AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
15
Court of Criminal Appeal 26 June 2009

PH v R

[2009] NSWCCA 161

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE LONG DELAY BEFORE COMPLAINT OFFENDER OF ADVANCED AGE PAROLE PERIOD.

Citation: PH v R [2009] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 26 June 2009
Judges: Grove J, Howie J, RA Hulme J

Background

The applicant pleaded guilty in the District Court to 17 counts of child sexual assault offences committed against two of his daughters between 1966 and 1974. The offences included indecent assault, carnal knowledge of a child under 10, and carnal knowledge by a father. The principal complainant, CH, was between 8 and 15 years old during the period of offending and became pregnant to the applicant at age 13.

Complaints were not made to police until 2004, some three decades after the offending ended. By the time the applicant was sentenced in May 2007 by Conlon DCJ in the District Court, he was in his early seventies. The sentencing judge imposed an overall term of 20 years with a minimum period of 12 years, meaning the applicant would not be eligible for parole until he was nearly 85.

The applicant sought leave to appeal that sentence. It subsequently emerged that, in addition to the substantive grounds of appeal, a typographical error in the sentencing remarks had resulted in one component of the sentence exceeding the applicable statutory maximum.

  • Whether the sentences imposed were manifestly excessive given the applicant's advanced age and the particular sentencing regime applicable at the time of the offences
  • Whether the sentencing judge erred by imposing sentences for the carnal knowledge by a father offences that exceeded the statutory maximum of 14 years
  • Whether special circumstances existed warranting a departure from the standard ratio between non-parole period and total sentence
  • Whether the overall structure of cumulative sentences complied with the principles in Pearce v R

Decision

Howie J (with Grove J and RA Hulme J agreeing) found that the sentences could not stand. Most critically, the sentences imposed for each count of carnal knowledge by a father totalled 16 years, exceeding the 14-year statutory maximum for that offence. This resulted from a transcription error: the sentencing judge's handwritten notes recorded an additional term of 5 years, but his associate typed "8" years. The judge did not detect the error before passing sentence. Even accepting the judge's stated intention of a 17-year overall term, the Court of Criminal Appeal was required to re-sentence.

Howie J described the offending as within the worst category of its kind, noting a host of aggravating features including the pregnancy of a 13-year-old child and the applicant's continuation of abuse even after that event. The Court acknowledged that, had the applicant been sentenced at the time of the offences, the maximum penalties for some charges would have been unavoidable.

However, the Court accepted that the applicant's advanced age and health meant he could not now serve a sentence approaching the severity that the objective gravity of the offending would otherwise demand. Applying a 20 per cent discount for the guilty pleas to a notional sentence of 18 years, the Court arrived at an overall sentence of 14 years and 6 months, with an overall non-parole period of 6 years and 6 months. This would make the applicant eligible for release to parole around his 80th birthday. The Court found that special circumstances existed, justifying the variation from the standard non-parole period proportion, primarily because of the applicant's age and the practical effect of a long additional term.

The Court also noted that the cumulative structure of the original sentences was not in accordance with the approach required by Pearce v R, which governs how courts should structure cumulative sentences to avoid double punishment for related offending. The re-sentenced orders reflected a partly cumulative structure, including a separate fixed term for the offence involving the second complainant VH.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • District Court sentences quashed
  • In lieu, the applicant was re-sentenced as follows:
  • Counts 1, 4, 5, 7 to 10: fixed term of 18 months each, commencing 18 August 2006, expiring 17 February 2008
  • Count 17: fixed term of 1 year, commencing 18 August 2007, expiring 17 August 2008
  • Counts 2, 3 and 6: fixed term of 4 years each, commencing 18 August 2008, expiring 17 August 2012
  • Counts 11 to 16: minimum term of 3 years and 6 months commencing 18 August 2009, expiring 17 February 2013 (parole eligibility date), with an additional term of 8 years expiring 17 February 2021

Key Takeaways

  • A sentence imposed for an offence that exceeds the applicable statutory maximum is a legal error requiring correction on appeal, even where the excess resulted from a transcription error rather than a deliberate judicial decision.
  • Sentencing courts must apply the law as it stood at the time of the offence when dealing with historic offending, including the maximum penalties then in force under now-repealed provisions of the Crimes Act.
  • Advanced age and deteriorating health can constitute special circumstances justifying a departure from the standard ratio between non-parole period and total sentence, even where the offending is of the utmost seriousness.
  • The Court of Criminal Appeal confirmed that the cumulative structuring of sentences for multiple related offences must comply with the principles in Pearce v R, requiring careful attention to totality and the avoidance of double punishment.
  • Long delay between historic offending and eventual sentencing does not diminish the objective gravity of the conduct, but it may significantly constrain the sentence a court can practically and justly impose on an elderly offender.

Legislation and Cases Referenced

Legislation
- Crimes Act (now repealed): ss 67, 73, 76
- Parole of Prisoners Act 1966

Cases
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Holyoak (1995) 82 A Crim R 502
- CPW v R [2009] NSWCCA 105
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- MJL v R [2007] NSWCCA 261
- Bradbury v R [2008] NSWCCA 93