Hamilton v R - [2016] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hamilton v R [2016] NSWCCA 59
Hearing dates: 20 April 2016
Decision date: 20 April 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Schmidt J at [3]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is upheld.
(3)   The sentence is quashed.
(4)   The appellant is resentenced to a total term of 34 months imprisonment commencing on 21 October 2014, with a non parole period of 18 months expiring on 20 April 2016 and a balance of term of 16 months expiring on 20 August 2017.
(5) Under s 50(1) of the Crimes (Sentencing Procedure) Act the applicant be released on parole at the expiry of the non-parole period on 20 April 2016.
(6)   The applicant’s parole be supervised and that he comply with all reasonable directions of the Department of Corrective Services relating to his ongoing treatment and counselling for substance abuse.

Catchwords: CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in not backdating or otherwise taking into account applicant’s pre-trial custody – whether sentence imposed in respect of the s 112(2) offence resulted in miscarriage of justice – appeal upheld – sentence quashed – resentenced
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193
Kaminic v R [2014] NSWCCA 116
Kentwell v R (2014) 252 CLR 601
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Markarian v R [2005] HCA 25; (2006) 228 CLR 357
R v Birks (1990) 19 NSWLR 677
R v Newman & Simpson [2005] NSWCCA 102; (2004) 145 A Crim R 361
Category: Principal judgment
Parties: Barry Keith Hamilton (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms K Shead and Ms B Baker (Applicant)
Mr H Baker (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/125475
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

06 February 2015

Before:

Lerve DCJ

File Number(s):

2014/125475

EX TEMPORE Judgment

HOEBEN CJ at CL: I agree with Schmidt J.
HARRISON J: I agree with Schmidt J.
SCHMIDT J: In February 2015 Lerve DCJ sentenced Barry Hamilton, then aged 20 years, for an offence under s 112(2) of the Crimes Act1900 (NSW), of aggravated break, enter and commit serious indictable offence whilst in company, which he had committed in April 2014. The offence involved smashing a window to enter a house at Coonamble, where $700 was stolen. The maximum penalty for the offence was 20 years imprisonment, with a standard non-parole period of 5 years. He was sentenced to a non-parole period of 18 months commencing from the date of sentence, due to expire on 5 August 2016, with a further term of 16 months, due to expire on 5 December 2017.
The applicant seeks leave…

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 Hamilton v R

Details

AGLC: Hamilton v R [2016] NSWCCA 59
Case: [2016] NSWCCA 59
Decision Date: 20 April 2016

CaseChat Overview and Summary

The applicant, Hamilton, appealed against his sentence for an offence under section 112(2) of the Crimes Act, contending that the sentencing judge erred in not backdating or otherwise taking into account his pre-trial custody. Hamilton was also sentenced for other offences but these were not the subject of the appeal. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge had erred in not taking into account the applicant’s pre-trial custody when imposing the sentence. The court also considered whether the sentence imposed in respect of the section 112(2) offence resulted in a miscarriage of justice.

The court held that the sentencing judge had erred in not taking into account the applicant's pre-trial custody. The High Court held that the sentencing judge should have taken into account the pre-trial custody in determining the appropriate sentence for the offence under section 112(2). The court found that the error was not trivial and affected the fairness of the sentence. The court also found that the sentence imposed for the section 112(2) offence resulted in a miscarriage of justice because it was manifestly excessive and did not reflect the proper discount for the pre-trial custody. The appeal was upheld, the sentence was quashed, and the case was remitted for resentencing. The court did not provide specific details on the resentencing but noted that the new sentence should properly reflect the pre-trial custody.

Orders