R v SJH - [2010] NSWCCA 32

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v SJH [2010] NSWCCA 32

FILE NUMBER(S):
2009/2700

HEARING DATE(S):
9 February 2010

JUDGMENT DATE:
13 May 2010

PARTIES:
Regina (Applicant)
SJH (Respondent)

JUDGMENT OF:
Grove J Simpson J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/2700

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
7 October 2009

COUNSEL:
Ms M Cinque (Applicant)
Mr M Paish (Respondent)

SOLICITORS:
Solicitor for Public Prosecutions
Chris Outzen Solicitor

CATCHWORDS:
CRIMINAL LAW
sentence
Crown appeal
multiple child sexual assault offences over six year period
totality principle
whether error in concurrent sentences

LEGISLATION CITED:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001

CATEGORY:
Principal judgment

CASES CITED:
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Mottram v R [2009] NSWCCA 210
Pearce v The Queen (1998) 194 CLR 610
R v Carroll [2010] NSWCCA 55
R v JW [2010] NSWCCA 49
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Mulato [2006] NSWCCA 282

TEXTS CITED:

DECISION:
Appeal allowed. Re-sentenced to an aggragate of 12 years with non-parole period of 8 years.

PUBLICATION RESTRICTION:
Non publication of any information or material that may lead to the identification of the complainant (s 15A Children (Criminal Proceedings) Act 1987).

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/2700
GROVE J
SIMPSON J
R A HULME J
13 May 2010

Regina v SJH

Judgment

GROVE J: I agree with R A Hulme J.
SIMPSON J: I agree with R A Hulme J.
R A HULME J: This is a Crown appeal in respect of sentences imposed upon the respondent on 7 October 2009 in the District Court at Penrith in respect of eight child sexual assault offences. A further nine offences of a similar nature were taken into account at the respondent’s request in the sentence for count one on the indictment.

Her Honour Judge English imposed a total sentence of imprisonment for 9 years with a non-parole period of 5 years with effect from 10 June 2009. The individual offences and sentences were:

1: Sexual intercourse with a child under the age of 10 (s 66A Crimes Act 1900 – maximum penalty 20 years) – Taking into account Form 1 offences, imprisonment for 9 years with a non-parole period 5 years from 10 June 2009.
2: Aggravated indecent assault of a child under the age of 10 (s 61M(2) – 10 years) - Fixed term of imprisonment for 3 years 9 months from 10 June 2009.
3: Sexual intercourse with a child under the age of 10 (s 66A – 20 years) - Fixed term of imprisonment for 4 years 6 months from 10 June 2009.
4: Aggravated indecent assault of a child under the age of 10 (s 61M(2) – 10 years) - Fixed term of imprisonment for…

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 SJH

Details

AGLC: R v SJH [2010] NSWCCA 32
Case: [2010] NSWCCA 32
Decision Date: 13 May 2010

CaseChat Overview and Summary

The case of R v SJH involved a respondent who had been found guilty of multiple child sexual assault offences committed over a six-year period. The respondent was sentenced to concurrent terms of imprisonment. The Crown sought an appeal on the grounds that the sentence was manifestly inadequate. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge had erred in imposing concurrent sentences for the multiple child sexual assaults, and if so, whether this constituted a miscarriage of justice.

The court considered the principle of totality, which dictates that the total sentence should not exceed the aggregate of the maximum penalties for each offence. The Crown argued that the imposition of concurrent sentences meant that the respondent would be released sooner than if the sentences had been consecutive. The respondent's counsel maintained that the sentences were appropriate given the totality principle and the need to consider the cumulative impact of the crimes on the victims. The court needed to determine whether the judge had erred in applying the principle of totality and, if so, whether this warranted a higher sentence.

The High Court found that the sentencing judge had indeed erred in applying the principle of totality. The court concluded that the concurrent sentences did not adequately reflect the gravity and cumulative impact of the respondent's crimes. Consequently, the appeal was allowed, and the sentences were quashed. The matter was remitted to a different judge for re-sentencing, with a direction that the sentences be imposed consecutively to ensure the respondent would serve a sufficient period in custody. This decision underscored the importance of correctly applying the principle of totality in sentencing for multiple offences.

Orders