Regina v CDH - [2002] NSWCCA 103

CITATION: Regina v CDH [2002] NSWCCA 103

FILE NUMBER(S): CCA 60411/01

HEARING DATE(S): 25 March 2002

JUDGMENT DATE:
3 April 2002

PARTIES :

Regina v CDH

JUDGMENT OF: Levine J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/31/0406

LOWER COURT JUDICIAL
OFFICER : Her Honour Judge English

COUNSEL : Crown - P.E. Barrett
Applicant - P.J.D. Hamill

SOLICITORS: Crown - S.E. O'Connor
Applicant - D.J. Humphreys

CATCHWORDS: Sentence appeal - various sexual offences against a child under ten - whether sufficient allowance for admissions to the police under the Ellis principle.

LEGISLATION CITED: Crimes Act 1900, s 61M(1), s 66A, s 66B

CASES CITED:
House v The King (1936) 35 CLR 499
R v AB (CCA, 7 July 1997, unreported)
R v AGR (CCA 24 July 1998, unreported)
R v Balfour (CCA 31 July 1996, unreported)
R v Davis [2001] NSWCCA 70
R v Ellis (1986) 6 NSWLR 603
R v Leon (CCA, 30 November 1994, unreported)
R v McLear (NSWCCA, 1 September 1992)
R v Mangoline (CCA, 17 August 1998)
R v Simpson [2001] NSWCCA 534
R v Wahabzadah [2001] NSWCCA, unreported
Ryan v The Queen [2001] HCA 21

DECISION: Application for leave to appeal granted. Appeal allowed. For re-sentencing see pars 39-43

60411/01

LEVINE J
CARRUTHERS AJ
Wednesday, 3 April 2002

REGINA v CDH

Judgment

1 LEVINE J: I agree.

2 CARRUTHERS AJ: CDH seeks an extension of time and leave to appeal against sentences imposed upon him by her Honour Judge English in the District Court at Gosford on 15 February 2001.

3 The applicant pleaded guilty in the Local Court at Wyong on 24 October 2000 to two charges of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 (the Act) (counts 1 and 4), which offence carries a maximum penalty of imprisonment for seven years; one charge of attempted sexual intercourse with a child under ten years pursuant to s 66B of the Act (count 2), which offence carries a maximum penalty of imprisonment for twenty years; and one charge of sexual intercourse with a child under ten years pursuant to s 66A of the Act (count 3), which offence carries a maximum penalty of imprisonment for twenty years.

4 Her Honour was also asked to take into account a further offence under s 61M(1) contained in a Form 1, such offence occurring between 1 September 1998 and 31 October 1998.

5 In relation to the charge under s 66A (and taking into account the matter in the Form 1) her Honour sentenced the applicant to imprisonment for six years to date from 9 February 2001 and to expire on 8 February 2007. Her Honour fixed a non-parole period of four years and six months to commence on 9 February 2001 and to expire on 8 August 2005.

6 In relation to the other charges the applicant was sentenced to concurrent fixed terms of three, three and two years respectively. The sentences…

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 Regina v CDH

Details

AGLC: Regina v CDH [2002] NSWCCA 103
Case: [2002] NSWCCA 103
Decision Date: 3 April 2002

CaseChat Overview and Summary

Regina v CDH was an appeal by the defendant against the severity of a sentence imposed by the County Court following a conviction on charges of sexual offences against a child under ten years old. The case was heard by the Court of Appeal, which was required to determine whether the trial judge had appropriately considered the defendant's admissions to the police in the sentencing process, in accordance with the principles established in Ellis. The defendant argued that the trial judge had not sufficiently accounted for these admissions, leading to an unduly harsh sentence.

The legal issue before the Court of Appeal was whether the trial judge had erred in not applying the principles set out in Ellis to reduce the sentence based on the defendant's admissions. Under the Ellis principle, a court must consider a defendant's admissions to police when determining the appropriate sentence, and may reduce the sentence if it considers the admissions to be a mitigating factor. The Court of Appeal examined the sentencing remarks of the trial judge to determine whether these principles had been correctly applied.

The Court of Appeal concluded that the trial judge had failed to appropriately consider the defendant's admissions to police in determining the sentence. The court found that the trial judge's remarks did not adequately address the mitigating effect of the admissions, and that this omission led to an overestimation of the severity of the sentence. The appeal was therefore allowed, and the matter was remitted to the County Court for resentencing. The Court of Appeal directed that the County Court should take into account the admissions in a manner consistent with the Ellis principle.

Orders