R v RH - [2024] NSWDC 379

District Court

New South Wales

Medium Neutral Citation: R v RH [2024] NSWDC 379
Hearing dates: 1 August 2024
Decision date: 16 August 2024
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
(1) For the offence to which he pleaded guilty the offender is convicted.
(2) Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed for the offence is to be served by way of a Community Corrections Order.
(3) The Community Corrections Order imposed is for a period of 2 years, commencing 16 August 2024 and expiring on 15 August 2026.
(4) The standard conditions for a Community Corrections Order apply:
(a) the offender must not commit any offence; and,
(b) the offender must appear before the Court if called on to do so at any time during the term of the orders.
(5) The following additional condition applies:
(a) a supervision condition requiring the offender to submit to the supervision of the office of community corrections for so long as that service deems necessary during the terms of the order.
(6) If the offender fails to comply with the conditions of this order, further action may be taken against him. This may require him to return to court to be re-sentenced.

Catchwords:
CRIME — Sexual offences — Indecent assault --- Historical offences against victims under 16 years of age by priest of the Catholic Church
SENTENCING — Relevant factors on sentence — Delay --- Impact of delay on principles of totality and proportionality, considering previous period spent in custody – Imposition of Community Corrections Order
SENTENCING — Subjective considerations on sentence — Age of offender --- Advanced age which would make custody more onerous --- consideration of advanced age on need for general and specific deterrence
SENTENCING — Subjective considerations on sentence — Health issues --- Health concerns which would make custody more onerous

Legislation Cited:
Crimes Act 1900 (NSW), s 76
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 5, 8, 21A(2)(eb), 21A(2)(k), 21A(3)(k), 21A(5A), 25D, 25AA

Cases Cited:
R v Catell [2019] NSWCCA 297
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Richards v R [2023] NSWCCA 107
R v Obbens [2022] NSWCCA 109

Texts Cited:
Nil

Category: Sentence
Parties: Director for Public Prosecutions (NSW) (Crown)
RH (Offender)
Representation:
Counsel:
Ms E Sullivan (Forbes Chambers)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Barker Evans (Defence)

File Number(s): 2023/00159358
Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter.

JUDGMENT

The offender, RH, is to be sentenced today for one offence, namely, indecent assault of a female under 16 years, an offence under s 76 of the Crimes Act 1900 (NSW) (Sequence 2). This has a maximum penalty of 6 years imprisonment. There is no standard non-parole period.
There are three…

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 RH

Details

AGLC: R v RH [2024] NSWDC 379
Case: [2024] NSWDC 379
Decision Date: 16 August 2024

CaseChat Overview and Summary

In the matter of R v RH, the defendant was convicted of indecent assault against a victim under 16 years of age. The incident occurred several years prior and involved the defendant, a priest of the Catholic Church, committing the offence against a minor. The case was heard in the Supreme Court of New South Wales. The defendant pleaded guilty to the charge, and the court was tasked with determining an appropriate sentence.

The court had to consider several legal issues, including the impact of the significant delay in bringing the case to trial on the principles of totality and proportionality. Given the length of time since the offence occurred, the court also had to weigh the previous period the defendant had spent in custody. Additionally, the court needed to consider the subjective factors, such as the defendant's advanced age, which would make custodial sentencing more onerous, and his health issues, which would similarly exacerbate the difficulties of imprisonment.

The court held that due to the delay in prosecuting the case, the principles of totality and proportionality necessitated a sentence that would not unduly punish the defendant. The defendant's advanced age and health concerns were also significant factors, as these conditions would make imprisonment more burdensome. In light of these considerations, the court determined that a Community Corrections Order was the most appropriate sentence. The court imposed a Community Corrections Order for a period of two years, with specific conditions including a supervision requirement and prohibitions against committing further offences or failing to appear in court if required.

The orders of the court include a conviction for the offence to which the defendant pleaded guilty, a sentence to be served via a Community Corrections Order for two years, and various conditions that the defendant must adhere to, including a supervision condition and prohibitions against reoffending and failure to appear in court. Failure to comply with these conditions may result in further action, including a return to court for re-sentencing.

Orders

Orders of the court

(1) For the offence to which he pleaded guilty the offender is convicted.

(2) Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed for the offence is to be served by way of a Community Corrections Order.

(3) The Community Corrections Order imposed is for a period of 2 years, commencing 16 August 2024 and expiring on 15 August 2026.

(4) The standard conditions for a Community Corrections Order apply:

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

(b) the offender must appear before the Court if called on to do so at any time during the term of the orders.

(5) The following additional condition applies:

(a) a supervision condition requiring the offender to submit to the supervision of the office of community corrections for so long as that service deems necessary during the terms of the order.

(6) If the offender fails to comply with the conditions of this order, further action may be taken against him. This may require him to return to court to be re-sentenced.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v RH [2024] NSWDC 379
Hearing dates:	1 August 2024
Decision date:	16 August 2024
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	(1) For the offence to which he pleaded guilty the offender is convicted. (2) Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed for the offence is to be served by way of a Community Corrections Order. (3) The Community Corrections Order imposed is for a period of 2 years, commencing 16 August 2024 and expiring on 15 August 2026. (4) The standard conditions for a Community Corrections Order apply: (a) the offender must not commit any offence; and, (b) the offender must appear before the Court if called on to do so at any time during the term of the orders. (5) The following additional condition applies: (a) a supervision condition requiring the offender to submit to the supervision of the office of community corrections for so long as that service deems necessary during the terms of the order. (6) If the offender fails to comply with the conditions of this order, further action may be taken against him. This may require him to return to court to be re-sentenced.
Catchwords:	CRIME — Sexual offences — Indecent assault --- Historical offences against victims under 16 years of age by priest of the Catholic Church SENTENCING — Relevant factors on sentence — Delay --- Impact of delay on principles of totality and proportionality, considering previous period spent in custody – Imposition of Community Corrections Order SENTENCING — Subjective considerations on sentence — Age of offender --- Advanced age which would make custody more onerous --- consideration of advanced age on need for general and specific deterrence SENTENCING — Subjective considerations on sentence — Health issues --- Health concerns which would make custody more onerous
Legislation Cited:	Crimes Act 1900 (NSW), s 76 Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 5, 8, 21A(2)(eb), 21A(2)(k), 21A(3)(k), 21A(5A), 25D, 25AA
Cases Cited:	R v Catell [2019] NSWCCA 297 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Richards v R [2023] NSWCCA 107 R v Obbens [2022] NSWCCA 109
Texts Cited:	Nil
Category:	Sentence
Parties:	Director for Public Prosecutions (NSW) (Crown) RH (Offender)
Representation:	Counsel: Ms E Sullivan (Forbes Chambers) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Barker Evans (Defence)
File Number(s):	2023/00159358
Publication restriction:	Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter.