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Court of Criminal Appeal 2 August 2017

Hornhardt v R

[2017] NSWCCA 186

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PLEA OF GUILTY PAROLE PERIOD OF 2 YEARS HEALTH AND REMORSE BREACH OF DI SIMONI PRINCIPLE

Citation: Hornhardt v R [2017] NSWCCA 186
Court: Court of Criminal Appeal, NSW
Date: 2 August 2017
Judges: Hoeben CJ at CL (principal judgment); Price J; Adamson J (both agreeing)

Background

The appellant pleaded guilty in the Local Court to seven historical sexual offences against his three daughters, committed between 1965 and 1978 when the victims were aged between 5 and 12 years old. The offences included digital penetration, groping, lying on the children, and forcing one daughter to masturbate him. The crimes were not isolated events and involved significant moral culpability. A non-publication order applies to this decision, extending to the appellant's identity.

The appellant was sentenced on 27 May 2016 to an aggregate term of four years' imprisonment with a non-parole period of two years. He was considerably aged and in poor health at the time of sentencing. All offences were reported to police in mid-2014, roughly 40 to 50 years after they occurred.

The appeal was filed approximately six months late. Legal Aid funding delays and the time required to obtain transcripts and a merits advice contributed to that delay. The Court granted an extension of time, finding it was in the interests of justice to do so given the appeal's prospects.

  • Whether the sentencing judge gave sufficient weight to the appellant's age, ill-health, and remorse
  • Whether the sentencing judge gave sufficient weight to the delay in prosecution
  • Whether the sentencing judge misstated the facts underpinning one of the counts (Count 7), thereby contravening the Di Simoni principle (which prohibits sentencing an offender for a more serious form of an offence than the one to which they pleaded guilty)
  • Whether any identified error warranted the imposition of a lesser sentence on resentencing

Decision

The Court rejected the appellant's grounds that insufficient weight was given to his age, ill-health, and remorse, and to the delay in prosecution. Applying the principles from House v The King, appellate intervention on these grounds requires demonstrated error in the exercise of the sentencing discretion, not merely a different assessment. No such error was established on those issues.

However, the Crown identified an error relating to Count 7, which charged only an act of indecency (under s 76A of the Crimes Act 1900 (NSW), now repealed), not the more serious offence of assault and indecency charged in the other counts. The sentencing judge had described the facts of the more serious offence when addressing Count 7, and his indicative sentence appeared to reflect that misdescription. This breached the Di Simoni principle, which prohibits sentencing on a factual basis more serious than the offence charged. The appellant was granted leave to add this as a further ground of appeal.

The Court accordingly undertook a resentencing exercise. Despite identifying the error, it concluded that no lesser aggregate sentence was warranted. The objective gravity of the overall offending remained high: three victims, representative counts, and repeated conduct over many years. The Court observed that in historical sexual offending cases, advanced age alone is not a mitigating factor. The only adjustment made was to reduce the indicative sentence for Count 7 from 6 months to 3 months, leaving the aggregate sentence and non-parole period unchanged.

Orders Made

  • Time for filing the application for leave to appeal extended to 31 May 2017
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that in cases of historical child sexual offences, advanced age of itself is not a mitigating factor and does not reduce what is otherwise an appropriate custodial term.
  • A breach of the Di Simoni principle arises where a sentencing judge describes or reasons from facts that correspond to a more serious version of the offence than the one to which the offender pleaded guilty, even where the error appears relatively minor in isolation.
  • Identifying a Di Simoni error triggers a resentencing obligation, but resentencing does not automatically produce a lesser outcome: where the overall criminality remains unchanged, the same sentence may be reimposed.
  • Delay in filing a sentence appeal does not automatically preclude the grant of an extension of time; the interests of justice and the prospects of the appeal are both relevant considerations.
  • In dismissing the appeal on sentence, the Court illustrated that mitigating factors such as remorse, ill-health, and prosecution delay must be balanced against the objective gravity of the offending, and that appellate courts will not intervene merely because a different balance might have been struck at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 76 (repealed)
- Criminal Appeal Act 1912 (NSW), s 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A

Cases
- Golossian v R [2013] NSWCCA 311
- House v The King [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lehn v R [2016] NSWCCA 255
- Magnuson v R [2013] NSWCCA 50
- Ngati v R [2013] NSWCCA 203
- RLS v R [2012] NSWCCA 236
- Wilson v R [2017] NSWCCA 41
- Zhao v R [2016] NSWCCA 179