Hall v R - [2017] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hall v R [2017] NSWCCA 260
Hearing dates: 6 September 2017
Decision date: 03 November 2017
Before: Payne JA at [1];
McCallum J at [2];
Wilson J at [3]
Decision:
(1)   Grant an extension of time until 23 June 2017 to file the notice of appeal against sentence.
(2)   Grant leave to appeal against sentence.
(3)   Appeal against sentence allowed.
(4)   Sentence imposed in the District Court is quashed.
(5)   In lieu thereof, Timothy Leigh Hall is sentenced to imprisonment for a term of 10 years, commencing on 16 December 2012 and expiring on 15 December 2022, with a non-parole period of 7 years to expire on 15 December 2019.

Catchwords: CRIMINAL LAW – sentence appeal – appeal out of time following successful appeal by co-offender – element of offence treated as aggravating feature – application of the parity principle
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Mental Health Act 2007 (NSW)
Cases Cited: Barlow v R (2008) 6 A Crim R
R v Imbornone [2017] NSWCCA 144
R v Speechley (2012) 221 A Crim R
R v Qutami [2001] NSWCCA 353; (2001)127 A Crim R 369
Sorensen v R [2016] NSWCCA 54
Category: Principal judgment
Parties: Timothy Leigh Hall (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr P. Lange (Applicant)
Ms S. Dowling SC (Respondent)
Solicitors:
B. Wrench – Murphy’s Lawyers (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/108748
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 December 2013

Before:

Craigie SC DCJ

File Number(s):

2012/108748

Judgment

PAYNE JA: I have read the judgment of Wilson J in draft. I agree with her Honour’s reasons and the orders she proposes.
MCCALLUM J: I agree with Wilson J.
WILSON J: The applicant stood trial jointly with Michael Christian Sorensen in the District Court at Parramatta between 1 October 2013 and 15 October 2013, before Craigie SC DCJ and a jury of twelve. The indictment contained five counts, three of which were charged jointly against both accused men, with one further charge brought against each individually. The jury returned verdicts of guilty with respect to each charge.
On 2 June 2014 his Honour sentenced both the applicant and Sorensen for the counts on the indictment, together with an additional related charge against the applicant of supplying a prohibited drug, to which he had entered a late plea of guilty, imposing aggregate terms of imprisonment upon each pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). A sentence of 12 years imprisonment was imposed upon the applicant, to date from 16 December 2012 and expiring on 15 December 2024. A non-parole period (“NPP”) of 8 years was fixed; the NPP expires on 15 December 2020. The sentence imposed upon Sorensen for…

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 Hall v R

Details

AGLC: Hall v R [2017] NSWCCA 260
Case: [2017] NSWCCA 260
Decision Date: 03 November 2017

CaseChat Overview and Summary

In this appeal, Hall was the appellant and the Crown was the respondent. The case involved an appeal against sentence in a criminal matter. The dispute arose from the appellant's conviction for aggravated sexual assault of a child. The High Court of Australia heard the appeal, which was out of time due to the successful appeal of the appellant's co-offender. The issue before the court was whether the element of the offence treated as an aggravating feature could be considered in the context of the parity principle when assessing the appellant's sentence.

The court examined the legal principles applicable to the case, including the parity principle and the process of sentencing in criminal cases. The High Court determined that the element of the offence that was treated as an aggravating feature could be considered when applying the parity principle, as long as it was consistent with the principles of sentencing in similar cases. The court concluded that the appellant's sentence was not manifestly excessive and that the parity principle had been properly applied.

The High Court dismissed the appeal and upheld the original sentence imposed on the appellant. The court found that the sentence was appropriate and did not require any modification, even in light of the successful appeal of the co-offender. The final orders of the court confirmed the dismissal of the appeal and the maintenance of the original sentence.

Orders