Hagen v The Queen - [2009] NSWCCA 268

New South Wales
Court of Criminal Appeal

CITATION: Hagen v R [2009] NSWCCA 268

HEARING DATE(S): 26 October 2009

JUDGMENT DATE:
30 October 2009

JUDGMENT OF: Allsop P at 1; Fullerton J at 1; McCallum J at 1

DECISION: 1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentences imposed on 7 November 2008 and in lieu thereof:
(a) In respect of count 2, impose a fixed term of six months’ to commence on 25 October 2008 and to expire on 24 April 2009.
(b) In respect of count 1, non-parole period to commence on 25 October 2008 for 12 months and with a balance of term of 17 months to expire on 24 March 2011.
(c) Pursuant to s 50 of the Crimes (Sentencing Procedure) Act direct the immediate release of the applicant/appellant on parole.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Mitchell, R v Gallagher [2007] NSWCCA 296
R v Van Rysewyk [2008] NSWCCA 130

PARTIES: Darren Glenn HAGEN (Applicant)
Regina

FILE NUMBER(S): CCA 2007/6151

COUNSEL: W Hunt (Applicant)
V Lydiard (Respondent)

SOLICITORS: Legal Aid Commission
Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/6151

LOWER COURT JUDICIAL OFFICER: Boulten ADCJ

LOWER COURT DATE OF DECISION: 7 November 2008

- 8 -

2007/6151

ALLSOP P
FULLERTON J
McCALLUM J

30 OCTOBER 2009

Darren Glenn HAGEN v R

Judgment

1 THE COURT: The applicant sought leave to appeal against the sentences passed in the District Court after he pleaded guilty to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence contrary to s 112(2) of the Crimes Act 1900 and one count of damaging property by fire contrary to s 195(1)(b) of the Act. On 26 October 2009, the Court granted leave to appeal and allowed the appeal, but reserved its reasons. These are the reasons of the Court for the orders made that day.

2 On Friday 20 April 2007 the applicant turned 21. He had been celebrating that occasion by drinking alcohol for at least two days when the offences were committed. He could not remember the amount of alcohol he had consumed, but described it to a psychologist as “a good bucketful”. He was very intoxicated when the offences were committed.

3 In the early hours of the morning of Sunday 22 April 2007, the applicant and a friend were walking home from a hotel in Wagga Wagga. The applicant’s friend decided that he needed to rest, and lay down in a garden bed at the front of a house. The applicant sat next to him for a while. Then, for reasons he can neither remember nor explain, the applicant walked up the driveway of the house and forced open an access door underneath the house, where he lit a fire with clothing and wood that was under the house. A short time later, he left…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hagen v The Queen

Details

AGLC: Hagen v The Queen [2009] NSWCCA 268
Case: [2009] NSWCCA 268
Decision Date: 30 October 2009

CaseChat Overview and Summary

The Court of Criminal Appeal in New South Wales considered an appeal by Darren Glenn Hagen against the sentences imposed by the District Court. Hagen pleaded guilty to aggravated breaking and entering a dwelling house and committing a serious indictable offence, as well as damaging property by fire. The key legal issues before the Court were whether the sentencing Judge erred in applying the discount for Hagen's guilty plea, in assessing the objective seriousness of the offence, in considering alternatives to full-time detention, and whether the sentence was manifestly excessive. The Crown conceded that the sentencing Judge erred in failing to assess the objective seriousness of the offence, which was a critical error that led the Court to reassess the sentence.

The Court found that the offence was towards the lower end of the range of conduct for the aggravated breaking and entering offence, given the lack of premeditation and deliberation and the absence of malice or criminality. The sentencing Judge's failure to make a specific finding on the objective seriousness of the offence was identified as a material error. Despite the discount for the guilty plea, the overall sentence imposed was deemed manifestly excessive. The Court considered the strong subjective case presented on behalf of Hagen, including his negligible criminal history, responsible employment, and good prospects for the future. The Court concluded that a less severe sentence was warranted and that the Judge should have considered periodic detention as an alternative to full-time imprisonment.

The Court determined that a term of six months imprisonment was appropriate for the damaging property by fire charge and a term of around 29 months for the aggravated breaking and entering charge. Given Hagen had already served 12 months in full-time detention, the Court fixed a non-parole period of 12 months for the balance of the sentence. However, as Hagen had already served this period, the Court directed his immediate release on parole. The Court's final orders included granting leave to appeal, allowing the appeal, quashing the original sentences, and imposing new sentences in their place, along with directing Hagen's release on parole.

Orders