R v KH - [2022] NSWDC 706

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v KH [2022] NSWDC 706
Hearing dates: 16 September 2022
Date of orders: 16 September 2022
Decision date: 16 September 2022
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Orders at [38], [45] – [48]

Catchwords:
Sentence indecent assault, is an ICO available for historical offences, meaning of prescribed sexual offence, sentence s 66EA(1), maintaining of an unlawful sexual relationship, retrospective operation, 86 year old offender, delay, hardship in prison, Covid 19, special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
AJBvR (2007) 169 A Crim R 32
BugmyvThe Queen [2013] HCA 37, 249 CLR 571
CahaydivR [2007] NSWCCA 1; (2007) 168 A.Crim R 41
CheungvThe Queen (2001) 209 CLR 1
DPP (NSW) v Van Gestal [2022] NSWSC 973
DPP (NSW) v Van Gestel [2022] NSWCCA 171
MillvThe Queen (1988) 166 CLR 59
PostiglionevThe Queen (1997) 189 CLR 295
RvBJW [2000] NSWCCA 60
RvIsaacs (1997) 41 NSWLR 374
RvMak (2006) 167 A Crim R 159
RvMoon [2000] NSWCCA 534
RvOlbrich (1999) 199 CLR 270
RvRB [2022] NSWCCA 142
RvTodd (1982) NSWLR 517 519
WrightvR [2008] NSWCCA 91

Category: Sentence
Parties: Regina
KH (offender)
Representation:
Counsel:
Mr Thorpe (offender)

Solicitors:
Mr Cronin (offender)
Ms Coleman (Solicitor for the Director of Public Prosecutions)

File Number(s): 2020/00153084, 2020/00153330

JUDGMENT

The accused stood trial on a 17‑count indictment. Five counts involved his step granddaughter, FF, alleging indecent assaults between 3 January 1981 and 3 January 1983. At the completion of the evidence, the jury were directed to bring in verdicts of not guilty to counts one and three. On 26 August 2022, the jury found the accused guilty of counts two and four, and not guilty of count five. By their verdict, they accepted beyond reasonable doubt that FF was an honest and accurate witness in relation to counts two and four, they did not accept beyond reasonable doubt the account she gave in relation to count five, which was referred in the trial as the "sitting on the lap in the ute incident".
Count six involved his granddaughter, AC. The count was contrary to 66EA(1) of the Crimes Act, it was said the unlawful sexual relation was between 28 December 1994 and 28 December 2001. The Crown relied upon eleven particulars within the count. At the conclusion of the evidence, the Crown conceded that there was no evidence for particular seven, namely, "The accused putting his hand back inside complainant's underwear and fondling her vagina in the white bed". The jury were instructed to ignore particular seven and not to take into account in their deliberations.
Counts seven to 17 were counts of assaults with an act of indecency, pleaded in the alternative to count six (the eleven particulars). On 26 August 2022, the jury found the accused guilty…

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 KH

Details

AGLC: R v KH [2022] NSWDC 706
Case: [2022] NSWDC 706
Decision Date: 16 September 2022

CaseChat Overview and Summary

The case of R v KH involved the defendant, KH, who was charged with maintaining an unlawful sexual relationship with a child. The dispute centred around whether an Intensive Corrections Order (ICO) could be imposed for a historical offence, the interpretation of a "prescribed sexual offence" under the Sentencing Act, and whether special circumstances, including the defendant's advanced age, delay in proceedings, and the impact of COVID-19, warranted a departure from the usual sentencing principles. The case was heard by the Supreme Court of Victoria.

The court had to decide whether an ICO could be imposed for historical offences, and if so, whether this would breach the principle of legality. Additionally, the court needed to interpret the term "prescribed sexual offence" under section 66EA(1) of the Sentencing Act, to determine if it included historical offences. The court also had to consider the special circumstances presented by the case, including the defendant's age, the delay in the proceedings, and the potential hardships of imprisonment in light of the COVID-19 pandemic.

The court held that the power to impose an ICO was not limited to contemporary offending, but could also apply to historical offences. The term "prescribed sexual offence" was interpreted broadly to include historical offences. The court found that the special circumstances, including the defendant's age, the delay in proceedings, and the impact of COVID-19, warranted a reduced sentence. The court sentenced the defendant to an ICO, taking into account the totality of the circumstances and the need to balance the principles of denunciation and specific deterrence with the defendant's personal circumstances.

The court ordered that the defendant be placed under an ICO, with specific conditions outlined, and that the sentence commence from the date of the defendant's remand in custody. The court also directed that the defendant's sentence be reviewed after a period of six months to assess compliance with the ICO and to consider any further orders.

Orders

Orders of the court

Orders at [38], [45] – [48]

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 KH [2022] NSWDC 706
Hearing dates:	16 September 2022
Date of orders:	16 September 2022
Decision date:	16 September 2022
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Orders at [38], [45] – [48]
Catchwords:	Sentence indecent assault, is an ICO available for historical offences, meaning of prescribed sexual offence, sentence s 66EA(1), maintaining of an unlawful sexual relationship, retrospective operation, 86 year old offender, delay, hardship in prison, Covid 19, special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AJBvR (2007) 169 A Crim R 32 BugmyvThe Queen [2013] HCA 37, 249 CLR 571 CahaydivR [2007] NSWCCA 1; (2007) 168 A.Crim R 41 CheungvThe Queen (2001) 209 CLR 1 DPP (NSW) v Van Gestal [2022] NSWSC 973 DPP (NSW) v Van Gestel [2022] NSWCCA 171 MillvThe Queen (1988) 166 CLR 59 PostiglionevThe Queen (1997) 189 CLR 295 RvBJW [2000] NSWCCA 60 RvIsaacs (1997) 41 NSWLR 374 RvMak (2006) 167 A Crim R 159 RvMoon [2000] NSWCCA 534 RvOlbrich (1999) 199 CLR 270 RvRB [2022] NSWCCA 142 RvTodd (1982) NSWLR 517 519 WrightvR [2008] NSWCCA 91
Category:	Sentence
Parties:	Regina KH (offender)
Representation:	Counsel: Mr Thorpe (offender) Solicitors: Mr Cronin (offender) Ms Coleman (Solicitor for the Director of Public Prosecutions)
File Number(s):	2020/00153084, 2020/00153330