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R v LS; R v MH

R v LS; R v MH

Case [2020] NSWCCA 148 3 July 2020

Criminal Liability

Sentencing

Aggravated Indecent Assault

Criminal Law

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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
Doumit v R [2011] NSWCCA 134
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
LS v R [2020] NSWCCA 27
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 Booth [2009] NSWCCA 89
R v Cramp [2004] NSWCCA 264
R v CTG [2017] NSWCCA 163
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
R v Quatami [2001] NSWCCA 353
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
WM v R [2020] NSWCCA 96
Woodward v R [2017] NSWCCA 44
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

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 LS; R v MH

Details

AGLC: R v LS; R v MH [2020] NSWCCA 148
Case: [2020] NSWCCA 148
Decision Date: 03 July 2020

CaseChat Overview and Summary

The respondents, LS and MH, were charged with various offences involving the possession, production, and dissemination of child abuse material, as well as aggravated indecent assault and incitement of an act of indecency involving a child. The material involved the use of a very young child, who was under the age of 14, in the production of the child abuse material. Both respondents were the step-father and mother of the child victim, respectively. The Court of Appeal heard an appeal by the Crown against the sentences imposed on the respondents, asserting that the aggregate sentences were manifestly inadequate. The appeal focused on the assessment of the objective gravity of the offending and whether the sentencing judge had erred in this regard.

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