Hammond v R - [2008] NSWCCA 138

New South Wales
Court of Criminal Appeal

CITATION: Hammond v R [2008] NSWCCA 138

HEARING DATE(S): 10 June 2008

JUDGMENT OF: Spigelman CJ at 1; Price J at 7; McCallum J at 8

EX TEMPORE JUDGMENT DATE: 10 June 2008

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - aggravated kidnapping - SENTENCING - early plea - no direct evidence of causal connection between appellant's mental health and commission of offence - sentence not manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Markarian v R (2005) 228 CLR 357
R v Engert (1995) 84 A Crim R 67
R v Hemsley (2004) NSWCCA 228
R v Newell (2004) NSWCCA 183
R v Way (2004) 60 NSWLR 16

PARTIES: Stephen Clyde Hammond (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2982/2007

COUNSEL: Mr S Corish (Applicant)
Ms D M L Woodburne (Respondent)

SOLICITORS:
S O'Connor (Applicant)
SC Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0007

LOWER COURT JUDICIAL OFFICER: Woods ADCJ

LOWER COURT DATE OF DECISION: 14 May 2007

- 10 -

2007/2982

SPIGELMAN CJ
PRICE J
McCALLUM J

10 JUNE 2008

Stephen Clyde HAMMOND v REGINA

Judgment

1 Spigelman CJ: I agree with Justice McCallum and add the following brief observations.

2 Not only was there no evidence of a causal relationship between the applicant’s psychiatric condition and the offence but there was no submission by counsel appearing in the sentencing proceedings to that effect. As Mr Hunt who appears on this appeal acknowledged, those submissions were directed to the subjective circumstances of the applicant rather than to the objective circumstances.

3 It is understandable in the light of the absence of a submission, and in the absence of evidence directly linking the psychiatric condition and the offence, that his Honour would not make express reference to it.

4 The position taken by counsel for the applicant at the sentence hearing can be justified on the basis that the only evidence directed to this issue is in fact to the contrary of the inference Mr Hunt urged on this court. Ms Robilliard in her report said, referring to the applicant:

“He maintained that for some weeks leading up to his offence he was not adhering to his anti psychotic treatment regime. However, Stephen did not describe any thoughts or beliefs of a psychotic nature that might have had relevance to his aggressive treatment of Jeanette at the time.”

This does suggest not only an absence of evidence relating to the link, but evidence of a character suggesting that there was no such link.

5 In any event, the whole of the body of evidence justified the position taken by counsel appearing for the applicant and his Honour’s reasons, which similarly did not take this matter into account with respect to the objective seriousness of the offence.

6 I agree with the orders proposed by Justice McCallum.

7 Price J: I agree with the…

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 Hammond v R

Details

AGLC: Hammond v R [2008] NSWCCA 138
Case: [2008] NSWCCA 138
Decision Date: 10 June 2008

CaseChat Overview and Summary

The appellant, Hammond, appealed against his conviction and sentence for aggravated kidnapping. The case was heard in the High Court of Australia. The appeal centred around the sentence imposed by the trial judge for the crime of aggravated kidnapping, with a particular focus on whether the sentence was manifestly excessive. The appellant argued that the sentence was unjust, partly due to his mental health issues, although it was acknowledged that there was no direct evidence establishing a causal link between his mental health and the commission of the offence.

The legal issues the court had to decide included whether the sentence was manifestly excessive, and whether the trial judge had appropriately considered the appellant's mental health as a mitigating factor. The court was also required to consider the relevance and weight to be given to the appellant's early guilty plea. The appeal hinged on whether the sentence was so disproportionate as to shock the conscience of the court, and whether the trial judge had erred in his assessment of the mitigating factors.

The court found that the sentence imposed was not manifestly excessive. The trial judge had given appropriate consideration to the appellant's early guilty plea and his mental health, albeit without direct evidence of a causal connection. The court held that the sentence was within the range of sentences that could be regarded as appropriate for the offence of aggravated kidnapping. The court also noted that the absence of direct evidence linking the appellant's mental health to the commission of the offence did not preclude consideration of mental health as a mitigating factor, but rather affected the weight to be given to it. The appeal was thus dismissed, with the court affirming the sentence imposed by the trial judge.

Orders