CRIMINAL LAW - sentence appeal - aggravated break enter and steal - no error in not obtaining pre-sentence report - whether double counting by taking Form 1 offences into account - no error in taking possession of safebreaking instrument on Form 1 into account - whether full-time custody manifestly excessive - whether sentence manifestly excessive
Counsel: W Dawe QC (applicant) J Girdham (respondent) Solicitors: City Legal Solicitors (applicant) Solicitor for Public Prosecution (applicant)
File Number(s):
2011/89403
Publication restriction:
Nil
Decision under appeal
Date of Decision:
2012-03-01 00:00:00
Before:
Keleman DCJ
File Number(s):
2011/89403
Judgment
Hoeben JA: I agree with Button J and the orders which he proposes. I particularly endorse his Honour's remarks in respect of Grounds 1 and 4. Grounds of Appeal expressed in terms of a sentencing judge "having insufficient regard to" some aspect of evidence, face a threshold difficulty in that they concede that some regard or weight was given to the evidence. This inevitably results in a direct challenge to the sentencing discretion of the judge.
Johnson J: I agree with Button J.
Button J: On 1 March 2012 in the District Court at Parramatta, his Honour Judge Keleman SC sentenced Anthony Hanania ("the applicant") for one count of aggravated break enter and steal. The circumstance of aggravation was that the offence was committed in company. The maximum penalty for the offence, pursuant to s 112(2) of the Crimes Act1900, was imprisonment for 20 years. A standard non-parole period of imprisonment for 5 years attached to the offence.
At the same time, a co-offender was dealt with for an identical offence. In light of the fact that the applicant has notified no ground of appeal founded on disparity, or any other ground that relates to the co-offender, I will not discuss the sentencing of the co-offender further in this judgment.
In sentencing for the primary offence, his Honour took into account two offences on a Form 1. Because they found a ground of appeal, I will describe them in more detail than would usually be necessary.
The first offence was possession of a safebreaking implement without lawful excuse. Pursuant to s 114(1)(b) of the Crimes Act, that offence carries a maximum term of imprisonment for 7 years. According to a Court Attendance Notice, the implement that founded that offence was an angle grinder. The second offence on the Form 1 was intentionally or recklessly damaging property. Pursuant to…
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.
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Details
AGLC
Hanania v R [2012] NSWCCA 220
Case
[2012] NSWCCA 220
Decision Date
CaseChat Overview and Summary
Hanania v The Queen involved the appellant, Hanania, who appealed against his sentence for aggravated break enter and steal. The case was heard in the High Court of Australia. Hanania argued that the primary judge erred by not obtaining a pre-sentence report, that there was double counting by taking into account offences listed on Form 1, that there was an error in taking possession of a safebreaking instrument on Form 1 into account, and that the sentence of full-time custody was manifestly excessive.
The legal issues before the court included whether the trial judge erred in not obtaining a pre-sentence report, whether there was double counting by considering Form 1 offences, whether there was an error in taking into account possession of a safebreaking instrument, and whether the sentence imposed was manifestly excessive. The court considered whether these issues constituted errors that warranted an appeal against the sentence.
The High Court found that the trial judge did not err in not obtaining a pre-sentence report, as the judge had sufficient information to properly sentence the appellant. The court also determined that there was no double counting by considering Form 1 offences, as the trial judge had discretion to take into account all relevant factors. Additionally, the court held that it was not an error to consider possession of a safebreaking instrument on Form 1, as it was a relevant factor in the sentencing decision. Finally, the court found that the sentence was not manifestly excessive, as it was within the appropriate range for the offence committed. Consequently, the appeal against the sentence was dismissed.