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Hanna v R

Hanna v R

Case [2015] NSWCCA 326 18 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hanna v R [2015] NSWCCA 326
Hearing dates: 2 December 2015
Decision date: 18 December 2015
Before: Leeming JA at [1]
Johnson J at [2]
R A Hulme J at [126]
Decision:
1. The tender of the additional evidence relied upon by the Applicant in support of Ground 2 is rejected.
2. Leave to appeal is granted.
3. The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentencing – Applicant pleaded guilty to a number of drug supply offences and sentenced to aggregate term of imprisonment for five years with a non-parole period of three years – Applicant suffers from significant physical disabilities and depression – whether sentencing Judge failed to sufficiently take into account Applicant’s physical disabilities or depression – open to sentencing Judge to take into account Applicant’s physical and mental conditions in the way that he did – whether sentencing process miscarried as a result of an incorrect understanding of the extent and future physical effects of the Applicant’s physical condition at time of sentence – additional evidence sought to be admitted on appeal – whether miscarriage of justice occasioned by absence of additional evidence at first instance – tender of additional evidence rejected – whether sentence manifestly excessive – sentence not unreasonable or plainly unjust – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Achurch v R (No. 2) [2013] NSWCCA 117; 84 NSWLR 328
Achurch v The Queen [2014] HCA 10; 253 CLR 141
Bland v R [2014] NSWCCA 82; 241 A Crim R 51
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Grant v R [2014] NSWCCA 67
Inglesias v R [2006] NSWCCA 261
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
R v CBK [2002] NSWCCA 457; 135 A Crim R 260
R v GWM [2012] NSWCCA 240
Turkmani v R [2014] NSWCCA 186
Category: Principal judgment
Parties: Raymond Hanna (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr MC Ramage QC (Applicant)
Mr H Baker (Respondent)
Solicitors:
Malouf Criminal Lawyers (Respondent)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/300041
Decision under appeal

Court or tribunal:

Sydney District Court

Date of Decision:

21 March 2014

Before:

King SC DCJ

File Number(s):

2012/300041

Judgment

LEEMING JA: I agree with Johnson J.
JOHNSON J: The Applicant, Raymond Hanna, seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed by his Honour Judge King SC in the Sydney District Court on 21 March 2014 for drug supply offences.

Offences and Sentences

An aggregate sentence of imprisonment was imposed comprising a non-parole period of three years commencing on 21 March 2014 and expiring on 20 March 2017,…

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 Hanna v R

Details

AGLC: Hanna v The Queen [2015] NSWCCA 326
Case: [2015] NSWCCA 326
Decision Date: 18 December 2015

CaseChat Overview and Summary

The Applicant in this case pleaded guilty to a series of drug supply offences and was sentenced to an aggregate term of imprisonment for five years with a non-parole period of three years. The Applicant suffers from significant physical disabilities and depression, which he claimed were not adequately considered by the sentencing Judge. The appeal against the sentence was heard in the court, which was tasked with determining whether the sentencing Judge had failed to sufficiently account for the Applicant's physical disabilities or depression, and whether the sentence was manifestly excessive.

The court examined the legal issues surrounding the adequacy of the consideration of the Applicant's physical and mental conditions by the sentencing Judge, and whether the sentencing process had miscarried due to an incorrect understanding of the extent and future physical effects of the Applicant's condition at the time of sentencing. The court also considered whether the absence of additional evidence at first instance had occasioned a miscarriage of justice, and whether the tender of such additional evidence should have been accepted on appeal. Ultimately, the court found that the sentence was not unreasonable or plainly unjust.

The court concluded that the sentencing Judge had not failed to sufficiently take into account the Applicant's physical disabilities or depression, and that it was open to the sentencing Judge to take into account the Applicant's physical and mental conditions in the way that he did. The court also found that the sentencing process had not miscarried as a result of an incorrect understanding of the extent and future physical effects of the Applicant's condition, and that the absence of additional evidence at first instance had not occasioned a miscarriage of justice. The appeal was dismissed, and the sentence upheld as not manifestly excessive.

Orders