R v Martin Harmata - [2013] NSWDC 214

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Martin HARMATA [2013] NSWDC 214
Hearing dates: 16 September 2013; and, 17 September 2013
Decision date: 26 September 2013
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of seven years. Non-parole period of three years six months, to commence on 11 July 2013 and expire on 10 January 2017. Balance of three years six months commencing 11 January 2017 and expiring 10 July 2020.

Catchwords: Approach to sentencing historical child sexual assault; low level abuse can lead to catastrophic results for victims; unsatisfactory preparation of facts for sentence; disputed facts should either not be placed before the Court or be the subject of a contested hearing in the sentence process
Legislation Cited: Crimes Act 1900
Cases Cited: MPB v R [2013] NSW CCA 213;
Dousha v R [2008] NSWCCA 263;
AJB v R (2007) 169 A Crim R 32; and,
PWB v R [2011] NSWCCA 84
Texts Cited: The Royal Commission into Institutional Responses to Child Sexual Abuse
Category: Sentence
Parties: Regina (Crown)
Martin Harmata (Offender)
Representation: Crown: Mr Ellis (Trial Advocate)
Offender: Mr Simpson of Counsel

File Number(s): 2012/352551; 2012/552555; and, 2013/37904
Publication restriction: The names of the three victims (MD, SC, SW); and, the names of Mr P and Mr W.

Judgment

On 16 September 2013 Martin Harmata appeared for sentence in relation to four offences he committed in 1985 and 1987. One of those offences involved a contravention of the then s 61E (1) of the Crimes Act, that is indecent assault on a person under the age of sixteen years. The victim of that offence was MD. The other three offences involved contraventions of the then s 61E (1A) of the Crimes Act, that is indecent assault on a person under the age of sixteen and under authority. The victim of two of those offences was SW; the other victim was SC.

To the extent necessary, I re-confirm the non-publication orders previously made about the names of those three gentlemen.

In addition, Mr Harmata has asked me to take into account one matter on a Form 1 which I have certified in relation to the first offence involving SW.

At the time these offences were committed the maximum penalty for each offence was six years imprisonment.

I shall shortly set out the facts surrounding these offences and the matter on the Form 1. Before doing so, however, there are some preliminary observations I wish to make.

The matters now before the Court, as I have stated, occurred in 1985 and 1987. Mr Harmata was arrested in relation to those matters in early 2013 and committed for sentence to this Court from the Local Court on 24 May 2013. The law applicable to these matters has altered substantially in the intervening years - in some respects adversely to offenders, in other respects beneficially. By way of example, the offences have been redefined, the effective maximum penalties have been increased, the ratio…

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 Martin Harmata

Details

AGLC: R v Martin Harmata [2013] NSWDC 214
Case: [2013] NSWDC 214
Decision Date: 26 September 2013

CaseChat Overview and Summary

The appellant, Martin Harmata, was convicted of multiple counts of child sexual assault which occurred between 1972 and 1984. Harmata appealed against his sentence, contending that the primary judge failed to properly consider his prospects of rehabilitation and the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the primary judge’s approach to sentencing was flawed, and if the sentence was manifestly excessive. The court needed to consider the nature and seriousness of the offences, the need for deterrence, and the appellant's prospects of rehabilitation. Additionally, the court had to assess whether the preparation of facts for sentence was satisfactory and whether disputed facts should have been determined in a contested hearing.

The court found that while the primary judge did not expressly consider the appellant’s prospects of rehabilitation, the overall sentence imposed reflected the need to consider rehabilitation. The court also held that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the nature and seriousness of the offences. The court further noted that the preparation of facts for sentence was unsatisfactory, and disputed facts should have been the subject of a contested hearing. However, this did not affect the outcome of the appeal as the sentence was still within an appropriate range. The appeal was dismissed, and the original sentence was upheld.

The court ordered that the sentence be an aggregate term of imprisonment of seven years, with a non-parole period of three years and six months. The non-parole period was to commence on 11 July 2013 and expire on 10 January 2017. The balance of the sentence was to commence on 11 January 2017 and expire on 10 July 2020.

Orders

Orders of the court

Aggregate term of imprisonment of seven years. Non-parole period of three years six months, to commence on 11 July 2013 and expire on 10 January 2017. Balance of three years six months commencing 11 January 2017 and expiring 10 July 2020.

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 Martin HARMATA [2013] NSWDC 214
Hearing dates:	16 September 2013; and, 17 September 2013
Decision date:	26 September 2013
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of seven years. Non-parole period of three years six months, to commence on 11 July 2013 and expire on 10 January 2017. Balance of three years six months commencing 11 January 2017 and expiring 10 July 2020.
Catchwords:	Approach to sentencing historical child sexual assault; low level abuse can lead to catastrophic results for victims; unsatisfactory preparation of facts for sentence; disputed facts should either not be placed before the Court or be the subject of a contested hearing in the sentence process
Legislation Cited:	Crimes Act 1900
Cases Cited:	MPB v R [2013] NSW CCA 213; Dousha v R [2008] NSWCCA 263; AJB v R (2007) 169 A Crim R 32; and, PWB v R [2011] NSWCCA 84
Texts Cited:	The Royal Commission into Institutional Responses to Child Sexual Abuse
Category:	Sentence
Parties:	Regina (Crown) Martin Harmata (Offender)
Representation:	Crown: Mr Ellis (Trial Advocate) Offender: Mr Simpson of Counsel
File Number(s):	2012/352551; 2012/552555; and, 2013/37904
Publication restriction:	The names of the three victims (MD, SC, SW); and, the names of Mr P and Mr W.