R v TJH - [2001] NSWCCA 433

CITATION: R v TJH [2001] NSWCCA 433

FILE NUMBER(S): CCA 60831/01

HEARING DATE(S): 19 October 2001

JUDGMENT DATE:
19 October 2001

PARTIES :

Regina
TJH

JUDGMENT OF: Wood CJ at CL at 1; Grove J at 45

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/51/0126 & 99/21/1130

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : C: Ms D. Woodburne
A: Mr A Haesler

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - aggravated sexual assault - indecent sexual assault - sexual offences against children - failure to complete Cedar Cottage programme - whether correct starting point for sentence - whether accumulation of sentence appropriate - no error of sentencing principle - whether sentencing Judge took too narrow view of special circumstances in not finding such circumstances to exist - inappropriate for court to embark upon settling manner of sentencing principle as to what may be special circumstances - that issue is reserved for a five judge bench.

LEGISLATION CITED: Crimes Act 1900 ss 61D(1), 61D(1A), 61E, 61J, 61M
Criminal Appeal Act 1912 s 6
Per-trial Diversion of Offenders Act 1985, s 33

DECISION: Leave to appeal granted. Appeal dismissed

60831/00

WOOD CJ AT CL
GROVE J
19TH OCTOBER 2001

REGINA V TJH

Judgment

1 WOOD CJ AT CL: The applicant seeks leave to appeal against the severity of the sentence imposed upon him by his Honour Judge Gibson QC in the District Court at Penrith on 10 November 2000.

2 Upon that occasion his Honour had before him two sets of offences which had come before his Honour Judge Neild and himself during the previous year, and which had initially been dealt with on a non-custodial basis. In summary, they involved the following circumstances:

Offences committed against his daughter SH

3 Between 2 November 1993 and 1 November 1997 the applicant committed one offence of aggravated sexual assault (s 61 J Crimes Act 1900, for which the maximum available sentence was imprisonment for 20 years), and four offences of aggravated indecent assault (s 61 M Crimes Act 1900 for which the maximum penalty is imprisonment for 7 years). The first of the offences involved him inserting his erect penis in the victim's mouth after telling her that he was going to place a lolly into it. The other offences involved him requiring her to remove her underpants and to sit upon his exposed penis while he rubbed it on the outside of her vagina until he ejaculated.

4 She was aged between five and eight years when these offences occurred. Their seriousness was compounded by the instruction which the applicant gave to her not to tell anyone, and by the circumstance that he "told her off" when he discovered that certain of the incidents had been reported to her mother. After DOCS had been contacted he approached police and made partial admissions concerning his misconduct.

5 This series of offences came before 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 TJH

Details

AGLC: R v TJH [2001] NSWCCA 433
Case: [2001] NSWCCA 433
Decision Date: 19 October 2001

CaseChat Overview and Summary

In the case of R v TJH, the appellant was convicted of multiple sexual offences against children, including aggravated sexual assault and indecent sexual assault. The respondent sought an appeal against the sentence imposed by the trial Judge. The appeal was heard by the Court of Appeal, which had to decide if the sentence was manifestly excessive and whether the Judge had erred in his assessment of special circumstances and the accumulation of sentence.

The court was required to consider whether the starting point for the sentence was correct and if the accumulation of sentence was appropriate. The appellant argued that the Judge failed to take into account the fact that he had not completed the Cedar Cottage programme, which was intended to address his offending behaviour. The court also had to assess whether the Judge had erred in his assessment of special circumstances and if the sentence imposed was appropriate for the gravity of the crimes committed.

The Court of Appeal found that there was no error in the sentencing principle applied by the Judge, and that the sentence was not manifestly excessive. The court held that the Judge had correctly assessed the special circumstances and determined that they did not exist in this case. The court also found that the Judge had appropriately accumulated the sentence for the various offences committed. It was held that it was not appropriate for the Court of Appeal to embark upon settling the manner of sentencing principle as to what may be special circumstances, as that issue was reserved for a five-judge bench.

The appeal was dismissed, and the original sentence imposed by the trial Judge was upheld.

Orders