PH v R [2023] NSWCCA 176

PH v R [2023] NSWCCA 176

Because the applicant specifically raised the impact of COVID-19 restrictions on his imprisonment and the sentencing judge indicated that she would take judicial notice of that impact but did not mention the factor in the remarks on sentence, the only available inference was that the relevant consideration was overlooked. That error required resentencing. On resentencing, the sexual offending was below the middle of the range but aggravated by breach of trust and commission in the victim's home; the ADVO offences were towards the lower end of the range; the applicant's subjective circumstances, early guilty pleas, special circumstances and onerous COVID-19 custody warranted a lesser...

Jurisdiction
Australia
Judgment Date
14 July 2023
Procedural Posture
Criminal Appeal Against Sentence; Application for Leave to Appeal / Court of Criminal Appeal From Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.
Legal Topics
['sexual Intercourse With a Child Under 10' 'contravening an Apprehended Domestic Violence Order' 'covid 19 and Custodial Conditions' 'aggravating Factors' 'breach of Trust' "commission of Offence in the Victim's Home" 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Intercourse With a Child Under 10' 'contravening an Apprehended Domestic Violence Order' 'covid 19 and Custodial Conditions' 'aggravating Factors' 'breach of Trust' "commission of Offence in the Victim's Home" 'manifest Excess']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to take into account the onerous impact of the COVID-19 pandemic on the conditions of imprisonment.' 'Whether the sentencing judge erred in the application of the commission in the home and breach of trust factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the aggregate sentence imposed was manifestly excessive.' 'What sentence should be imposed on resentencing.']

Ratio Decidendi

Because the applicant specifically raised the impact of COVID-19 restrictions on his imprisonment and the sentencing judge indicated that she would take judicial notice of that impact but did not mention the factor in the remarks on sentence, the only available inference was that the relevant consideration was overlooked. That error required resentencing. On resentencing, the sexual offending was below the middle of the range but aggravated by breach of trust and commission in the victim's home; the ADVO offences were towards the lower end of the range; the applicant's subjective circumstances, early guilty pleas, special circumstances and onerous COVID-19 custody warranted a lesser...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentence imposed in the District Court is quashed.' 'In lieu thereof, the applicant is sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years and 2 months.']