L.A.H. v Regina [2005] NSWCCA 400

New South Wales Court of Criminal Appeal

CITATION: L.A.H. v Regina [2005] NSWCCA 400

HEARING DATE(S): 10 November 2005

JUDGMENT DATE: 24 November 2005

JUDGMENT OF: Sully J at 1; Hulme J at 41; Latham J at 51

DECISION: Appeal against conviction allowed; Appellant's conviction upon Count 1 quashed; Sentence passed pursuant to that conviction quashed; Directed verdict of acquittal upon Count 1

Crimes Act 1900 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW)

R v AJG, unreported, NSWCCA 30/10/97 CASES CITED: M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454

L.A.H PARTIES: Regina

FILE NUMBER(S): CCA 2005/1627

G. Rowling - Crown COUNSEL: J. Manuell - Appellant

S. Kavanagh - Crown SOLICITORS: S. O'Connor - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0183

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1627

SULLY J HULME J LATHAM J 24th November 2005 L.A.H v REGINA Judgment SULLY J: NON PUBLICATION ORDER The Court orders that in any report of this judgment or of the proceedings in this Court, the appellant be referred to only as LAH, and the complainant only as K.

Introduction 1 On 25 November 2004 Mr. H (the appellant) was presented in the District Court at Bega and before his Honour Judge McLoughlin SC for trial upon an indictment containing two counts. Count 1 charged that at a particular time and place the appellant had sexual intercourse with one K (the complainant) knowing that she was a person with an intellectual disability and with the intention of taking advantage of her vulnerability on that account for sexual exploitation. Such an offence contravenes section 66F(3) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 8 years. Count 2 was charged in the alternative to Count 1, and charged that the appellant, at the same time and place, had sexual intercourse with the same complainant, she being a close family member, namely his sister; and being above the age of 16 years, namely 57 years. Such an offence contravenes section 78A(1) of the Crimes Act, and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 8 years. 2 The appellant pleaded not guilty to each such charge. He consented to, and accordingly stood trial by, Judge alone. On 28 January 2005 his Honour found the appellant guilty as charged on Count 1. On 5 May 2005 his Honour sentenced the appellant to imprisonment for a non-parole period of 3 years with a balance of term of 2 years. The commencing date of the sentence was set at 27 August 2004. 3 The appellant challenges his conviction and seeks leave to appeal against his sentence. The grounds of the appeal and application, as notified, are: "1. The appellant appeals against his conviction pursuant to Crimes Act 1900 s 66F(3) on the ground that the trial judge erred by misdirecting himself in respect of the contradictions within the complainant's evidence. 2. The conviction was unreasonable and/or it cannot be supported having regard to the evidence. 3. The appellant appeals against his sentence on the ground that the sentencing judge erred in his application of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 4. The sentence was manifestly excessive."