Halloway v The Queen - [2020] NSWCCA 292

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Halloway v R [2020] NSWCCA 292
Hearing dates: 28 October 2020
Date of orders: 30 November 2020
Decision date: 30 November 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Ierace J at [55]
Decision:
(1)   Grant leave to appeal against sentence.
(2)   Allow the appeal.
(3)   Quash the sentence imposed upon the applicant by her Honour Judge O’Rourke SC on 16 December 2019 and in lieu thereof sentence the applicant to an aggregate sentence of 6 years commencing 16 October 2018 with a non-parole period of 4 years expiring on 15 October 2022.
(4)    Refer the applicant to the Drug Court for assessment as the subject of a compulsory drug treatment order.

Catchwords:
APPEAL – sentence appeal – aggravated break and enter – larceny – take and drive conveyance – assault occasioning actual bodily harm – resentence – where conclusions of sentencing judge generally agreed with – where different assessment of subjective case – where applicant labouring under drug addiction and mental illness – referral to Drug Court for assessment

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
BP v R [2010] NSWCCA 159
Cohen v R [2011] NSWCCA 165
Dickinson v R [2016] NSWCCA 301
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Category: Principal judgment
Parties: Michael Halloway (Applicant)
Crown (Respondent)
Representation:
Counsel:
M Crawford-Fish (Applicant)
G Newton (Respondent)
Solicitors:
Andrew Harris & Associates (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/113486 & 2019/15564
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 December 2019

Before:

O’Rourke SC DCJ

File Number(s):

2018/113486 and 2019/15564

Judgment

HOEBEN CJ at CL: I agree with Harrison J.
HARRISON J: On 4 July 2019, Michael Halloway was found guilty following a trial of four offences: aggravated break enter and commit serious indictable offence (larceny) contrary to s 112(2) of the Crimes Act 1900, take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act, and two counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Mr Halloway pleaded guilty in the Local Court on 25 July 2019 to a separate aggravated break and enter contrary to s 112(2)(b) of the Crimes Act with an offence of threatening to use an offensive weapon contrary to s 33B(1)(a) of the Crimes Act taken into account on a Form 1.
Her Honour Judge O’Rourke SC sentenced Mr Halloway on 16 December 2019 to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months, backdated to commence on 16 October 2018. Mr Halloway’s non-parole period expires on 15 February 2024.
The applicable maximum penalties and the sentence, including indicative sentences, are summarised as follows:

No.

Offence

Section/Act

Max Penalty

SNPP

Plea

Indicative…

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 Halloway v The Queen

Details

AGLC: Halloway v The Queen [2020] NSWCCA 292
Case: [2020] NSWCCA 292
Decision Date: 30 November 2020

CaseChat Overview and Summary

In the case of Halloway v The Queen, the appellant, Halloway, appealed against his sentence for a series of offences, including aggravated break and enter, larceny, taking and driving away a conveyance, and assault occasioning actual bodily harm. The appeal was heard by the High Court of Australia. The appellant contended that his sentence was excessive and that the sentencing judge failed to adequately take into account his drug addiction and mental illness. The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the appellant's mitigating circumstances.

The High Court reviewed the sentencing principles and the evidence presented in the case. The court acknowledged that the sentencing judge had considered many of the appellant's mitigating factors, such as his drug addiction and mental illness, and that these factors were relevant in determining the appropriate sentence. However, the court found that the sentencing judge did not adequately weigh the severity of the crimes and the need to protect the community from further offending. The court held that the sentence was not manifestly excessive, but that the appellant's specific circumstances warranted a re-sentencing hearing. The court found that the appellant's drug addiction and mental illness were significant factors that should have been given more weight in the sentencing process.

The High Court ordered that the case be remitted to the original sentencing court for re-sentencing, with specific directions to consider the appellant's drug addiction and mental illness in more detail. The court emphasised the importance of ensuring that all relevant mitigating factors are adequately considered in the sentencing process. The court also noted that the appellant's case could be referred to the Drug Court for further assessment and potential treatment options. This decision highlights the importance of considering an offender's individual circumstances, including any mental health or addiction issues, when determining an appropriate sentence.

Orders