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TH v The Queen

TH v The Queen

Case [2019] NSWCCA 184 14 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TH v R [2019] NSWCCA 184
Hearing dates: 17 July 2019
Date of orders: 14 August 2019
Decision date: 14 August 2019
Before: Leeming JA at [1]
Davies J at [2]
Hidden AJ at [54]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of aggravated indecent assault of a child under the age of 16 years – applicant the paternal grandfather of the complainant – complainant stayed over at the applicant’s home and slept in his bed – applicant pulled down the complainant’s pants while pressed against her – sentencing judge found that the applicant had an erection and had ejaculated during the commission of the indecent assault – applicant asserted that he had an incontinence problem and had unwillingly urinated on the complainant – issue relevant to measure of objective seriousness of offending - whether the sentencing judge’s finding of fact was consistent with the jury’s verdict – where the veracity of the applicant’s alleged incontinence was cast into doubt by the evidence – the sentencing judge’s finding was the only rational inference from the facts – finding made beyond reasonable doubt – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 61M
Cases Cited: AB v R [2014] NSWCCA 339
Aoun v R [2011] NSWCCA 284
Cheung v R (2001) 209 CLR 1; [2001] HCA 67
Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
Hordern v R [2019] NSWCCA 138
Peters v R [2013] NSWCCA 324
R v O’Donoghue (1988) 34 A Crim R 397
Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220
Texts Cited: Nil
Category: Principal judgment
Parties: TH (Applicant)
Crown (Respondent)
Representation:
Counsel:
F Coyne (Applicant)
C Gleeson (Respondent)
Solicitors:
Lisa De Luca & Company (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/205655
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

20 November 2017

Before:

Letherbarrow SC DCJ

File Number(s):

2016/205655

Judgment

LEEMING JA: I agree with Davies J. In particular, I agree with his Honour that it is unnecessary for the purposes of resolving this appeal to express a view as to the different approaches to factual challenges made by a sentencing judge in Hordern v R [2019] NSWCCA 138, being an issue which was not the subject of submissions.
DAVIES J: The applicant stood trial before a jury on one count of aggravated indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). On 28 September 2017 the jury found him guilty of that offence. The maximum penalty for this offence is ten years’ imprisonment. There is a standard non-parole period of eight years.
On 20 November 2017 he was…

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 TH v The Queen

Details

AGLC: TH v The Queen [2019] NSWCCA 184
Case: [2019] NSWCCA 184
Decision Date: 14 August 2019

CaseChat Overview and Summary

The case of TH v The Queen involved an appeal against a sentence imposed by a sentencing judge. The applicant, TH, was convicted of one count of aggravated indecent assault of a child under the age of 16 years. The complainant was TH's granddaughter, who stayed at his home and slept in his bed. The applicant was found to have pulled down the complainant's pants while pressed against her, and the sentencing judge determined that TH had an erection and had ejaculated during the assault. TH claimed that he had an incontinence problem and had unintentionally urinated on the complainant. This claim was relevant to the assessment of the objective seriousness of the offending. The issue before the court was whether the sentencing judge's finding of fact was consistent with the jury's verdict, given that the veracity of TH's alleged incontinence was cast into doubt by the evidence presented.

The court considered whether the sentencing judge's finding was the only rational inference from the facts. The court determined that the finding was indeed the only rational inference, and that it was made beyond reasonable doubt. The court held that the evidence supported the conclusion that TH had ejaculated during the assault, and that his claim of incontinence was not credible. The court found that the sentencing judge's finding was consistent with the jury's verdict, and that there was no basis for the appeal to succeed.

The appeal was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court found that the sentencing judge's assessment of the objective seriousness of the offending was appropriate, given the circumstances of the case. The court noted that the aggravated indecent assault of a child was a serious offence, and that the sentence imposed reflected the gravity of the offending. The court concluded that the appeal was without merit, and that the original sentence was appropriate. The orders of the court were that the appeal be dismissed, and that the original sentence be upheld.

Orders