R v NH

Case [2006] QCA 476 17 November 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v NH [2006] QCA 476

PARTIES:

R
v
NH
(applicant/appellant)

FILE NO/S:

CA No 105 of 2006
DC No 347 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

17 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2006

JUDGES:

Jerrard JA, Holmes JA and Mullins J
Judgment of the Court

ORDER:

1. Application for leave to appeal against sentence allowed
2. Appeal against sentence allowed
3. Sentences on counts 1, 2 and 4 varied by reducing the term of imprisonment imposed to two and a half years. Declaration that the period of 12 days in custody between 24 March and 4 April 2006 is imprisonment already served under the sentence
4. Sentence of two and a half years imprisonment imposed on count 3. Declaration that the period of 238 days in custody between 24 March and 17 November 2006 is imprisonment already served under the sentence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant convicted of two counts of indecent treatment of a child under 16 and two counts of rape – on appeal, conviction and sentence on one count of rape set aside and conviction of indecent dealing with a child under 16 substituted – whether sentence should be reduced

R v B [2003] QCA 105; CA No 336 of 2002, 14 March 2003, considered
R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, considered
R v NH [2006] QCA 310; CA No 105 of 2006, 25 August 2006, cited
R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered
R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, considered

COUNSEL:

R A East for the applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant faced trial on four counts of rape, each involving allegations of digital penetration. He was found guilty on two of those counts, but on the remaining counts the jury returned verdicts of the less serious charge of indecent treatment of a child under the age of 16. The applicant was sentenced to imprisonment for three years on all counts. In August 2006, this Court set aside the conviction and sentence on one of the rape charges and substituted a verdict of indecent dealing with a child under 16.[1] In light of that result, the applicant and respondent were invited to, and did, make further submissions on sentence on all four counts.
[1]R v NH [2006] QCA 310.

The applicant’s counsel submitted that he now should be sentenced on…

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 NH

Details

AGLC: R v NH [2006] QCA 476
Case: [2006] QCA 476
Decision Date: 17 November 2006

CaseChat Overview and Summary

The case of R v NH involves an appeal against sentence by the convicted person, who was found guilty of two counts of indecent treatment of a child under 16 and two counts of rape. The applicant's appeal to the court focused on the sentence imposed by the lower court. The primary issue was whether the sentence should be reduced, given the specific nature of the offences and the circumstances of the case.

The court considered the arguments presented by the applicant, which included the need to take into account the severity of the crimes, the impact on the victim, and the appropriate deterrence and rehabilitation for the applicant. The court also reviewed the sentencing principles and guidelines applicable to sexual offences involving children. It was noted that the applicant's conduct warranted a severe sentence, but the court had to balance this with the need for proportionality and fairness in sentencing.

After careful consideration, the court allowed the appeal against the sentence. The conviction and sentence on one count of rape were set aside, and the conviction of indecent dealing with a child under 16 was substituted. The sentences on counts 1, 2 and 4 were varied to a term of two and a half years imprisonment, and a sentence of two and a half years imprisonment was imposed on count 3. The court declared that the periods of 12 days and 238 days spent in custody were considered as time already served under the sentence.

The court's final orders were that the application for leave to appeal against the sentence was allowed, the appeal against the sentence was allowed, and the sentences were varied as described above. This decision reflects the court's consideration of the seriousness of the offences, the impact on the victim, and the need for a fair and proportionate sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Appeal against sentence allowed

3. Sentences on counts 1, 2 and 4 varied by reducing the term of imprisonment imposed to two and a half years. Declaration that the period of 12 days in custody between 24 March and 4 April 2006 is imprisonment already served under the sentence

4. Sentence of two and a half years imprisonment imposed on count 3. Declaration that the period of 238 days in custody between 24 March and 17 November 2006 is imprisonment already served under the sentence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v NH [2006] QCA 476

Most Recent Citation

R v AAD [2008] QCA 4

Cases citing this decision · 11 of 11 shown

R v PBR
[2025] QCA 120 Para 11

…festly excessive or, on the other hand, within a sound discretionary range. For example Mrs Grant, counsel for the applicant, provided us with R v NH [2006] QCA 476 and R v Watson [2017] QCA 82 whilst Ms Sheppard (for the respondent) placed R v AAR [2014] QCA 20 and R v SBM [2009] QCA 115 before us. None of these…
R v Misi; Ex parte
[2023] QCA 34 Para 5

…ecent assault and rape. He was sentenced on the appeal to four years’ imprisonment. One of the comparable authorities referred to in AAD was R v NH [2006] QCA 476 where on appeal a 51 year old offender with no prior convictions was sentenced to imprisonment for two and one-half years’ imprisonment after trial for…
R v Kelly
[2021] QCA 134 Para 9

…as correctly submitted by the respondent, demonstrate that the sentence imposed is not manifestly excessive.[38] [37] R v SAH [2004] QCA 329; R v NH [2006] QCA 476; R v AAD [2008] QCA 4; R v Lee [2012] QCA 313. [38]Outline of Submissions on Behalf of the Respondent, paragraph 8.4. Disposition 1.Appeal dismissed.…
R v Choomwantha
[2014] QCA 115

…88, distinguished R v Lee [2012] QCA 313, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied R v NH [2006] QCA 476, considered R v PAA [2006] QCA 56, considered R v RAH [2011] QCA 35, considered R v Stoian [2012] QCA 41, distinguished COUNSEL: C Reid for the applicant D C Boyle for the…
R v Bradfield
[2012] QCA 337 Para 1

…tal penetration charged both as indecent dealing and as rape, this court imposed sentences of two and a half years imprisonment on each count. [8][2006] QCA 476.…
R v Lee
[2012] QCA 313 Para 1

…on the hymen and the posterior fourchette consistent with trauma associated with digital penetration which was likely to have caused pain. [18][2006] QCA 476. [19]At [4].…
R v GAP
[2012] QCA 193 Para 1

…e of the applicant and that was the basis on which the applicant was sentenced. A global penalty of imprisonment for 2½ years was imposed. [55][2006] QCA 476.…
R v Porter; Ex parte Attorney-General (Qld)
[2009] QCA 353 Para 1

…rt imposed a sentence of two and a half years imprisonment. The conduct in question there was plainly more serious than here and significantly so. [6][2006] QCA 476.…
R v IB
[2008] QCA 356 Para 1

…made the incontrovertible point that the offences involved a serious violation of trust. He had regard to three sentences in comparable cases: R v NH [2006] QCA 476; R v MAI [2005] QCA 36; and R v LQ [2005] QCA 356.…
R v MBF
[2008] QCA 61

…ed after 12 months – whether in the circumstances the sentence was manifestly excessive R v M [2003] QCA 443, considered R v NH [2006] QCA 476, considered R v SAH [2004] QCA 329, considered COUNSEL: The applicant appeared on his own behalf D A Holiday for the respondent SOLICITORS: The applicant appeared on his o…
R v AAD
[2008] QCA 4

…lved in the offence Penalties and Sentences Act 1992 (Qld) s159A R v BBE [2006] QCA 532 , considered R v Cooksley [1982] Qd R 405, cited R v NH [2006] QCA 476 , considered R v PAA [2006] QCA 56 , considered R v SAH [2004] QCA 329 , considered COUNSEL: S Ryan for the appellant G P Cash for the respondent SOLICITOR…

View all 11 citing cases →

Cases cited in this decision · 5 of 5 shown

R v NH
[2006] QCA 310 Para 1

…] In light of that result, the applicant and respondent were invited to, and did, make further submissions on sentence on all four counts. [1] R v NH [2006] QCA 310.…
R v MAI
[2005] QCA 36 Para 1

…efused. He had no prior criminal history. The special relationship of trust between father and daughter was, of course, a very significant factor. [2][2005] QCA 36. [3][2004] QCA 329. [4][2003] QCA 105. [5][2000] QCA 321.…
R v SAH
[2004] QCA 329 Para 1

…prior criminal history. The special relationship of trust between father and daughter was, of course, a very significant factor. [2][2005] QCA 36. [3][2004] QCA 329. [4][2003] QCA 105. [5][2000] QCA 321.…
R v B
[2003] QCA 105 Para 1

…ory. The special relationship of trust between father and daughter was, of course, a very significant factor. [2][2005] QCA 36. [3][2004] QCA 329. [4][2003] QCA 105. [5][2000] QCA 321.…
R v W
[2000] QCA 321 Para 1

…lationship of trust between father and daughter was, of course, a very significant factor. [2][2005] QCA 36. [3][2004] QCA 329. [4][2003] QCA 105. [5][2000] QCA 321.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v NH [2006] QCA 476
PARTIES:	R v NH (applicant/appellant)
FILE NO/S:	CA No 105 of 2006 DC No 347 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	17 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2006
JUDGES:	Jerrard JA, Holmes JA and Mullins J Judgment of the Court
ORDER:	1. Application for leave to appeal against sentence allowed 2. Appeal against sentence allowed 3. Sentences on counts 1, 2 and 4 varied by reducing the term of imprisonment imposed to two and a half years. Declaration that the period of 12 days in custody between 24 March and 4 April 2006 is imprisonment already served under the sentence 4. Sentence of two and a half years imprisonment imposed on count 3. Declaration that the period of 238 days in custody between 24 March and 17 November 2006 is imprisonment already served under the sentence
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant convicted of two counts of indecent treatment of a child under 16 and two counts of rape – on appeal, conviction and sentence on one count of rape set aside and conviction of indecent dealing with a child under 16 substituted – whether sentence should be reduced R v B [2003] QCA 105; CA No 336 of 2002, 14 March 2003, considered R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, considered R v NH [2006] QCA 310; CA No 105 of 2006, 25 August 2006, cited R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, considered
COUNSEL:	R A East for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent