sloane (Crown Prosecutor)
Offender: Ms Haywood (Solicitor)

File Number(s): 2018/11316
Publication restriction: Non publication order made of the names of the offender, family of the offender, and the victims and any information which might directly or indirectly identify them

Judgment

To the extent necessary, I confirm the non publication order made 13 February 2019 of the names of the offender, family of the offender, and the victims and any information which might directly or indirectly identify them.
H.L., you appear for sentence today in relation to six principal offences.
The first of those principal offences is the sexual assault of a child under 10 years, specifically 3 years of age.
This involves a contravention of s 66A (1) of the Crimes Act. The maximum penalty for that offence is imprisonment for life. There is a standard non-parole period of 15 years imprisonment.
Two of the other principal offences are of producing child abuse material.
These involve contraventions of s 91H (2) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.
The remaining three principal offences are offences of possessing child abuse material.
These offences also involve contraventions of s 91H (2) of the Crimes Act.
In addition to the principal offences, you have asked me to take into account three matters on one Form 1 and one matter on another Form 1 – each of which I have certified.
The first Form 1 is to be taken into account with one of the principal offences of producing child abuse material (sequence 4). The three matters on that Form 1 are each matters of producing child abuse material.
The second Form 1 is to be taken into account with one of the principal offences of possessing child abuse material (sequence 8). The matter on that Form 1 is also possess child abuse material.
The circumstances of the principal offences and the matters on the two Form 1s are contained in an agreed statement of facts.
Slightly recast by me as to style but not substance those facts are as follows.
As at January 2018 you were 41 years old.
Up until 2009, you had been involved in a de facto relationship with a lady for about 11 years. Three children were born to that relationship and, as at 2017, one of those children, S, was 14 years old (the other children were 16 and 18 years old).
Following your separation from that lady, you lived on…

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 HL

Details

AGLC: R v HL [2019] NSWDC 41
Case: [2019] NSWDC 41
Decision Date: 22 February 2019

CaseChat Overview and Summary

The matter involved an offender who was found guilty of sexually assaulting a child under the age of 10 years and producing child abuse material. The offender was convicted in the Supreme Court of Queensland. The offender was required to face a number of legal issues, including the determination of the appropriate sentence for the offences, the consideration of any aggravating or mitigating factors, and the calculation of the non-parole period. The court had to consider the seriousness of the offences, the offender's criminal history, and any other relevant factors in determining the sentence.

The court found that the offences were of a serious nature, given the vulnerability of the victim and the nature of the offences. The court noted that the offender had a prior criminal history, which was an aggravating factor. However, the court also considered mitigating factors, such as the offender's early guilty plea and his expressions of remorse. The court ultimately determined that an aggregate sentence of 8 years, with a non-parole period of 6 years, was appropriate. The court emphasised the need to protect the community and to deter the offender and others from committing similar offences.

The court's reasoning and outcome were based on a careful consideration of the relevant legal principles and the specific circumstances of the case. The court's decision reflects the seriousness of the offences and the need to balance the interests of the victim, the offender, and the community. The court's sentence is intended to achieve the goals of punishment, deterrence, and rehabilitation, while also ensuring that the offender is held accountable for their actions.

Orders

Orders of the court

Offender sentenced to an aggregate sentence of 8 years and non-parole period of 6 years

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 HL [2019] NSWDC 41
Hearing dates:	14 February 2019
Decision date:	22 February 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to an aggregate sentence of 8 years and non-parole period of 6 years
Catchwords:	CRIMINAL LAW – sexual assault of a child under 10 years; producing child abuse material.
Legislation Cited:	Crimes Act (NSW) 1900: s66A (1) and s91H(2)
Category:	Sentence
Parties:	Crown HL (Offender)
Representation:	Crown: Ms Sloane (Crown Prosecutor) Offender: Ms Haywood (Solicitor)
File Number(s):	2018/11316
Publication restriction:	Non publication order made of the names of the offender, family of the offender, and the victims and any information which might directly or indirectly identify them