Criminal law - Sentencing - Multiple offences by juvenile involving three different children - Further offences committed on two of the children when offender aged 18 and 19 - Sentenced by District Court Judge to several concurrent terms of imprisonment of 2 years suspended for 2 years together with an intensive supervision order for 2 years for remaining offences - Crown appeal against sentence - Sentences involved penile oral and anal penetration - Principles to be applied - Suspended sentences substituted by immediate sentence of imprisonment for a total of 8 years with eligibility for parole

Legislation:

Criminal Code, ch XXXI, s 319(1), s 320(2), (4)

Sentencing Act 1995, s 76

Young Offenders Act1994, s 46

Result:

Appeal allowed, sentences set aside and substituted by a total sentence of 8 years with eligibility for parole

Category: A

Representation:

Counsel:

Appellant: Mr R E Cock QC & Ms J A Girdham
Respondent: Mr T F Percy QC & Mr N J Mullany

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Max Crispe

Case(s) referred to in judgment(s):

Broome v R [1999] WASCA 202
Byrne v The Queen (1998) 104 A Crim R 456
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dick v The Queen (1994) 75 A Crim R 303
Dinsdale v The Queen (1999) 202 CLR 321
Ginder (1987) 23 A Crim R 1
Hinckley, unreported; CCA SCt of WA; Library No 7746; 21 July 1989
Hughes (1983) 10 A Crim R 125
Isaacs (1997) 90 A Crim R 587
Laposte v The Queen [1970] WAR 87
Liu (1989) 40 A Crim R 468
Longley v The Queen [2001] WASCA 71
Macey v The Queen, unreported; CCA SCt of WA; Library No 930298; 27 May 1993
Mordecai (1985) 18 A Crim R 149
O'Malley v French (1971) 2 SASR 110
Podirsky (1989) 43 A Crim R 404
Price (1988) 33 A Crim R 539
R v McDonald [2000] WASCA 336
R v N [1998] 2 NZLR 272
R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998
R v Stehbens (1976) 14 SASR 240
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Ryan v The Queen [2001] HCA 21; (2001) 75 ALJR 815
Sandford (1994) 72 A Crim R 160
Woods v The Queen (1995) 14 WAR 341

Case(s) also cited:

AB v The Crown (1999) 198 CLR 111
Astill v The Queen (No 2) (1992) 64 A Crim R 289
Byrne v R (1998) 104 A Crim R 456
Dick v R (1994) 75 A Crim R 303
Dinsdale v R

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 Hough

Details

AGLC: R v Hough [2002] WASCA 42
Case: [2002] WASCA 42
Decision Date: 1 MARCH 2002

CaseChat Overview and Summary

The defendant, Hough, was convicted of multiple offences against three different children, committed over several years. The offences involved penile oral and anal penetration, and two of the victims were re-offended against when Hough was aged 18 and 19. The District Court sentenced Hough to several concurrent terms of imprisonment of two years, suspended for two years, together with an intensive supervision order for two years for the remaining offences. The Crown appealed the sentence, arguing that it was manifestly inadequate.

The court had to determine the principles that should guide sentencing in such cases, particularly when offences against children are involved. The court examined the need for deterrence, denunciation, and the protection of society, while also considering the offender's age, remorse, and potential for rehabilitation. The court emphasised that sentences for such serious offences should not be suspended, given the gravity of the crimes and the need to protect potential future victims.

The court found that the original sentence was manifestly inadequate, as it did not appropriately reflect the seriousness of the offences and the need for punishment and deterrence. The court considered that the crimes involved significant breaches of trust, caused substantial harm to the victims, and had a lasting impact on their lives. The court substituted the suspended sentences with immediate sentences of imprisonment, totalling eight years, with eligibility for parole. The court emphasised the importance of ensuring that sentences for such offences appropriately reflect their gravity and the need to protect society.

Orders