Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 Hearing dates: 9 March 2023 Date of orders: 12 April 2023 Decision date: 12 April 2023 Before: Beech-Jones CJ at CL at [1] Garling J at [76] Yehia J at [77] Decision: (1) Appeal allowed; (2) Set aside the sentence imposed on the respondent on 14 October 2022; (3) In lieu thereof: (a) Sentence the respondent to an aggregate term of imprisonment of 12 years commencing on 14 May 2020 and expiring on 13 May 2032; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 8 years expiring on 13 May 2028; (c) Specify that the earliest date the respondent will be eligible to be released on parole is 14 May 2028; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 6 years and 11 months imprisonment with a non-parole period of 4 years and 7 months for the offence of sexual intercourse with a child under the age of 10, being count 1 on the indictment and which is accompanied by an offence on a Form 1; (ii) 6 years and 4 months imprisonment with a non-parole period of 4 years and 3 months for the offence of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, being count 2 on the indictment and which is accompanied by an offence on a Form 1; (iii) 7 years and 10 months imprisonment with a non-parole period of 5 years and 2 months for the offence of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, being count 3 on the indictment and which is accompanied by an offence on a Form 1; (iv) 18 months imprisonment for the offence of aggravated intentionally carry out a sexual act with a child above the age of 10 years and under the age of 16 years in circumstances of aggravation, being count 4 on the indictment. Catchwords: CRIME – appeals – Crown appeal against sentence – manifest inadequacy – four sexual offences against stepson over a period of four years – Form 1 offences – where complainant aged between 7 or 8 and 12 years – indicative sentences for counts 1−3 far below the proper range of sentences for such offending – aggregate sentence did not reflect total criminality involved – inadequacy of aggregate sentence and seriousness of offending so marked that the Court must intervene and resentence – appeal allowed – sentence imposed set aside – resentence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 Aryal v R [2021] NSWCCA 2 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bhatia v R [2023] NSWCCA 12 R v Brown [2012] NSWCCA 199 CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 DBW v R [2007] NSWCCA 236 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Facer (a pseudonym) v The Queen (2019) 279 A Crim R 156; [2019] NSWCCA 180 Gibbons (a pseudonym) v R [2019] NSWCCA 150 Grange v R [2023] NSWCCA 6 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 Lee v R [2020] NSWCCA 244 LN v R [2020] NSWCCA 131 Merkel v R [2019] NSWCCA 212 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v DN [2023] NSWCCA 39 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 Ragg v R [2022] NSWCCA 150 RH v R [2019] NSWCCA 64 Sharma v R [2022] NSWCCA 190 Singh v R [2021] NSWCCA 96 TO v The Queen (2017) 265 A Crim R 191; [2017] NSWCCA 12 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Applicant) TH (Respondent) Representation: Counsel: Ms M Kumar (Applicant) Mr P Krisenthal (Respondent)