Hoeben CJ at CL at [1] Schmidt J at [2] Adamson J at [101]
Decision:
(1) Leave to appeal is granted. (2) The appeal is dismissed.
Catchwords:
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Multiple sexual offences against young daughter – Whether sentencing judge erred in assessment of objective seriousness — Whether consideration of aggravating factors resulted in double counting
CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Whether loss of children as a result of offending is a form of extra-curial punishment
CRIME — Appeals — Appeal against sentence — Manifest excess
CRIME — Appeals — Appeal against sentence – Whether sentencing judge increased the aggregate sentence without reasons – Sentence perfected when entered on the indictment signed by the judge — District Court Rules 1973 (NSW), r 53.12 — Sentence not increased
CRIME — Appeals — Appeal against sentence — misapplication of principle – Parity – No error
Solicitors: Younes and Espiner Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):
2015/285010
Publication restriction:
Nil
Decision under appeal
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.
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Details
AGLC
RH v R [2019] NSWCCA 64
Case
[2019] NSWCCA 64
Decision Date
CaseChat Overview and Summary
In the case of RH v R, the appellant, RH, was convicted of multiple sexual offences against his young daughter. RH appealed against his sentence on several grounds, including that the sentencing judge erred in assessing the objective seriousness of the offences, whether consideration of aggravating factors resulted in double counting, and if the loss of his children as a result of the offending was a form of extra-curial punishment. RH also argued that the sentencing judge failed to take into account a relevant consideration and that the sentence was manifestly excessive. Additionally, RH contended that the sentencing judge had misapplied the principle of parity and increased the aggregate sentence without reasons.
The court examined whether the sentencing judge erred in the assessment of the objective seriousness of the offences and whether there was double counting of aggravating factors. The court also considered whether the loss of the children as a result of the offending constituted a form of extra-curial punishment and if the sentencing judge failed to take into account a relevant consideration. Furthermore, the court assessed whether the sentence was manifestly excessive and whether there was a misapplication of the principle of parity and if the sentence was increased without reasons.
The court concluded that the sentencing judge did not err in the assessment of the objective seriousness of the offences, and there was no double counting of aggravating factors. The court found that the loss of the children as a result of the offending was not a form of extra-curial punishment, and the sentencing judge had not failed to take into account a relevant consideration. The court also determined that the sentence was not manifestly excessive and that there was no misapplication of the principle of parity or increase of the sentence without reasons. Consequently, the appeal against sentence was dismissed.
The final orders of the court were that the appeal against sentence was dismissed. The sentence entered by the sentencing judge remained in place, as there was no error in the assessment of the objective seriousness of the offences, no double counting of aggravating factors, no failure to take into account a relevant consideration, no misapplication of the principle of parity, and no increase of the sentence without reasons.