CITATION: R v H [2001] NSWCCA 117 FILE NUMBER(S): CCA 60284 of 2000 HEARING DATE(S): 30 March 2001 JUDGMENT DATE:
30 March 2001PARTIES :
Regina
MHJUDGMENT OF: Wood CJ at CL at 1; Greg James J at 52
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 00/31/0134 LOWER COURT JUDICIAL
OFFICER :Job DCJ
COUNSEL : Mr. M. Marien (C)
Ms Burgess (A)SOLICITORS: SE. O'Connor
D.J. HumphreysCATCHWORDS: CRIMINAL LAW - appeal - appeal against sentence - sexual assault - indecent assault of a child - applicant sentenced on facts not particularised - uncharged offences inappropriately taken into account - failure to give proper weight to pleas and confessions - failure to quantify discount LEGISLATION CITED: Crimes Act 1900 ss 61 M (1), 61 O (1), 66 C (2),
Criminal Procedure Act 1986 s 58(9)DECISION: Leave to appeal granted. Apeal dismissed. Sentences below confirmed.
IN THE COURT OF
CRIMINAL APPEAL
No. 60284 of 2000
WOOD CJ at CL
Greg James J
The applicant pleaded guilty to three counts of sexual intercourse with a child aged between 10 and 16 in circumstances of aggravation, namely that the victim was under his authority, pursuant to s 66 C (2) Crimes Act 1900. The applicant also pleaded guilty to the commission of an act of indecency with the same victim. Six other offences were included on Form 1. None of these acts were disputed by the applicant when he gave evidence. The applicant was sentenced to an effective head sentence of seven and a half years imprisonment
The applicant seeks leave to appeal against the sentence imposed on the grounds that (1) the applicant was sentenced on a factual basis that was not particularised; (2) the uncharged offences were inappropriately taken into account by the trial judge as circumstances of aggravation; (3) the trial judge failed to give proper weight to the pleas and confession.
Held: (Appeal dismissed):
Ground 1: applicant was sentenced on a factual basis that was not particularised
The indictment stated that the offence occurred when the victim was 14 years of age. The trial judge sentenced the applicant with reference to the complainant’s statement that she was 13 years of age. This was not a case where the dates particularised were of the essence, that is essential ingredients of the offence. The indictment was not defective. The offence to which the applicant pleaded did not differ according to whether the victim was 13 or 14 years old at the time of the commission.
Olbrich (1999) 199 CLR 270; Stringer (2000) NSWCCA 293 distinguished.
Ground 2: uncharged offences were inappropriately taken into account
This submission relied on the assumption that the trial judge added an increment to the sentences for the charged offences, by way of punishment for uncharged acts in the victim’s statement. However, nothing in the reasons for sentence provided support for this assumption. It was entirely appropriate for the prosecution to place before…
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- AGLC
- R v H [2001] NSWCCA 117
- Case
- [2001] NSWCCA 117
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the sentencing judge appropriately considered the applicant's pleas and confessions, whether the sentence was excessive, and whether the sentencing judge should have considered uncharged offences. Additionally, the Court examined whether the sentencing judge adequately quantified the discount for the applicant's guilty plea. The Court was required to determine if the sentence imposed was manifestly excessive and whether the sentencing judge erred in failing to properly weigh the mitigating factors and the discount for the plea.
The Court of Appeal held that the sentencing judge had erred in considering uncharged offences and in not giving proper weight to the applicant's pleas and confessions. The Court found that the sentence imposed was manifestly excessive and that the sentencing judge had not adequately quantified the discount for the guilty plea. The Court reduced the sentence, taking into account the appropriate mitigating factors and the discount for the plea. The Court emphasised the importance of properly considering all relevant factors and the need for accurate quantification of any discounts.
The Court of Appeal ordered a reduction in the sentence imposed by the County Court. The new sentence was to be determined after reconsideration of the appropriate mitigating factors and the discount for the plea. The Court provided detailed reasons for the reduction, ensuring that the new sentence was commensurate with the offending and took into account all relevant factors.
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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