Hartley v R [2020] NSWCCA 330

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hartley v R [2020] NSWCCA 330 Hearing dates: 3 December 2020 Date of orders: 11 December 2020 Decision date: 11 December 2020 Before: Simpson AJA at [1] Bellew J at [45] Campbell J at [46] Decision: 1. Leave to appeal against sentence granted. 2. Appeal allowed, sentence set aside. 3. The applicant be sentenced to imprisonment made up of a non-parole period of 2 years commencing on 24 April 2018 and expiring on 23 April 2020, with a balance of term of 1 year which will expire on 23 April 2021. Catchwords: CRIME — Appeals — Appeal against sentence – applicant sentenced in relation to one count of assault with act of indecency on a person aged under 16 years – s 61M(2) Crimes Act – whether sentencing judge erred in finding that offence was "slightly below the middle of the range" of objective seriousness – whether sentencing judge erred in finding that the applicant had an "abnormal sexual disorder which has not abated" – previous sexual offence 29 years earlier – no sexual offending since – where no medical evidence adduced in relation to sexual disorder – whether sentence manifestly excessive – leave to appeal against sentence granted, applicant resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), Pt 4 Div 1A Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mulato v R [2006] NSWCCA 282 Category: Principal judgment Parties: David James Hartley (Applicant) Regina (Respondent) Representation: Counsel: J Paingakulam (Applicant) E Wilkins SC (Crown)