R v PH - [2023] NSWDC 462

District Court

New South Wales

Medium Neutral Citation: R v PH [2023] NSWDC 462
Hearing dates: 13 October 2023
Date of orders: 23 October 2023
Decision date: 23 October 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 PH is convicted.
2 I impose an aggregate sentence of 2 years and 9 months.
3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (23 October 2023) and expire on 22 July 2026.
4 The offender must report to Community Corrections on or before 4pm on 30 October 2023.
5 The standard conditions of the order apply:
(a) the offender must not commit any offence; and
(b) the offender must submit to supervision by a Community Corrections Officer.
6 The following additional conditions apply:
(a) the offender must receive treatment for his mental health as reasonably directed by Community Corrections.

Catchwords:
CRIME — Sexual offences — Act of indecency

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2022
Criminal Procedure (Sexual and Other Offences) Act 2006

Cases Cited:
Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147
Bektasovski v R [2022] NSWCCA 246
R v Bowie [2023] NSWSC 207
R v Catell [2019] NSWCCA 297
R v MJR (2002) 54 NSWLR 368
R v Olbrich (1999) 199 CLR 270
R v Watson (No 3) [2022] NSWSC 1693
R v Youkhana [2004] NSWCCA 412
TJ v R (2009) 76 NSWLR 167

Category: Sentence
Parties: Rex (Crown)
PH (Offender)
Representation:
Counsel:
C Parkin (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Miers Legal (Offender)

File Number(s): 2021/358521
Publication restriction: None

JUDGMENT

Introduction

PH (the offender) appears for sentence after pleading guilty in the Local Court to two counts of assault female and commit act of indecency to female under 16 years of age, contrary to s 76 Crimes Act 1900. The maximum penalty for the offence is six years imprisonment.
The offender also asks the Court to take into account, five counts of assault female and commit act of indecency to female under 16 years of age, contrary to s 76 Crimes Act 1900 on a Form 1 schedule.
The offender’s name has been anonymised because some of the offences were committed when he was a young person.

Approach to Sentencing

To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.
The offender entered a plea of guilty in the…

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 PH

Details

AGLC: R v PH [2023] NSWDC 462
Case: [2023] NSWDC 462
Decision Date: 23 October 2023

CaseChat Overview and Summary

In the case of R v PH, the defendant, PH, was convicted of an act of indecency by the District Court. The conviction followed a series of events where PH engaged in inappropriate conduct with a child. The matter was brought before the court for sentencing after PH pleaded guilty to the charge.

The primary legal issue before the court was the appropriate sentence to impose on PH, considering the nature and circumstances of the offence. The court had to weigh various factors, including the gravity of the offence, PH's culpability, and the need for deterrence and rehabilitation. The court also considered the impact of the offence on the victim and the community, as well as any mitigating factors that might be relevant.

The court determined that an aggregate sentence of 2 years and 9 months was appropriate, taking into account the seriousness of the offence and the need to protect the community. The sentence was to be served by way of an Intensive Corrections Order (ICO), as provided under section 7(1) of the Crimes (Sentencing Procedure) Act 1999. This decision was based on the court's assessment that an ICO would provide the necessary supervision and treatment to address PH's offending behaviour and reduce the risk of reoffending. The sentence was to commence on 23 October 2023 and expire on 22 July 2026. The court also imposed standard conditions of the ICO, along with additional conditions requiring PH to receive treatment for his mental health as reasonably directed by Community Corrections.

The final orders of the court included the conviction of PH, the imposition of the sentence, the requirement for PH to report to Community Corrections by 4pm on 30 October 2023, and the application of both standard and additional conditions of the ICO. The court's decision aimed to balance the need for punishment with the potential for rehabilitation and reintegration of PH into the community.

Orders

Orders of the court

1 PH is convicted.

2 I impose an aggregate sentence of 2 years and 9 months.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (23 October 2023) and expire on 22 July 2026.

4 The offender must report to Community Corrections on or before 4pm on 30 October 2023.

5 The standard conditions of the order apply:

(a) the offender must not commit any offence; and

(b) the offender must submit to supervision by a Community Corrections Officer.

6 The following additional conditions apply:

(a) the offender must receive treatment for his mental health as reasonably directed by Community Corrections.

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.

Medium Neutral Citation:	R v PH [2023] NSWDC 462
Hearing dates:	13 October 2023
Date of orders:	23 October 2023
Decision date:	23 October 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 PH is convicted. 2 I impose an aggregate sentence of 2 years and 9 months. 3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (23 October 2023) and expire on 22 July 2026. 4 The offender must report to Community Corrections on or before 4pm on 30 October 2023. 5 The standard conditions of the order apply: (a) the offender must not commit any offence; and (b) the offender must submit to supervision by a Community Corrections Officer. 6 The following additional conditions apply: (a) the offender must receive treatment for his mental health as reasonably directed by Community Corrections.
Catchwords:	CRIME — Sexual offences — Act of indecency
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2022 Criminal Procedure (Sexual and Other Offences) Act 2006
Cases Cited:	Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147 Bektasovski v R [2022] NSWCCA 246 R v Bowie [2023] NSWSC 207 R v Catell [2019] NSWCCA 297 R v MJR (2002) 54 NSWLR 368 R v Olbrich (1999) 199 CLR 270 R v Watson (No 3) [2022] NSWSC 1693 R v Youkhana [2004] NSWCCA 412 TJ v R (2009) 76 NSWLR 167
Category:	Sentence
Parties:	Rex (Crown) PH (Offender)
Representation:	Counsel: C Parkin (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Miers Legal (Offender)
File Number(s):	2021/358521
Publication restriction:	None