R v HQ - [2003] NSWCCA 336

CITATION: REGINA v HQ [2003] NSWCCA 336

HEARING DATE(S): 31 October 2003

JUDGMENT DATE:
31 October 2003

JUDGMENT OF: Spigelman CJ at 1, 57; O'Keefe J at 51; Greg James J at 52

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - attempt to strangle victim with intent to commit aggravated indecent assault - aggravated sexual intercourse without consent - weight to be given to circumstances of custody - relevance of psychiatric condition - existence of special circumstances - where non-parole period slightly higher than statutory proportion - whether error in partial accumulation of sentences - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 ss 37, 61J
Crimes (Sentencing Procedure) Act 1999 ss 21A, 44
Criminal Appeal Act 1912 s 6

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Bo Too (unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Handley JA and Badgery-Parker J, 16 July 1992)
R v Brindley (1993) 66 A Crim R 204
R v Fisher (1989) 40 A Crim R 443
R v GDR (1994) 35 NSWLR 376
R v Simpson (2001) 53 NSWLR 704
R v Totten [2003] NSWCCA 207

PARTIES :
Regina (Respondent)
HQ (Applicant)

FILE NUMBER(S): CCA 60233/03

COUNSEL: P Boulten SC (Applicant)
D Howard (Respondent)

SOLICITORS: S O'Connor (Applicant)
C K Smith (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0075

LOWER COURT
JUDICIAL OFFICER : English DCJ

60233/03

SPIGELMAN CJ
O’KEEFE J
GREG JAMES
Friday 31 October 2003

REGINA v HQ

Judgment

1 SPIGELMAN CJ: The Applicant pleaded guilty on arraignment in the Gosford District Court to three counts arising from an attack and sexual assault he committed on 19 January 2002. The victim (RJL) was the Applicant’s stepdaughter. He was the only father figure that she had ever known. She was 15 at the time of the attacks.

2 The three counts were:

(i) attempt to strangle the victim with intent to commit an aggravated indecent assault, contrary to s37 of the Crimes Act 1900 for which the maximum penalty is 25 years’ imprisonment.

(ii) attempt to strangle the victim with intent to commit aggravated indecent assault, contrary to s37 of the Crimes Act for which the maximum penalty is 25 years’ imprisonment.

Crimes Act

3 As will presently appear the counts related to a single course of events on the night of 19 January 2002. Nevertheless her Honour was obliged to impose separate sentences for each offence. The fact that there was a single course of events is reflected in the overlapping nature of the sentences imposed.

4 Her Honour imposed the following sentences:

Count 1 - a fixed term of imprisonment for seven years commencing on 22 January 2002 and expiring on 21 January 2009.

Count 2 - imprisonment for 11 years commencing on 22 January 2004 and expiring on 21 January 2015 with a…

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 HQ

Details

AGLC: R v HQ [2003] NSWCCA 336
Case: [2003] NSWCCA 336
Decision Date: 31 October 2003

CaseChat Overview and Summary

The accused, the appellant, faced the Crown in a case involving a number of serious criminal charges. The appellant was charged with attempting to strangle a victim with the intent to commit an aggravated indecent assault, as well as engaging in aggravated sexual intercourse without the victim's consent. The case was heard in the appellate court, where the appellant sought to challenge the sentence imposed by the lower court.

The central legal issues before the court were the appropriate weight to be given to the circumstances of the appellant's custody, the relevance of his psychiatric condition, and whether there were special circumstances present that warranted a departure from the statutory proportion for the sentences. The court was also required to determine whether there was an error in the partial accumulation of the sentences and whether the sentence imposed was manifestly excessive.

In delivering the judgment, the court considered the circumstances of the appellant's custody and his psychiatric condition, which were factors that could potentially mitigate the severity of the sentence. The court found that the lower court had appropriately taken these circumstances into account. Regarding the special circumstances, the court held that while there were some factors that could be considered as special circumstances, they did not warrant a significant departure from the statutory proportion. The court also examined the partial accumulation of the sentences and concluded that there was no error in this regard. Finally, the court assessed whether the sentence was manifestly excessive and determined that it was not, as the non-parole period was slightly higher than the statutory proportion but not to an extent that would render the sentence manifestly excessive.

The court upheld the sentence imposed by the lower court, with no alterations made to the non-parole period or the overall sentence. The appellant's appeal was dismissed, and the original sentence stood as affirmed.

Orders