RH v R

Case [2019] NSWCCA 64


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: RH v R [2019] NSWCCA 64
Hearing dates: 15 February 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: 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
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 66C, 66EB
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
District Court Rules 1973 (NSW), r 53.12
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Dayment v R [2018] NSWCCA 132
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
GW v R [2018] NSWCCA 79
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lloyd v R [2017] NSWCCA 303
Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 45
Miles v R [2017] NSWCCA 266
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Ngati v R [2018] NSWCCA 32
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Perrin v R [2006] NSWCCA 64
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Wilhelm [2010] NSWSC 378
R v Wilkinson (No 5) [2009] NSWSC 432
SAT v R [2009] NSWCCA 172
SGJ v R; KU v R [2008] NSWCCA 258
Silvano v R [2008] NSWCCA 118; 184 A Crim R 593
Skocic v R [2014] NSWCCA 225
Tatana v R [2006] NSWCCA 398
Vandeventer v R [2013] NSWCCA 33
Wong v R (2001) 207 CLR 584; [2001] HCA 64
Category:Principal judgment
Parties: RH (Applicant)
Regina (Crown)
Representation:

Counsel:
N Carroll (Applicant)
P Leask (Crown)

  Solicitors:
Younes and Espiner Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2015/285010
Publication restriction: Nil
 Decision under appeal 

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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