R v Hovell (a pseudonym)

Case [2021] NSWDC 326


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

  1. 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.

  2. The relationship ceased with the offender taking up a teaching position in another town and the victim attending boarding school.

  3. 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.

  4. 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.…

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

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

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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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