R v JH [2022] NSWDC 28

District Court New South Wales

Medium Neutral Citation: R v JH [2022] NSWDC 28 Hearing dates: 12 April 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [20]-[22] Catchwords: SENTENCING – Court relies on DPP for assistance and not to be led into error – Although Court has ultimate supervisory role, DPP placed an offence on a form 1 that could not be so placed –filing of the form 1 facilitated a successful ground of appeal to the CCA – matter remitted to the District Court for re-sentence – sexual intercourse with child under 10 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Hines v R [2021] NSWCCA 149 McGovern aka Lanesbury v R [2021] NSWCCA 176 R v JH [2021] NSWCCA 299 Category: Sentence Parties: Regina JH Representation: Counsel: Mr M King (offender)

Solicitors: Mr A Dixon (Crown) Ms A Stinson (offender) File Number(s): 2019/82447; 2019/111762; 2019/111787; 2019/158410; 2019/162368; 2019/355377; 2019/111857 Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of any material capable of identifying either the offender or any victim.

Ex tempore judgment 1. In 2021, I dealt with 99 severity appeals, 30 all grounds appeals, and presided over 18 trials, including two trials as judge-alone. I sentenced 85 individuals. JH was one of those individuals. On the day of sentence (3 June 2021), I was presiding over a trial and delivered an ex tempore judgment. 2. As a sentencing judge, I have the ultimate supervisory role, but I have an expectation that the Court can rely upon counsel to assist. It is the Crown's responsibility to assist by taking care that material provided on sentence is accurate: see Hines v R [2021] NSWCCA 149 at [67] and McGovern aka Lanesbury v R [2021] NSWCCA 176 at [76]-[78]. 3. On count 6, the Crown filed a form 1 and the parties requested that the form 1 matter be taken into account (count 7). The form 1 matter was one of sexual intercourse with a child under ten years with a maximum penalty of life imprisonment and a standard non‑parole period of 15 years. It was impossible for the offence to be placed on a form 1. 4. On 1 July 2021, the Crown filed a notice of appeal alleging: 1. That the sentence imposed on 3 June 2021 was manifestly inadequate. 2. The sentence proceedings miscarried by taking into account an offence carrying life imprisonment on a form 1 to count 6. 1. A non-lawyer may find it curious that the actions of the Crown by filing a form 1, facilitated a successful ground of appeal, which they did: see R v JH [2021] NSWCCA 299. The Court's decision was that the error in placing count 7 on a form 1 caused the sentencing proceedings to miscarry. The Court of Criminal Appeal allowed the Crown appeal, quashed the sentence imposed by me, and remitted the sentence proceedings to the District Court to be dealt with according to law. 2. The proceedings are now before me to be dealt with according to law. 3. The offender has entered a plea of guilty to count 7 on the indictment, alleviating the error identified on appeal. He has been re‑arraigned for the purpose of sentence, and confirmed his pleas to count 2, 4 to 6, and 8 to 13. Count 1 and count 3, are to be taken into account on form 1 documents referable to counts 2 and 4 respectively as they were when the offender was originally sentenced on 3 June 2021.