R v KH [2022] NSWDC 706

R v KH [2022] NSWDC 706

Counts two and four are not 'prescribed sexual offences' under s 67 Crimes (Sentencing Procedure) Act 1999, so an Intensive Correction Order is available; count six is under s 66EA(1) Crimes Act and constitutes a prescribed sexual offence, so ICO is unavailable and standard sentencing applies. The offender's age, health, delay, and rehabilitation constitute special circumstances, warranting modification of the statutory ratio and leniency. Aggregate sentence and non-parole period imposed in accordance with subjective and objective factors.

Jurisdiction
Australia
Judgment Date
16 September 2022
Procedural Posture
Criminal / Sentence
Outcome
convicted and sentenced
Legal Topics
['indecent Assault' 'historical Offences' 'prescribed Sexual Offence' 'community Correction Order' 'intensive Correction Order' 'unlawful Sexual Relationship' 'retrospective Operation' 'special Circumstances' 'covid 19 Hardship' 'delay in Prosecution' 'aggravating and Mitigating Factors']
['criminal Law'] ['indecent Assault' 'historical Offences' 'prescribed Sexual Offence' 'community Correction Order' 'intensive Correction Order' 'unlawful Sexual Relationship' 'retrospective Operation' 'special Circumstances' 'covid 19 Hardship' 'delay in Prosecution' 'aggravating and Mitigating Factors']

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Procedural Posture

Criminal / Sentence

Legal Issues

  1. 1 ['Availability of Intensive Correction Order for historical offences' 'Definition of prescribed sexual offence under s 67 Crimes (Sentencing Procedure) Act' 'Retrospective operation of s 66EA Crimes Act' 'Assessment of objective seriousness for sexual offences involving children' 'Consideration of delay and hardship in prison in sentencing']

Ratio Decidendi

Counts two and four are not 'prescribed sexual offences' under s 67 Crimes (Sentencing Procedure) Act 1999, so an Intensive Correction Order is available; count six is under s 66EA(1) Crimes Act and constitutes a prescribed sexual offence, so ICO is unavailable and standard sentencing applies. The offender's age, health, delay, and rehabilitation constitute special circumstances, warranting modification of the statutory ratio and leniency. Aggregate sentence and non-parole period imposed in accordance with subjective and objective factors.

Court Disposition

convicted and sentenced

Orders

  • ['Three-year community correction order for count two, with conditions not to commit an offence and appear before court if called upon.' 'Aggregate sentence of 24 months imprisonment for counts four and six, commencing 26 August 2022, expiring 25 August 2024.' 'Non-parole period of eight months, parole release date...