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Hanley v The Queen

Hanley v The Queen

Case [2018] NSWCCA 262 26 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hanley v R [2018] NSWCCA 262
Hearing dates: 10 September 2018
Date of orders: 26 November 2018
Decision date: 26 November 2018
Before: Basten JA at [1];
McCallum J at [2];
Bellew J at [8]
Decision:
1.   Leave to appeal granted.

2.   Appeal against sentence allowed.

3.   Set aside the aggregate sentence imposed upon the applicant in the District Court.

4.   In lieu thereof impose an aggregate sentence of 4 years imprisonment commencing on 12 May 2017 and expiring on 11 May 2021, with a non-parole period of 2 years, commencing on 12 May 2017 and expiring on 11 May 2019.

5. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) indicate to the applicant, and record, that an aggregate sentence is imposed and that:

(a)   the sentence that would have been imposed in respect of count 2 is 1 year and 6 months imprisonment, with a non-parole period of 9 months imprisonment;

(b)   the sentence that would have been imposed in respect of count 5 is 2 years and 8 months imprisonment, with a non-parole period of 1 year and 4 months imprisonment;

(c)   the sentence that would have been imposed in respect of the count in the ex-officio indictment is 3 years and 4 months imprisonment, with a non-parole period of 1 year and 8 months imprisonment.
6.   The earliest date on which the applicant is eligible for release on parole is 11 May 2019.
Catchwords: CRIMINAL LAW – appeal – sentence – offences of drug supply – principle that trafficking in illicit drugs requires a gaol sentence absent exceptional circumstances –principle accepted at the time of sentence but since abandoned –– error established – serious offending – strong subjective case characterised by significant efforts towards rehabilitation before and after entering custody – applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Dayment v R [2018] NSWCCA 132
Parente v R [2017] NSWCCA 284
R v Clark (Court of Criminal Appeal NSW, 15 March 1990, unreported)
Robertson v R [2017] NSWCCA 205
Category: Principal judgment
Parties: Joshua Lee Hanley – Applicant
Regina – Respondent
Representation:
Counsel:
P Boulten SC – Applicant
B Hatfield – Respondent
Solicitors:
Anthony Ziade – Applicant
C Hyland, Solicitor for Public Prosecutions NSW – Respondent

File Number(s): 2014/262604
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 May 2017

Before:

Judge McLennan SC DCJ

File Number(s):

2014/262604

Judgment

BASTEN JA: I agree with Bellew J.
McCALLUM J: I agree with Bellew J. I wish only to add the following additional remarks concerning the sentence to be imposed.
The sentencing judge acknowledged the strength of the applicant’s subjective case. In assessing the significance of those considerations, his Honour posed for himself the following questions:

“Does this combination of strong subjective circumstances amount to sufficient justification to result in a non-custodial sentence?…

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 Hanley v The Queen

Details

AGLC: Hanley v The Queen [2018] NSWCCA 262
Case: [2018] NSWCCA 262
Decision Date: 26 November 2018

CaseChat Overview and Summary

In the matter of Hanley v The Queen, the High Court of Australia considered the applicant's appeal against his sentence for drug supply offences. The applicant had been sentenced to imprisonment, but he challenged the appropriateness of the sentence, citing changes in legal principles since the time of sentencing. The Court was tasked with determining whether the sentencing error required a re-sentencing hearing. The central legal issue was whether the principle that drug trafficking necessitates a prison sentence, unless exceptional circumstances apply, should be applied to the applicant's case. This principle was accepted at the time of the applicant's sentencing but has since been abandoned.

The Court found that the principle requiring a prison sentence for drug trafficking, absent exceptional circumstances, was no longer applicable. The Court recognised that the applicant's offending was serious but noted that there was a strong subjective case for re-sentencing. The Court considered the applicant's significant efforts towards rehabilitation both before and after entering custody. The Court concluded that the sentencing error warranted a re-sentencing hearing to reflect the current legal framework and the applicant's rehabilitation efforts. The Court determined that the appropriate sentence should take into account the totality of the circumstances, including the nature of the offending and the applicant's rehabilitation.

The Court ordered that the applicant be re-sentenced, with the sentencing judge to consider the current legal principles and the applicant's rehabilitation efforts. The Court emphasised that the re-sentencing should be conducted with a fresh mind, ensuring that the sentence reflects the current legal standards and the applicant's efforts towards rehabilitation. The Court's decision underscored the importance of applying the correct legal principles at the time of sentencing and the need to consider an offender's rehabilitation efforts in determining an appropriate sentence.

Orders