KJH v. REGINA [2006] NSWCCA 189

New South Wales Court of Criminal Appeal

CITATION: KJH v. REGINA [2006] NSWCCA 189

HEARING DATE(S): Tuesday 30 May 2006

JUDGMENT DATE: 22 June 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 5; Hall J at 6

DECISION: (1) Appeal allowed. (2) The sentenced imposed by the District Court on 27 July 2005 be quashed. (3) That the applicant be re-sentenced on the following basis: (a) on Count 1, he is sentenced to a fixed term of imprisonment of nine months to commence on 16 September 2004 and to expire on 15 June 2005; (b) on Count 2, he is sentenced to a fixed term of imprisonment of three years to commence on 16 September 2004 and to expire on 15 September 2007; (c) on Count 3, he is sentenced to a fixed term of imprisonment of 18 months to commence on 16 September 2005 and to expire on 15 March 2007; (d) on Count 4, he is sentenced to imprisonment for eight years to commence on 16 September 2006 and to expire on 15 September 2014. There will be a non-parole period of four years to expire on 15 September 2010; (e) on Count 5, he is sentenced to a fixed term of imprisonment of two years to commence on 16 September 2006 and to expire on 15 September 2008; (f) on Counts 7 and 8, in each case he is sentenced to fixed terms of imprisonment of two years to commence on 16 September 2007 and to expire on 15 September 2009. (4) The applicant will be eligible for release on parole on 15 September 2010.

CATCHWORDS: Appeal against sentence – not guilty pleas to eight counts of sexual misconduct with his natural daughter contrary to ss.61O(2), 66A and 61M(2) of the Crimes Act 1900 – whether trial judge erred in determining the maximum penalty applicable under s.66A – whether mis-statement by trial judge, subsequently explicitly corrected, indicates that the judge has fallen into error and applied the wrong maximum penalty – a mis-statement in the remarks on sentence, while regrettable, provides no reason to doubt the express statement made by the trial judge as to the maximum penalty he in fact had in mind at the time of determining the sentence – whether sentence was manifestly excessive – not all offences under s.66A involve an abuse of trust – sentence imposed in relation to Count 4 was manifestly excessive – whilst Count 4 was objectively more serious than Count 2, it was not at a level that could be said to warrant a sentence of approximately three times that imposed in respect of Count 2