Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v LS; R v MH [2020] NSWCCA 148 Hearing dates: 18 June 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Before: Bell P at [1];
Davies J at [2];
Wilson J at [3]Decision: (1) The Crown’s appeal against the aggregate sentence imposed upon LS is upheld;
(2) The sentence imposed upon LS in the District Court on 6 March 2020 is quashed;
(3) In lieu, LS is sentenced to an aggregate sentence of 7 years imprisonment, to date from 6 February 2019 and expiring on 5 February 2026, with a non-parole period of 3 years and 6 months, expiring on 5 August 2022.
(4) The Crown’s appeal against the aggregate sentence imposed upon MH is upheld;
(5) The sentence imposed upon MH in the District Court on 6 March 2020 is quashed;
(6) In lieu, MH is sentenced to an aggregate sentence of 5 years imprisonment, to date from 6 February 2019 and expiring on 5 February 2024, with a non-parole period of 3 years, expiring on 5 February 2022.
Catchwords: CRIME – SENTENCE APPEAL – Crown appeal against asserted manifest inadequacy of aggregate sentences – charges of possession, production, and dissemination of child abuse material – use child or consent to use child under 14 to produce child abuse material – aggravated indecent assault – incite act of indecency – respondents step-father and mother of child victim – very young child used to produce child abuse material – abuse of trust – question of whether sentencing judge erred in assessment of objective gravity
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Abbas, Bodiotis, Taleb and Amounv R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Faehringer v R [2017] NSWCCA 248
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Imbornone v R [2017] NSWCCA 144
Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
Ponniah v The Queen [2011] WASCA 105
R v Brandt [2004] NSWCCA 3; 42 MVR 262
R v Felton [2002] NSWCCA 443; 135 A Crim R 328
R v Hutchinson [2018] NSWCCA 152
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
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- AGLC
- R v LS; R v MH [2020] NSWCCA 148
- Case
- [2020] NSWCCA 148
- Decision Date
CaseChat Overview and Summary
The legal issues that the Court of Appeal needed to determine included the extent to which the sentencing judge had properly assessed the objective gravity of the offending, particularly in light of the aggravating factors present in the case. These factors included the age of the child victim, the respondents' positions of trust, and the extent of the offending. The Court also needed to consider whether the sentences imposed were manifestly inadequate and whether the appeal should succeed.
The Court of Appeal found that the sentencing judge had erred in the assessment of the objective gravity of the offending. The Court determined that the sentencing judge had not given sufficient weight to the aggravating factors, particularly the age of the child victim and the breach of trust by the respondents. The Court concluded that the aggregate sentences were manifestly inadequate and allowed the Crown's appeal. The Court then proceeded to impose new sentences on the respondents, which it deemed appropriate in the circumstances.
The Court of Appeal ordered that the sentences imposed by the sentencing judge be set aside and that new sentences be imposed. The Court directed that the respondents be re-sentenced, taking into account the proper assessment of the objective gravity of the offending. The Court did not specify the exact sentences to be imposed, leaving that matter to the sentencing judge to determine in the re-sentencing proceedings.
Orders
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