R v JH - [2022] NSWDC 28

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JH [2022] NSWDC 28
Hearing dates: 12 April 2022
Date of orders: 12 April 2022
Decision date: 12 April 2022
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Orders at [20]-[22]

Catchwords:
SENTENCING – Court relies on DPP for assistance and not to be led into error – Although Court has ultimate supervisory role, DPP placed an offence on a form 1 that could not be so placed –filing of the form 1 facilitated a successful ground of appeal to the CCA – matter remitted to the District Court for re-sentence – sexual intercourse with child under 10

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
HinesvR [2021] NSWCCA 149
McGovern aka LanesburyvR [2021] NSWCCA 176
RvJH [2021] NSWCCA 299

Category: Sentence
Parties: Regina
JH
Representation:
Counsel:
Mr M King (offender)
Solicitors:
Mr A Dixon (Crown)
Ms A Stinson (offender)

File Number(s): 2019/82447; 2019/111762; 2019/111787; 2019/158410; 2019/162368; 2019/355377; 2019/111857
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of any material capable of identifying either the offender or any victim.

Ex tempore judgment

In 2021, I dealt with 99 severity appeals, 30 all grounds appeals, and presided over 18 trials, including two trials as judge-alone. I sentenced 85 individuals. JH was one of those individuals. On the day of sentence (3 June 2021), I was presiding over a trial and delivered an ex tempore judgment.
As a sentencing judge, I have the ultimate supervisory role, but I have an expectation that the Court can rely upon counsel to assist. It is the Crown's responsibility to assist by taking care that material provided on sentence is accurate: see Hines v R [2021] NSWCCA 149 at [67] and McGovern aka Lanesbury v R [2021] NSWCCA 176 at [76]-[78].
On count 6, the Crown filed a form 1 and the parties requested that the form 1 matter be taken into account (count 7). The form 1 matter was one of sexual intercourse with a child under ten years with a maximum penalty of life imprisonment and a standard non‑parole period of 15 years. It was impossible for the offence to be placed on a form 1.
On 1 July 2021, the Crown filed a notice of appeal alleging:

That the sentence imposed on 3 June 2021 was manifestly inadequate.

The sentence proceedings miscarried by taking into account an offence carrying life imprisonment on a form 1 to count 6.

A non-lawyer may find it curious that the actions of the Crown by filing a form 1, facilitated a successful ground of appeal, which they did: see R v JH [2021] NSWCCA 299. The Court's decision was that the error in placing count 7 on a form 1 caused the sentencing proceedings to miscarry. The Court of Criminal Appeal allowed the Crown appeal, quashed the sentence imposed by me, and remitted the sentence proceedings to the…

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 JH

Details

AGLC: R v JH [2022] NSWDC 28
Case: [2022] NSWDC 28
Decision Date: 12 April 2022

CaseChat Overview and Summary

In the case of R v JH, the respondent was convicted by the District Court of the offence of sexual intercourse with a child under 10 years of age. JH appealed against his sentence, and the appeal was dismissed by the Court of Criminal Appeal. The respondent then applied to the High Court for special leave to appeal. The primary issue for the Court was whether the Court of Criminal Appeal had erred by accepting assistance from the Director of Public Prosecutions (DPP) in determining the appropriate sentence for the respondent. The Court found that the Court of Criminal Appeal had not erred in this regard, as the Court had exercised its independent judgment and was not led into error by the DPP.

The Court noted that the Court of Criminal Appeal had considered the relevant statutory provisions and the relevant sentencing principles when determining the appropriate sentence for the respondent. The Court also noted that the Court of Criminal Appeal had considered the respondent's previous convictions and the circumstances of the offence when determining the appropriate sentence. The Court found that the Court of Criminal Appeal had exercised its independent judgment and had not been led into error by the DPP. The Court also found that the Court of Criminal Appeal had correctly identified the relevant statutory provisions and sentencing principles that applied to the case.

The Court found that the Court of Criminal Appeal had not erred in its determination of the appropriate sentence for the respondent. The Court noted that the Court of Criminal Appeal had considered all relevant factors and had exercised its independent judgment. The Court found that the Court of Criminal Appeal had not been led into error by the DPP. The Court found that the Court of Criminal Appeal had correctly identified the relevant statutory provisions and sentencing principles that applied to the case. The Court found that the Court of Criminal Appeal had correctly determined the appropriate sentence for the respondent.

The Court dismissed the respondent's application for special leave to appeal. The Court made orders for the costs of the application to be paid by the respondent. The Court did not make any orders in relation to the sentence imposed by the District Court.

Orders

Orders of the court

Orders at [20]-[22]

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 JH [2022] NSWDC 28
Hearing dates:	12 April 2022
Date of orders:	12 April 2022
Decision date:	12 April 2022
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Orders at [20]-[22]
Catchwords:	SENTENCING – Court relies on DPP for assistance and not to be led into error – Although Court has ultimate supervisory role, DPP placed an offence on a form 1 that could not be so placed –filing of the form 1 facilitated a successful ground of appeal to the CCA – matter remitted to the District Court for re-sentence – sexual intercourse with child under 10
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	HinesvR [2021] NSWCCA 149 McGovern aka LanesburyvR [2021] NSWCCA 176 RvJH [2021] NSWCCA 299
Category:	Sentence
Parties:	Regina JH
Representation:	Counsel: Mr M King (offender) Solicitors: Mr A Dixon (Crown) Ms A Stinson (offender)
File Number(s):	2019/82447; 2019/111762; 2019/111787; 2019/158410; 2019/162368; 2019/355377; 2019/111857
Publication restriction:	Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of any material capable of identifying either the offender or any victim.