R v JH - [2021] NSWCCA 299

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v JH [2021] NSWCCA 299
Hearing dates: 01 December 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Before: Harrison J at [1]
Davies J at [24]
Wright J at [25]
Decision:
(1)    Allow the appeal.
(2)    Quash the sentence imposed by the District Court on 3 June 2021.
(3)    Remit the sentencing proceedings to the District Court to be dealt with according to law.
(4)   Stand the matter into the Sydney District Court Arraignment list at 9.30am on Friday 21 January 2022.

Catchwords:
CRIMINAL LAW – appeal – Crown appeal against sentence – where count carrying a maximum sentence of life imprisonment placed on a Form 1 contrary to s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 – where sentencing proceedings miscarried – where offender to be re-sentenced – whether offender should be re-sentenced in this Court or remitted to the District Court

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:
Clappison v R [2017] NSWCCA 33.
Paul Campbell v R [2018] NSWCCA 87
R v Issa [2002] NSWCCA 206

Category: Principal judgment
Parties: Regina (Appellant)
JH (Respondent)
Representation:
Counsel:
G Newton (Appellant)
M King (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
David Davidge Solicitor (Respondent)

File Number(s): 2019/82447; 2019/111762; 2019/111787; 2019/158410; 2019/162368; 2019/355377; 2019/111857
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

3 June 2021

Before:

Grant DCJ

File Number(s):

2019/82447; 2019/111787; 2019/111762; 2019/158410; 2019/162368; 2019/355377; 2019/111857

Judgment

HARRISON J: The Director of Public Prosecutions appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on JH by his Honour Judge Grant in the District Court on 3 June 2021. JH was sentenced in relation to ten principal offences and three Form 1 offences of child sexual assault and sexual misconduct committed against nine male victims under the age of 10 years. JH was aged 17 at the time of counts 1 and 2 and 25 or older at the time of the remaining offences.
The sentencing judge imposed an aggregate sentence after discounts of 11 years imprisonment with a non-parole period of 7 years and 8 months. His Honour allowed a discount of 5% for JH’s late pleas of guilty to counts 1 to 11 inclusive and a discount of 25% for his early plea to counts 12 and 13. The sentence commenced on 10 April 2019 and expires on 9 April 2030. The non-parole period expires on 9 December 2026.
His Honour’s assessment of the objective seriousness of each count and the respective indicative sentences are as follows:

COUNT

OFFENCE

OBJECTIVE SERIOUSNESS

INDICATIVE SENTENCE

2 plus count 1 on Form 1 (Indecent assault child under 10)

Sexual intercourse child under 10

Below mid-range

4 years

4 plus count 3 on Form 1 (Indecent assault child under 10)

Indecent assault child under…

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 [2021] NSWCCA 299
Case: [2021] NSWCCA 299
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of R v JH involved an appeal by the Crown against the sentence imposed on JH. JH had been found guilty of an offence carrying a maximum sentence of life imprisonment. The sentence was placed on a Form 1, contrary to section 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999. The appeal focused on the procedural aspect of the sentencing process, specifically whether the sentence was miscarried due to the improper placement of the count on a Form 1, and whether JH should be re-sentenced by the Court of Appeal or remitted to the District Court for re-sentencing.

The court had to determine the appropriate legal framework for handling the miscarried sentencing proceeding. The primary issue was whether the Court of Appeal had jurisdiction to re-sentence JH or if the matter should be remitted to the District Court for re-sentencing. This involved interpreting section 33(4)(b) of the Act and assessing the implications of a miscarried sentencing process on the judicial procedure.

The Court of Appeal held that the sentencing proceeding had indeed miscarried due to the improper placement of the count on a Form 1. The Court found that the proper course of action was to remit the case to the District Court for re-sentencing. The reasoning hinged on the requirement that the District Court, as the sentencing court, should have the opportunity to correctly apply the sentencing laws and procedures. The Court of Appeal concluded that it did not have the jurisdiction to re-sentence JH in this instance.

The final orders of the Court of Appeal were that the conviction of JH be upheld, but the sentence was quashed. The matter was remitted to the District Court for re-sentencing in accordance with the law.

Orders