RH v R [2019] NSWCCA 64

RH v R [2019] NSWCCA 64

Leave to appeal was granted but the appeal was dismissed because no sentencing error was established. The judge's assessment of objective seriousness was open, including because the applicant was sentenced on counts 1 to 4 on the basis of joint criminal enterprise and her actual conduct and surrounding circumstances were grave. Taking account of the child's vulnerability to offending by her mother did not double count age, breach of trust, authority, or offending in the home. Removal of the applicant's children from her care was not extra-curial punishment but a natural consequence of the offending and child safety concerns. The aggregate sentence of 16 years with an 11 year non-parole...

Jurisdiction
Australia
Judgment Date
29 March 2019
Procedural Posture
Criminal Appeal Against Sentence; Application for Leave to Appeal / Court of Criminal Appeal Application for Leave to Appeal From Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sexual Offences Against a Child' 'objective Seriousness' 'aggravating Factors and Double Counting' 'extra Curial Punishment' 'manifest Excess' 'parity Between Co Offenders' 'aggregate Sentence and Perfection of Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Offences Against a Child' 'objective Seriousness' 'aggravating Factors and Double Counting' 'extra Curial Punishment' 'manifest Excess' 'parity Between Co Offenders' 'aggregate Sentence and Perfection of Sentence']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the objective seriousness of the applicant's offending." "Whether taking account of the complainant's vulnerability involved double counting because of the complainant's age or the applicant's position of trust or authority." "Whether the removal of the applicant's children from her care and loss of contact with them amounted to extra-curial punishment requiring mitigation." 'Whether the aggregate sentence was manifestly excessive.' 'Whether the sentencing judge invalidly increased the aggregate sentence without reasons after sentencing the applicant.' "Whether the sentence gave rise to a justifiable sense of grievance by reason of parity with the co-offender's sentence."]

Ratio Decidendi

Leave to appeal was granted but the appeal was dismissed because no sentencing error was established. The judge's assessment of objective seriousness was open, including because the applicant was sentenced on counts 1 to 4 on the basis of joint criminal enterprise and her actual conduct and surrounding circumstances were grave. Taking account of the child's vulnerability to offending by her mother did not double count age, breach of trust, authority, or offending in the home. Removal of the applicant's children from her care was not extra-curial punishment but a natural consequence of the offending and child safety concerns. The aggregate sentence of 16 years with an 11 year non-parole...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is dismissed.']