HA v R [2023] NSWCCA 274

HA v R [2023] NSWCCA 274

The jury's verdicts convicting the applicant on counts 3 and 4 were not inconsistent with its acquittals on the other counts and were supported by the evidence; the sentencing judge erred by treating as an aggravating factor a circumstance (the complainant being 'under the authority' of the applicant) which would have constituted an element of a more serious offence not charged or proven. Accordingly, the appeal against sentence was allowed, and a lesser sentence imposed.

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Criminal Appeal / Judgment on Leave to Appeal, Conviction and Sentence
Outcome
Leave to appeal granted; appeal against conviction dismissed; appeal against sentence allowed; sentence quashed and replaced with aggregate sentence of 8 years and 3 months imprisonment, non-parole period 5 years.
Legal Topics
['appeal Against Conviction' 'appeal Against Sentence' 'unreasonable Verdict' 'de Simoni Principle' 'aggravating Circumstances' 'sexual Offences Against Children']
['criminal Law'] ['appeal Against Conviction' 'appeal Against Sentence' 'unreasonable Verdict' 'de Simoni Principle' 'aggravating Circumstances' 'sexual Offences Against Children']

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Procedural Posture

Criminal Appeal / Judgment on Leave to Appeal, Conviction and Sentence

Legal Issues

  1. 1 ['Whether jury verdicts of guilty on some counts were inconsistent with acquittals on others and thus unreasonable' 'Whether sentencing judge erred by taking into account as an aggravating factor a circumstance which would warrant conviction for more serious offence (De Simoni principle)']

Ratio Decidendi

The jury's verdicts convicting the applicant on counts 3 and 4 were not inconsistent with its acquittals on the other counts and were supported by the evidence; the sentencing judge erred by treating as an aggravating factor a circumstance (the complainant being 'under the authority' of the applicant) which would have constituted an element of a more serious offence not charged or proven. Accordingly, the appeal against sentence was allowed, and a lesser sentence imposed.

Court Disposition

Leave to appeal granted; appeal against conviction dismissed; appeal against sentence allowed; sentence quashed and replaced with aggregate sentence of 8 years and 3 months imprisonment, non-parole period 5 years.

Orders

  • ['Grant leave to appeal against both conviction and sentence.' 'Dismiss the appeal against conviction.' 'Allow the appeal against sentence.' 'Quash the sentence imposed by Judge Harris and in lieu thereof impose an aggregate sentence of 8 years and 3 months, with a non-parole period of 5 years. Sentence commences on...