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. FACTS OF COUNTS 6 AND 7, AGREED FACTS 1. DB was born on 8 July 2013 and aged approximately five at the time of offending. Between November 2017 and August 2018, DB would regularly have sleepovers at the offender's house. On some occasions, TB would also sleep over at the offender's house. During these sleepovers, the offender would sleep on the same bed as DB. On one evening, the offender placed his penis into DB's anus and had penile‑anal intercourse with SB (count 6). On another occasion, the offender inserted his penis into the mouth of DB (count 7). OBJECTIVE SERIOUSNESS 1. On 3 June 2021, I said of count 6 that it had a higher maximum penalty than count 2, namely, life. The victim was five and the offender was 27. The offender had inserted his penis into the victim's anus. The form 1 involved putting his penis in the mouth of the victim on a separate occasion. It increased the penalty that would otherwise have been imposed on count 6. The victim was five, that is half of the applicable threshold of ten years. It occurred in the offender's home, which is an aggravating factor: s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999. The offender breached his position of trust: s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. The offending is in the mid‑range of objective seriousness. 2. On count 6, I imposed an indicative sentence, taking into account a form 1 of 5 years and 6 months, with an indicative non‑parole period of 3 years and 10 months. 3. It is incumbent upon me to impose a sentence for count 7. In so doing, there must be a decrease in the indicative sentence on count 6, because I found that the form 1 (now count 7) increased the penalty that would otherwise have been imposed on count 6. 4. I adopt my remarks on sentence of 3 June 2021, save for the indicative sentence imposed on count 6. 5. In assessing the objective seriousness of count 7, I take into account the nature of the sexual intercourse (penis in mouth). The age of the victim. The victim was five. The age difference between the victim and the offender. The victim was five and the offender was born on 9 April 1991, and was above the age of 26. The duration of the contact. There is nothing to indicate that the duration was nothing but short. There was no coercion, but there was a breach of trust, and it occurred in the offender's home. They are aggravating features. 6. The offending is in the mid‑range of objective seriousness. VALUE OF THE PLEA 1. It is agreed between the parties that the applicable statutory discount for count 7 is 5%, pursuant to s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999. COVID‑19 1. Tendered on behalf of the offender was his affidavit dated 24 November 2021 which sets out his circumstances in prison, and his remorse for his actions. The COVID adjustments have limited many activities, including his access to programs. However, he has enrolled in a metal fabrication course and works in the industry section making furniture. He is in protection which limits activities and programs. He is seeing a psychologist. 2. The impact and restrictions of COVID-19 in the prison environment are multifaceted. Both appellant and courts of first instance in New South Wales have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including: 1. the suspension of social and family visits; 2. restrictions to movement and subsequent isolation of inmates; 3. negative impacts on wellbeing, including stress and anxiety; 4. the greater risk of infection to inmates. 1. Furthermore, Courts across the different jurisdictions of the Commonwealth have further recognised additional hardships, including: 1. The adverse impacts of lockdown measures may weigh more heavily on first time inmates; 2. work opportunities during the pandemic, when available at all, are limited. SENTENCE 1. I repeat and adopt my sentencing remarks on 3 June 2021, save for the indicative sentence on count 6. Those remarks are incorporated into these remarks. I announce the following indicative sentences. 2. Count 6: 5 years, but for the 5% discount, the sentence would have been 5 years and 4 months with appropriate rounding down, with an indicative non‑parole period of 3 years and 6 months. 3. Count 7: 4 years and 10 months, but for the 5% discount, the sentence would have been 5 years and 1 month with rounding down, with an indicative non-parole period of three years and four months. 4. I impose an aggregate sentence of 13 years, commencing on 10 April 2019 which will expire on 9 April 2032. I impose a non-parole period of 9 years and 2 months, which will mean that JH will be eligible for parole on 9 June 2028. ********** Amendments 16 June 2022 - Names of solicitors amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2022