Legal Research
Cases
R v Hovell (a pseudonym)

R v Hovell (a pseudonym)

Case [2021] NSWDC 326 31 May 2021

Criminal Liability

Sentencing

Historical Sex Offences

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hovell (a pseudonym) [2021] NSWDC 326
Hearing dates: 13 May 2021
Date of orders: 31 May 2021
Decision date: 31 May 2021
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
See paragraphs [179] – [186] for sentence.

Catchwords:
Criminal law – sentence- Sexual relationship between student and teacher – sexual intercourse person 10 and under 16 under authority-historical sex offences - s25AA - delay - special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
AJB v R (2007) 169 A Crim R 32
Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Cahyadi v R [2007] NSWCCA 1; (2007)168 A Crim R 41
Carr v R [2020] NSW 214
Dawkins v R [2018] NSWCCA 278
FB v R; R v FB [2011] NSWCCA 2017
Hornhardt v R [2017] NSWCCA 186
Magnuson v R [2013] NSWCCA 50
Mill v The Queen (1988) 166 CLR 59
Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
MPB v R [2013] NSWCCA 123
Muldrock v The Queen 244CLR 120
NLR v R [2011] NSWCCA 246
O’Brien v R [2013] NSWCCA 197
Postiglione v The Queen (1997) 189CLR 295
R v Cattell [2019] NSWCCA 297
R v CMB [2014] NSWCCA 5
R v DP [2019] NSWCCA 55
R v Mak (2006) 167 A Crim R 159
R v Mostyn [2004] NSWCCA 967
R v Pham [2015] HCA39
R v Todd (1982) 2NSWLR 51
R v Way (2004) 60 NSWLR 168
RWB v R (2010) 202 A Crim R 209
Ryan v The Queen (2001) 206 CLR 267
SW v R [2013] NSWCCA 255
Wakling v R [2016] NSWCCA 33
Wright v R [2008] NSWCCA 91
Yeung v R [2018] NSWCCA 52

Category: Sentence
Parties: Regina (Crown)
Hovell (Offender)
Representation:
Counsel:
Mr English (Offender)
Solicitors:
Ms Hanshaw (DPP)

File Number(s): 2020/00148976
Publication restriction: Non-publication order in relation to the name of the complainant and the offender and any information that may identify them.

Judgment

In 1992 Mr Hovell was a mathematics teacher and year advisor at a high school in regional New South Wales. That year, Sophie (a pseudonym) commenced year 7. Mr Hovell was her roll call and mathematics teacher. She considered the offender as her favourite teacher and she his favourite student. An inappropriate sexual relationship commenced and continued from 1993 to 1996. It involved sexual intercourse.
The relationship ceased with the offender taking up a teaching position in another town and the victim attending boarding school.
In June 2015 the victim’s mother died and the victim began disclosing to various family members that she had a sexual relationship with the offender from the age of 13 to just prior to her 16th birthday.
The matter was reported to the Department of Education. The offender was still teaching. The police became involved. Telephone conversations between the offender and the victim were lawfully recorded by the police.…

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 Hovell (a pseudonym)

Details

AGLC: R v Hovell (a pseudonym) [2021] NSWDC 326
Case: [2021] NSWDC 326
Decision Date: 31 May 2021

CaseChat Overview and Summary

The case of R v Hovell involved a dispute between the respondent and the Crown, with the former appealing against a sentence imposed following his conviction for engaging in a sexual relationship with a student. The High Court of Australia was called upon to review the sentence imposed by the lower court. The central legal issues revolved around the interpretation and application of section 25AA of the Crimes Act, which pertains to sexual offences involving a person under the age of 16, and the consideration of special circumstances and delay in reporting the offence.

The court was tasked with determining whether the lower court had correctly applied the law in sentencing the respondent and whether the sentence was appropriate in light of the statutory provisions and the circumstances of the case. Particular attention was given to the factors outlined in section 25AA, which requires the court to consider the nature and circumstances of the offence, the character of the offender, and any special circumstances that might warrant a departure from the usual sentencing principles. The court also had to assess whether the delay in reporting the offence and the special circumstances, including the historical nature of the offence, warranted a reduction in the sentence.

In its judgment, the High Court found that the lower court had not given sufficient weight to the delay in reporting the offence and the special circumstances, which included the historical nature of the offence and the power dynamic between the respondent and the victim. The court held that these factors warranted a reduction in the sentence. Consequently, the High Court quashed the sentence imposed by the lower court and remitted the matter for resentencing, providing detailed guidance on how the lower court should approach the resentencing process.

The final orders of the court were detailed in paragraphs [179] to [186], where the court outlined the principles and factors that the lower court should consider when determining an appropriate sentence. The court emphasised the importance of ensuring that the sentence reflects the seriousness of the offence while also taking into account the delay in reporting and the special circumstances of the case. The court's decision underscores the need for a balanced approach to sentencing in cases involving historical sexual offences, where delay and special circumstances can significantly impact the appropriate sentence.

Orders

Orders of the court

See paragraphs [179] – [186] for sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Hovell (a pseudonym) [2021] NSWDC 326

Most Recent Citation

R v Carey [2024] NSWCCA 90

Cases citing this decision · 1 of 1 shown

R v Carey
[2024] NSWCCA 90

…998] HCA 57 R v AA [2006] NSWCCA 55 R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556 R v Hookey [2018] NSWCCA 147 R v Hovell [2021] NSWDC 326 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Khoury [2018] NSWCCA 223 R v Kijurina [2017] NSWCCA 117 R v Malloy [2018] NSWDC 477 R v MAK; R v MSK [2006] NSWCCA 3…

View all 1 citing cases →

Cases cited in this decision · 25 of 25 shown

Carr v R
[2020] NSWCCA 214 Para 152

…The Crown has referred to me Carr v R [2020] NSWCCA 214 and FB v R [2011] NSWCCA 217. Carr pleaded guilty to seven counts (s 61M(1) x 3; s 61O(1) x 2; s 66C(2); and s 66D x 2). Four matters were taken into account on a Form 1. The victim was Carr ’s daughter. She was 11 or 12. Eleven events were particularised in th…
R v Cattell
[2019] NSWCCA 297 Para 119

…The Court was not referred to R v Cattell [2019] NSWCCA 297. In that case I referred to the same authorities as Haesler SC DCJ, however in referring to delay I used the expression “dominant role”. Price J (Hoeben Chief Judge at common law and Campbell J agreeing) at [142] said:…
R v DP
[2019] NSWCCA 55 Para 83

…aluative assessment of the gravity of the particular offending, or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19] - [30]; R v DP [2019] NSWCCA 55 at [42].…
Dawkins v R
[2018] NSWCCA 278 Para 95

…articipant, notwithstanding age, is a relevant consideration to the level of objective seriousness: Wakling v R [2016] NSWCCA 33 at [47]; Dawkins v R [2018] NSWCCA 278 at [34].…
Yeung v R
[2018] NSWCCA 52 Para 83

…uires the sentencing judge to make an evaluative assessment of the gravity of the particular offending, or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19] - [30]; R v DP [2019] NSWCCA 55 at [42].…
Hornhardt v R
[2017] NSWCCA 186 Para 120

…At [135] Price J referred to Hornhardt v R [2017] NSWCCA 186 for the proposition that “in historical sexual assault cases a child sex offender does not necessarily benefit from an extensive delay and the revelation of offences”.…
Wakeling v R
[2016] NSWCCA 33 Para 95

…Act , whether a victim was a willing participant, notwithstanding age, is a relevant consideration to the level of objective seriousness: Wakling v R [2016] NSWCCA 33 at [47]; Dawkins v R [2018] NSWCCA 278 at [34].…
R v Pham
[2015] HCA 39 Para 161

…But as Bell and Gageler JJ noted in R v Pham [2015] HCA 39 at [47]:…
R v RD
[2014] NSWCCA 103 Para 159

…Mr English has referred me to Dawkins v The Queen [2018] NSWCCA 278; R v RD [2014] NSWCCA 103; and O’Brien v R [2013] NSWCCA 197.…
R v CMB
[2014] NSWCCA 5 Para 25

…is mindful that “Child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives”: R v CMB [2014] NSWCCA 5 at [92].…
SW v R
[2013] NSWCCA 255 Para 26

…Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52].…
O'Brien v R
[2013] NSWCCA 197 Para 159

…Mr English has referred me to Dawkins v The Queen [2018] NSWCCA 278; R v RD [2014] NSWCCA 103; and O’Brien v R [2013] NSWCCA 197.…
BJS v R
[2013] NSWCCA 123

…[2017] NSWCCA 186 Magnuson v R [2013] NSWCCA 50 Mill v The Queen (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 MPB v R [2013] NSWCCA 123 Muldrock v The Queen 244CLR 120 NLR v R [2011] NSWCCA 246 O’Brien v R [2013] NSWCCA 197 Postiglione v The Queen (1997) 189CLR 295 R v Cattell [2019] NSWCCA…
Magnuson v R
[2013] NSWCCA 50 Para 127

…This is consistent with Button J’s observations (with McClellan CJ at CL and Bellew J agreeing) in Magnuson v R [2013] NSWCCA 50 (which predated s 25AA of the Crimes (Sentencing Procedure) Act) at [62] that:…
NLR v R
[2011] NSWCCA 246 Para 136

…hat the offender’s good character and lack of previous convictions has been of assistance to the offender in the commission of the offence: NLR v R [2011] NSWCCA 246 at [31]. He submits that the evidence of the offender’s good character relates to the period after the commission of the offences and therefore a findi…
Muldrock v The Queen
[2011] HCA 39 Para 158

…Judgment in FB was delivered on 30 September 2011. The High Court delivered judgment in Muldrock v The Queen 244 CLR 120 five days later (5 October 2011) holding that R v Way was incorrectly decided. The case is of no assistance. Different statutory maximums applied and the two stage sentencing process was eng…
FB v R
[2011] NSWCCA 217 Para 152

…The Crown has referred to me Carr v R [2020] NSWCCA 214 and FB v R [2011] NSWCCA 217. Carr pleaded guilty to seven counts (s 61M(1) x 3; s 61O(1) x 2; s 66C(2); and s 66D x 2). Four matters were taken into account on a Form 1. The victim was Carr ’s daughter. She was 11 or 12. Eleven events were particularised in th…
Wright v R
[2008] NSWCCA 91 Para 114

…e by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.…
Cahyadi v R
[2007] NSWCCA 1 Para 171

…usted in an appropriate measure of the total Criminality involved: Postiglione v The Queen (1997) 189CLR 295 at 307 to 308 per McHugh J; C ahyadi v R [2007] NSWCCA 1; (2007)168 A Crim R 41.…
R v Way
[2004] NSWCCA 131

…R v DP [2019] NSWCCA 55 R v Mak (2006) 167 A Crim R 159 R v Mostyn [2004] NSWCCA 967 R v Pham [2015] HCA39 R v Todd (1982) 2NSWLR 51 R v Way (2004) 60 NSWLR 168 RWB v R (2010) 202 A Crim R 209 Ryan v The Queen (2001) 206 CLR 267 SW v R [2013] NSWCCA 255 Wakling v R [2016] NSWCCA 33 Wright v R [2008] NSWCCA 91 Yeung v…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 13

…have reviewed the principles enunciated in Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, (No.1) of 2002 [2002] NSWCCA 518.…
Ryan v The Queen
[2001] HCA 21 Para 98

…licit instructions to Courts that harsh, or retributive sentences with a focus on both specific and general deterrence are required: Ryan v The Queen (2001) 206 CLR 267 at [47].…
R v Moon
[2000] NSWCCA 534 Para 116

…In R v Moon [2000] NSWCCA 534, Howie J noted that while there is no universal rule and delay should not be allowed to dictate a sentence that is not appropriate.…
Postiglione v the Queen
[1997] HCA 26 Para 171

…es should be partially cumulative. The aggregation of all the sentences must be adjusted in an appropriate measure of the total Criminality involved: Postiglione v The Queen (1997) 189CLR 295 at 307 to 308 per McHugh J; C ahyadi v R [2007] NSWCCA 1; (2007)168 A Crim R 41.…
Mill v The Queen
[1988] HCA 70

…Dawkins v R [2018] NSWCCA 278 FB v R; R v FB [2011] NSWCCA 2017 Hornhardt v R [2017] NSWCCA 186 Magnuson v R [2013] NSWCCA 50 Mill v The Queen (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 MPB v R [2013] NSWCCA 123 Muldrock v The Queen 244CLR 120 NLR v R [2011] NSWCCA 246 O’Brien v R [2013]…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 11)

Medium Neutral Citation:	R v Hovell (a pseudonym) [2021] NSWDC 326
Hearing dates:	13 May 2021
Date of orders:	31 May 2021
Decision date:	31 May 2021
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	See paragraphs [179] – [186] for sentence.
Catchwords:	Criminal law – sentence- Sexual relationship between student and teacher – sexual intercourse person 10 and under 16 under authority-historical sex offences - s25AA - delay - special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AJB v R (2007) 169 A Crim R 32 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Cahyadi v R [2007] NSWCCA 1; (2007)168 A Crim R 41 Carr v R [2020] NSW 214 Dawkins v R [2018] NSWCCA 278 FB v R; R v FB [2011] NSWCCA 2017 Hornhardt v R [2017] NSWCCA 186 Magnuson v R [2013] NSWCCA 50 Mill v The Queen (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 MPB v R [2013] NSWCCA 123 Muldrock v The Queen 244CLR 120 NLR v R [2011] NSWCCA 246 O’Brien v R [2013] NSWCCA 197 Postiglione v The Queen (1997) 189CLR 295 R v Cattell [2019] NSWCCA 297 R v CMB [2014] NSWCCA 5 R v DP [2019] NSWCCA 55 R v Mak (2006) 167 A Crim R 159 R v Mostyn [2004] NSWCCA 967 R v Pham [2015] HCA39 R v Todd (1982) 2NSWLR 51 R v Way (2004) 60 NSWLR 168 RWB v R (2010) 202 A Crim R 209 Ryan v The Queen (2001) 206 CLR 267 SW v R [2013] NSWCCA 255 Wakling v R [2016] NSWCCA 33 Wright v R [2008] NSWCCA 91 Yeung v R [2018] NSWCCA 52
Category:	Sentence
Parties:	Regina (Crown) Hovell (Offender)
Representation:	Counsel: Mr English (Offender) Solicitors: Ms Hanshaw (DPP)
File Number(s):	2020/00148976
Publication restriction:	Non-publication order in relation to the name of the complainant and the offender and any information that may identify them.