R v JH

1. [1]

   HARRISON J: The Director of Public Prosecutions appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on JH by his Honour Judge Grant in the District Court on 3 June 2021. JH was sentenced in relation to ten principal offences and three Form 1 offences of child sexual assault and sexual misconduct committed against nine male victims under the age of 10 years. JH was aged 17 at the time of counts 1 and 2 and 25 or older at the time of the remaining offences.

2. [2]

   The sentencing judge imposed an aggregate sentence after discounts of 11 years imprisonment with a non-parole period of 7 years and 8 months. His Honour allowed a discount of 5% for JH’s late pleas of guilty to counts 1 to 11 inclusive and a discount of 25% for his early plea to counts 12 and 13. The sentence commenced on 10 April 2019 and expires on 9 April 2030. The non-parole period expires on 9 December 2026.

3. [3]

   His Honour’s assessment of the objective seriousness of each count and the respective indicative sentences are as follows:

4. [4]

   The Crown relies on two grounds of appeal:

Consideration

1. [5]

   In my opinion, this matter should be remitted to the District Court of New South Wales in order that JH be re-sentenced according to law. My reasons for coming to that view are as follows.

2. [6]

   Section 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 provides:

3. [7]

   Count 7 was an offence of sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act. This count carries a maximum penalty of life imprisonment. It charges that JH inserted his penis into the mouth of the victim DB. Count 7 was placed on a Form 1 with count 6 which charged that JH had penile-anal intercourse with the same victim on a separate occasion. Count 7 was erroneously included on a Form 1 as the result of an offer made to JH that ultimately resulted in his pleas of guilty. The error was not detected by the parties or the sentencing judge at any stage in the sentencing proceedings.

4. [8]

   This Court has held that the placing of an offence carrying life imprisonment on a Form 1 is an error that means that the whole of the sentencing process miscarried: R v Issa [2002] NSWCCA 206 at [45]-[46]; Paul Campbell v R [2018] NSWCCA 87 at [65]-[66]; Clappison v R [2017] NSWCCA 33. That issue is not controversial in these proceedings.

5. [9]

   The Crown submitted that, this error having been established, this Court must determine how it should be corrected or addressed. The alternatives, for presently relevant purposes, are either remitting the matter to the District Court or re-sentencing JH in this Court.

6. [10]

   The Crown submissions helpfully reviewed the three cases to which reference has already been made.

7. [11]

   In R v Issa, in which a life imprisonment offence was taken into account on a Form 1, the Court concluded that the appropriate course was for the matter to be remitted to the District Court pursuant to s 12(2) of the Criminal Appeal Act 1912. The Court observed that the question of whether or not the appellant would be indicted on the Form 1 count would be a matter for the Director of Public Prosecutions.

8. [12]

   In Clappison v R, this Court held that remitting the matter to the District Court was “the only course available in the circumstances of [the] appeal”. The Court allowed the appeal, quashed the sentence and remitted the matter for sentence to the District Court. In that case, the Form 1 error only became apparent after the hearing of the appeal. The Court noted that it would be a matter for the Director of Public Prosecutions to determine whether a fresh indictment containing the Form 1 offence would be issued, or whether some different procedure would be adopted.

9. [13]

   A not dissimilar situation arose in Paul Campbell v R. The matter was also remitted to the District Court for sentence. However, in the course of arriving at that result Hamill J, with whom the other members of the Court agreed, said this at [68] – [69]:

10. [14]

    In that particular case, the Director of Public Prosecutions had indicated that it was likely that a conviction would be pursued on the Form 1 charge. Hamill J said this at [73]:

11. [15]

    Precisely this concern was raised with counsel for the Crown in this appeal:

12. [16]

    The Crown’s written submission had been that count 7 should be regarded as an uncharged act that this Court should take into account so as to indicate that the charged offence on count 6, of sexual intercourse with a child under 10, was not isolated and in order to understand the context in which the other offences were committed.

13. [17]

    However, in this regard, Davies J raised a further matter of practical significance in the following exchange with the Crown:

14. [18]

    JH also urged upon this Court that he should be re-sentenced here. That submission was understandably proffered in light of the Crown’s indication that JH could in all likelihood expect to be indicted on count 7 if the matter were remitted to the District Court as appears from the following:

15. [19]

    Pertinent for present purposes are the remarks of Hamill J in Paul Campbell v R at [75]:

16. [20]

    In the present case, the Crown’s position appears to be quite different. If the matter were to remain in this Court for re-sentence, the Crown has indicated that it would not seek to prosecute JH separately for the offence charged as count 7. The Crown’s position is that all counts, including count 7, would be brought to finality if this Court published a judgment in which JH were re-sentenced.

17. [21]

    However, it does not seem to me either that that is or should be the principal factor in deciding whether or not to remit the matter to the District Court or resentence in this Court. It is obvious that courts are not invested with prosecutorial discretion. Far from being a factor for consideration, there should not in the present case be even the slightest appearance or suggestion that the question of whether JH is or is not to be prosecuted for count 7 has been left to this Court to decide. The original sentencing proceedings miscarried because the charged act constituting count 7 was impermissibly placed on a Form 1. I feel distinctly uncomfortable with the prospect of this Court being called upon, or as being seen, to resentence JH on the basis that the very same facts that constitute count 7 should be treated as an uncharged act, when the Director of Public Prosecutions has already, and specifically, exercised a discretion to charge it as a separate count. It is not appropriate that this Court should in effect be placed in the position of having to decide whether to remit the matter or resentence when that decision is of itself one that might potentially and differentially inform the sentencing outcome.

18. [22]

    The sentencing proceedings miscarried. This Court’s decision should do no more than correct that error. JH should be sentenced afresh in the District Court, to which the matter should be remitted. I propose the following orders:

    1. (1)

       Allow the appeal.

    2. (2)

       Quash the sentence imposed by the District Court on 3 June 2021.

    3. (3)

       Remit the sentencing proceedings to the District Court to be dealt with according to law.

    4. (4)

       Stand the matter into the Sydney District Court Arraignment list at 9.30am on Friday 21 January 2022.

19. [23]

    Although the parties provided this Court with detailed and helpful written and oral submissions on sentence, it is for obvious reasons unnecessary and indeed undesirable to refer to those submissions here.

20. [24]

    DAVIES J: I agree with Harrison J.

21. [25]

    WRIGHT J: I agree with the orders proposed by Harrison J for the reasons that his Honour has given.