DH v R [2019] NSWCCA 128

DH v R [2019] NSWCCA 128

The sentencing process miscarried because counts 1 and 3 were incorrectly pleaded by reference to a statutory age of 16 years, the sentencing Judge was not made aware that s 61M(2) then applied to children under 10, and that misunderstanding materially affected the assessment of objective seriousness. The Judge also erred in treating the complainant's age as establishing vulnerability under s 21A(2)(l), as all children within the provision were necessarily vulnerable. Exercising the sentencing discretion afresh, a less severe aggregate sentence was warranted.

Jurisdiction
Australia
Judgment Date
14 June 2019
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From an Aggregate Sentence Imposed in the District Court of NSW
Outcome
Application for leave to appeal granted; appeal allowed; aggregate sentence quashed; applicant resentenced to an aggregate sentence of 10 years with a non-parole period of 7.5 years.
Legal Topics
['child Sexual Assault' 'indecent Assault' 'objective Seriousness' 'statutory Age of Victim' 'aggravating Factors' 'vulnerable Victim' 'aggregate Sentencing' 'non Parole Period' 'resentencing After Error']
['criminal Law' 'sentencing'] ['child Sexual Assault' 'indecent Assault' 'objective Seriousness' 'statutory Age of Victim' 'aggravating Factors' 'vulnerable Victim' 'aggregate Sentencing' 'non Parole Period' 'resentencing After Error']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From an Aggregate Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing Judge erred in assessing the objective seriousness of counts 1 and 3 by reference to a maximum statutory age of 16 years rather than the statutory age of 10 years applicable at the time of the offences.' 'Whether the sentencing Judge erred in finding that s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied on the basis that the complainant was a vulnerable victim by reason of age.' 'Whether, if error was established, a different and less severe sentence was warranted.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing process miscarried because counts 1 and 3 were incorrectly pleaded by reference to a statutory age of 16 years, the sentencing Judge was not made aware that s 61M(2) then applied to children under 10, and that misunderstanding materially affected the assessment of objective seriousness. The Judge also erred in treating the complainant's age as establishing vulnerability under s 21A(2)(l), as all children within the provision were necessarily vulnerable. Exercising the sentencing discretion afresh, a less severe aggregate sentence was warranted.

Court Disposition

Application for leave to appeal granted; appeal allowed; aggregate sentence quashed; applicant resentenced to an aggregate sentence of 10 years with a non-parole period of 7.5 years.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'The aggregate sentence imposed in the District Court is quashed.' 'The applicant is sentenced to an aggregate sentence comprising an aggregate non-parole period of 7½ years commencing on 16 November 2017 and expiring on 15 May 2025 with a balance of...