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:
Solicitors:
G Newton (Appellant)
M King (Respondent)
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
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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.
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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.
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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…
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- AGLC
- R v JH [2021] NSWCCA 299
- Case
- [2021] NSWCCA 299
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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