R v JH

1. The Crown relies on two grounds of appeal: Ground 1: The sentence is manifestly inadequate. Ground 2: The sentence proceedings miscarried by the taking into account of an offence carrying a life sentence on a Form 1 to count 6.

Consideration

1. 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. Section 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 provides: (4) A court may not take a further offence into account: … (b) if the offence is an indictable offence that is punishable with imprisonment for life.
3. 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. 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. 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. The Crown submissions helpfully reviewed the three cases to which reference has already been made.
7. 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. 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. 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]: "[68] The erroneous inclusion of an offence carrying life imprisonment on the Form 1 attaching to the first charge creates a complication in re-sentencing the applicant. There is no provision under the Criminal Appeal Act to allow the Court to sentence in relation to the outstanding count under s 66A, that is the offence mistakenly included on the Form 1. The circumstances do not fit within the 'Powers of the Court in Special Cases' provided for in s 7 of the Criminal Appeal Act. It is obviously inappropriate to sentence on the basis that the additional s 66A is taken into account pursuant to ss 32-33 of the Crimes (Sentencing Procedure) Act. That would compound the error made in the Court below and the sentence imposed on appeal would be infected by the same legal error. [69] It is open to the Court to re-sentence on the basis of the facts tendered in the Court below, but not to impose a separate sentence in relation to the count involving digital penetration or to take the matter into account in the ways described by the Chief Justice in Abbas and Ors. Contrary to the respondent's submission, this would not be in breach of the principles described by the High Court in The Queen v De Simoni. It is reasonably common for particular criminal acts that form part of a course of conduct not to be charged individually. The sentencing court may take those uncharged acts into account as indicating that the charged offences were not isolated and in order to understand the context in which the charged offences were committed."
10. 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]: "[73] In the present case, it is not certain what the Director of Public Prosecutions will do with the outstanding charge under s 66A involving the allegation of digital penetration. At the hearing of the appeal, counsel for the respondent indicated that the matter had been raised 'in a pertinent way this morning' (which I take to mean with the Director's office) and that 'the likelihood is that it would proceed.' If the Director exercises his discretion in this way, the applicant would be in a position where he would face a separate sentencing hearing at some stage in the future. It is obviously undesirable that the applicant be subject to sentencing in this Court and then be brought before the District Court on another, closely related, charge."
11. Precisely this concern was raised with counsel for the Crown in this appeal: "HARRISON J: So just to be crystal clear on the other point. In relation to the Form 1 offence you tell this Court that if we were of the view that the sentence should be revisited, it should be on the basis that the respondent will not face prosecution for that offence and that we should not take it into account in our deliberations. Is that a-- NEWTON: No I think the position that I was left with after the break was that any decision on that would ultimately require consultation with the relevant people but there was a prospect that a conviction would be sought. HARRISON J: Even if we proceeded to resentence. NEWTON: No sorry your Honours. I was at cross purposes. … NEWTON: I apologise for that. If it stays here the Crown's submission is as per the written submissions which is that it's taken into account in the sense indicated by Hamill J. So it would mean that your Honours' consideration of count 6 is such that the other incident is relevant as indicating that similar type of conduct had occurred on another occasion so that your Honours wouldn't be assessing that as an isolated incident. It would be an incident that occurred in the context of another similar, although in other ways, dissimilar incident occurred. So that would be basis on which your Honours would consider it on a re-sentence. HARRISON J: I know it's not the same but it's almost like asking us to take it into account on a Form 1 isn't it? NEWTON: Well I think that's all I can say your Honour. I submit it's different because when it's on a Form 1 it's clearly increasing the sentence. HARRISON J: No I understand that. NEWTON: Yes. So it's taking into account. It's depriving the respondent of any leniency that he might otherwise be entitled to or receive as a result of a submission that could otherwise be made that it was an isolated incident apropos this victim."
12. 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. However, in this regard, Davies J raised a further matter of practical significance in the following exchange with the Crown: "DAVIES J: Mr Crown can I just say this that I think it's a bit unfortunate here that the facts in some cases, particularly for count 6, were so sparse that it's difficult for the judge to have any understanding of how the offence occurred and so on and so forth. For count 6, in particular, it's virtually a bare statement of the offence. NEWTON: Yes. I accept that your Honour but I would make this point and I'd make it fairly strongly, the difficulty with these sort of cases when a five year old is interviewed in these interviews is that often the account that's given is in very bare terms and in effect the Crown is in some cases stuck with what's it got to use that colloquialism in terms of the detail that the victim goes into and it's not necessarily the case that it's consistent with simply badly drafted facts. It may well be the case and my friend's obviously familiar with the JIRTS in this particular matter that that's as high as it can be put and in those circumstances it's unfortunate but it's certainly not necessarily poor drafting or something along those lines and sorry that's certainly consistent with my - I've had some look at the JIRTS myself and what's there is consistent with - and these are all part of the, sort of, mix as it were in terms of decisions that are made in terms of what charges are proceeded with. So it can't just be viewed in a vacuum. There's the attitude of the victim. There's the potential strength of the Crown case and these sorts of aspects that come into play."
14. 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: "NEWTON: Obviously ultimately it is a matter for the Court so if the Court formed the view that the offence is simply too serious and that the view is that it's a matter that the Court doesn't feel comfortable dealing with in the way envisaged by Hamill J well then the matter would have to be remitted to the District Court and obviously I say this to my friend in terms of his position that I suppose inherent in that would be that the position would have to be that further instructions would have to be sought because I would expect that if the matter were to be remitted to the District Court then it would be the case that that matter would be proceeded with, that the instructions were obtained on the basis that if the matter were to be finalised by this Court that was the position, but just so my friend's clear it would clearly be a situation where further instructions would be sought and given the seriousness I imagine that if it were to be remitted then there would at least be a strong likelihood that it would be proceeded with."
15. Pertinent for present purposes are the remarks of Hamill J in Paul Campbell v R at [75]: "[75] I am not convinced that remittal is the 'only' course available in the applicant's case, but I am persuaded that it is the most desirable one. It would be possible to proceed to resentence, taking into account the digital penetration offence in the limited way envisaged above at [69]. However the Court proceeds, on the tentative indication provided by the Director through counsel, that the applicant faces the likelihood of again being required to appear for sentence in the District Court. The circumstances are such that there is no course that would guarantee that the matter will be brought to finality with the publication of this Court's judgment. For those reasons, I accept the respondent's submission that it is appropriate to remit the matter to the District Court for sentence."
16. 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. 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. 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. Allow the appeal. 2. Quash the sentence imposed by the District Court on 3 June 2021. 3. Remit the sentencing proceedings to the District Court to be dealt with according to law. 4. Stand the matter into the Sydney District Court Arraignment list at 9.30am on Friday 21 January 2022.
19. 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. DAVIES J: I agree with Harrison J.
21. WRIGHT J: I agree with the orders proposed by Harrison J for the reasons that his Honour has given.

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