PH v R [2017] NSWCCA 79

PH v R [2017] NSWCCA 79

Leave to appeal was refused because the sentencing judge did not err in declining to make firm findings about the applicant's alleged childhood sexual abuse where the applicant did not give evidence, was put on notice of the difficulty, and the psychologist had questioned whether he was distorting or exaggerating his history. In any event, the judge considered the applicant's submission on the assumption that the reported abuse occurred, but was entitled to give it little weight given the seriousness of the offences, prior similar offending, the applicant's awareness that his conduct was wrong, and the need for specific deterrence and community protection. The challenged reference to...

Jurisdiction
Australia
Judgment Date
28 April 2017
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave to Appeal Refused
Outcome
Leave to appeal refused.
Legal Topics
['sexual Offences Against Children' 'aggravated Sexual Assault' 'aggravated Indecent Assault' 'subjective Circumstances on Sentence' 'deprived Background and Moral Culpability' 'self Reported History to Psychologists' 'specific Deterrence' 'protection of the Community' 'ex Tempore Sentencing Remarks']
['criminal Law' 'sentencing' 'appeals'] ['sexual Offences Against Children' 'aggravated Sexual Assault' 'aggravated Indecent Assault' 'subjective Circumstances on Sentence' 'deprived Background and Moral Culpability' 'self Reported History to Psychologists' 'specific Deterrence' 'protection of the Community' 'ex Tempore Sentencing Remarks']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave to Appeal Refused

Legal Issues

  1. 1 ["Whether the sentencing judge failed to undertake a fact-finding process about the applicant's difficult upbringing, including alleged childhood sexual abuse." "Whether the sentencing judge failed to take into account the applicant's difficult upbringing as a mitigating factor reducing moral culpability." 'Whether the sentencing judge misapprehended the facts by referring to ejaculation on each occasion of the charged offences.']

Ratio Decidendi

Leave to appeal was refused because the sentencing judge did not err in declining to make firm findings about the applicant's alleged childhood sexual abuse where the applicant did not give evidence, was put on notice of the difficulty, and the psychologist had questioned whether he was distorting or exaggerating his history. In any event, the judge considered the applicant's submission on the assumption that the reported abuse occurred, but was entitled to give it little weight given the seriousness of the offences, prior similar offending, the applicant's awareness that his conduct was wrong, and the need for specific deterrence and community protection. The challenged reference to...

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.']