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District Court 12 April 2022

R v JH

[2022] NSWDC 28

Sexual offences
SENTENCING SENTENCE SEXUAL INTERCOURSE WITH CHILD UNDER 10

Citation: R v JH [2022] NSWDC 28
Court: District Court of New South Wales
Date: 12 April 2022
Judge: Grant DCJ

Background

The offender had originally been sentenced on 3 June 2021 for a series of serious sexual offences against a child, DB, who was approximately five years old at the time of the offending. The offending occurred during sleepovers at the offender's home between November 2017 and August 2018 and included penile-anal intercourse (count 6) and penile-oral intercourse (count 7).

At the original sentence, the Crown filed a form 1 document in respect of count 7, requesting that the court take that matter into account alongside count 6. A form 1 is a procedural mechanism in NSW sentencing that allows additional offences to be acknowledged and to increase the penalty on a principal offence, without the offender being separately convicted and sentenced for those additional matters. The difficulty was that count 7 carried a maximum penalty of life imprisonment, and an offence carrying that maximum cannot lawfully be placed on a form 1.

The Crown itself filed a notice of appeal against the original sentence, relying in part on the error it had created by filing the form 1. The Court of Criminal Appeal (CCA) upheld that ground, found the sentencing proceedings had miscarried, and remitted the matter to the District Court for re-sentencing.

  • Whether the original sentencing proceedings miscarried as a result of the Crown incorrectly placing count 7 (an offence carrying a maximum penalty of life imprisonment) on a form 1 document.
  • How count 7 should be dealt with on re-sentence now that the offender had entered a guilty plea to it as a standalone count on the indictment.
  • What indicative sentences were appropriate for counts 6 and 7, and what aggregate sentence and non-parole period should apply.

Decision

Grant DCJ noted, with evident frustration, that a sentencing judge necessarily relies on the assistance of counsel, particularly the Crown, to ensure that procedural material placed before the court is accurate. The judge referenced the CCA decisions in Hines v R and McGovern aka Lanesbury v R, which confirm that the Crown bears responsibility for the accuracy of material tendered at sentence. The error here, placing an offence carrying life imprisonment on a form 1, was one that should never have occurred.

The CCA had allowed the Crown appeal, quashed the original sentence, and remitted the matter. On re-sentence, the offender pleaded guilty to count 7 as a discrete count on the indictment, resolving the procedural defect. The judge adopted substantially all of his original remarks on sentence, with necessary adjustments to the indicative sentence on count 6 and the addition of a discrete indicative sentence for count 7.

Both counts 6 and 7 were assessed as falling in the mid-range of objective seriousness. The judge took into account the victim's young age (five years old, half the applicable threshold), the aggravating features of the offending occurring in the offender's home and involving a breach of trust, the impact of COVID-19 restrictions on the offender's custodial conditions, and the limited 5% plea discount applicable to count 7 under the statutory framework.

Orders Made

  • Count 6: indicative sentence of 5 years (reflecting a reduction from the original indicative sentence, given count 7 was now dealt with separately), with an indicative non-parole period of 3 years and 6 months.
  • Count 7: indicative sentence of 4 years and 10 months (after the 5% plea discount), with an indicative non-parole period of 3 years and 4 months.
  • Aggregate sentence of 13 years, commencing 10 April 2019 and expiring 9 April 2032.
  • Non-parole period of 9 years and 2 months, with the offender eligible for parole on 9 June 2028.

Key Takeaways

  • An offence carrying a maximum penalty of life imprisonment cannot lawfully be placed on a form 1 under the NSW sentencing framework. Doing so causes the sentencing proceedings to miscarry.
  • The Crown bears responsibility for ensuring the accuracy of material, including form 1 documents, placed before a sentencing court. The District Court drew directly on Hines v R and McGovern aka Lanesbury v R to restate this principle.
  • In this matter, the Crown's own procedural error provided the basis for a successful Crown appeal against the sentence the Crown itself had sought, an outcome the court described as one a non-lawyer might find curious.
  • Where a form 1 matter has inflated an indicative sentence on a principal count, a court re-sentencing after that error must reduce the indicative sentence on the principal count when the previously-form-1 matter is now dealt with as a separate count.
  • Under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the applicable statutory guilty plea discount can be as low as 5% depending on the timing of the plea.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(2)(eb), 21A(2)(k), and 25D(2)(c)

Cases
- Hines v R [2021] NSWCCA 149
- McGovern aka Lanesbury v R [2021] NSWCCA 176
- R v JH [2021] NSWCCA 299