TH v R [2019] NSWCCA 184

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TH v R [2019] NSWCCA 184 Hearing dates: 17 July 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Before: Leeming JA at [1] Davies J at [2] Hidden AJ at [54] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of aggravated indecent assault of a child under the age of 16 years – applicant the paternal grandfather of the complainant – complainant stayed over at the applicant's home and slept in his bed – applicant pulled down the complainant's pants while pressed against her – sentencing judge found that the applicant had an erection and had ejaculated during the commission of the indecent assault – applicant asserted that he had an incontinence problem and had unwillingly urinated on the complainant – issue relevant to measure of objective seriousness of offending - whether the sentencing judge's finding of fact was consistent with the jury's verdict – where the veracity of the applicant's alleged incontinence was cast into doubt by the evidence – the sentencing judge's finding was the only rational inference from the facts – finding made beyond reasonable doubt – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) s 61M Cases Cited: AB v R [2014] NSWCCA 339 Aoun v R [2011] NSWCCA 284 Cheung v R (2001) 209 CLR 1; [2001] HCA 67 Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 Hordern v R [2019] NSWCCA 138 Peters v R [2013] NSWCCA 324 R v O'Donoghue (1988) 34 A Crim R 397 Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220 Texts Cited: Nil Category: Principal judgment Parties: TH (Applicant) Crown (Respondent) Representation: Counsel: F Coyne (Applicant) C Gleeson (Respondent)