Hanna v Environment Protection Authority [2019] NSWCCA 299
Hearing dates:
4 November 2019
Date of orders:
20 December 2019
Decision date:
20 December 2019
Before:
Macfarlan JA at [1]; Walton J at [48]; Bellew J at [105]
Decision:
(1) Leave to appeal against sentence granted. (2) Appeal dismissed.
Catchwords:
CRIME – appeal – sentencing – offender agreed to court taking into account three offences of transporting waste to facility that cannot be used as a waste facility when sentencing him for principal offences – statutory Form 1 procedure not utilised – common law principle permitting additional offences admitted by offender to be taken into account in sentencing process – whether common law only authorises an additional offence to be taken into account in respect of a single, identified, charged offence
CRIME – appeal – sentencing – non-parole period – special circumstances – whether sentencing judge erred in not considering matters relied upon in combination – whether hardship to offender’s family may be taken into account – points not taken in court below
CRIME – appeal – whether sentencing miscarried because of incompetence of offender’s counsel – mandatory visa cancellation provisions in Migration Act engaged as a result of sentence – evidence and argument not put before sentencing judge as to mandatory cancellation of visa and its effects on the offender and his family
[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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Hanna v Environment Protection Authority [2019] NSWCCA 299
Case
[2019] NSWCCA 299
Decision Date
CaseChat Overview and Summary
In Hanna v Environment Protection Authority, the respondent sought an appeal against a decision made by the sentencing judge. The appeal centred on the sentencing of the offender, who was found guilty of three offences related to the transportation of waste to a facility that was not authorised to be used as a waste facility. The respondent argued that the sentencing judge did not consider certain factors, including the statutory Form 1 procedure, the common law principle of taking additional offences into account, and the potential impact of mandatory visa cancellation provisions on the offender and his family. The respondent contended that the sentencing process miscarried due to the incompetence of the offender's counsel, as these factors were not presented to the sentencing judge.
The legal issues before the court included whether the common law principle allowing additional offences to be considered in sentencing only applied to a single, identified, charged offence, and whether the sentencing judge erred by not considering certain matters in combination, including the potential hardship to the offender’s family. The court also had to determine if the sentencing process miscarried due to the alleged incompetence of the offender's counsel, and if the mandatory visa cancellation provisions in the Migration Act, which resulted from the sentence, were properly considered. The respondent's points regarding the sentencing judge’s consideration of these factors were not raised during the original sentencing hearing.
The court found that the sentencing judge had considered the relevant factors, including the statutory Form 1 procedure and the common law principle of taking additional offences into account. The court held that the common law principle does permit additional offences admitted by the offender to be considered in the sentencing process. It was determined that the sentencing judge did not err in not considering the points regarding special circumstances and hardship to the offender's family, as these matters were not taken in the original sentencing hearing. The court further concluded that the sentencing process did not miscarry due to the alleged incompetence of the offender's counsel, and that the mandatory visa cancellation provisions were not adequately argued before the sentencing judge. Consequently, the appeal was dismissed.