Hanna v The Queen - [2016] NSWDC 292

District Court

New South Wales

Medium Neutral Citation: Hanna v R [2016] NSWDC 292
Hearing dates: 19 September 2016
Date of orders: 19 September 2016
Decision date: 19 September 2016
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Sentence passed by the Local Court at Waverley on 29 June 2016 in respect of sequence 1 set aside

In lieu thereof, appellant sentenced to imprisonment for four months, commencing on 23 May 2016 and expiring on 22 September 2016

Sentence passed by the Local Court at Waverley on 29 June 2016, in respect of sequence 5 set aside
In lieu thereof, appellant sentenced to imprisonment for 12 months. Non-parole period of four months, commencing on 23 May 2016 and expiring on 22 September 2016. Further period of imprisonment of eight months to expire on 22 May 2017
Catchwords: CRIMINAL LAW – Appeal against severity of sentence – Sentence of 12 months imprisonment with a 7 month non-parole period for 6 offences – (i) possessing implements to drive or enter conveyance; (ii) custody of a knife in a public place (3rd such offence); (iii) 4 offences of possession of unlawfully obtained goods – Appellant’s illicit drug use required rehabilitation – After four months in gaol appellant not able to enter any rehabilitation program – Arrangements made for appellant to enter drug rehabilitation in the community as well as an apprenticeship – Sentences varied – Effective head sentence of 12 months imprisonment with a non-parole period of 4 months
Category: Principal judgment
Parties: Andy Hanna (Appellant)
Director of Public Prosecutions(NSW) (Respondent)
Representation: Solicitor for Legal Aid (NSW) (Appellant)
Solicitor for the Director of Public Prosecutions(NSW) (Respondent)

File Number(s): 2016/158509
Publication restriction: No
Decision under appeal

Court or tribunal:

Waverly Local Court

Jurisdiction:

Criminal

Date of Decision:

29 June 2016

Before:

Barko LCM

File Number(s):

2016/158509

Judgment

HIS HONOUR: This is an appeal against the severity of sentence by Magistrate Barko sitting in the Waverley Local Court on 29 June 2016. The appellant was sentenced for six offences. In essence, the appellant was sentenced to 12 months’ imprisonment commencing on 23 May 2016, the date on which he was taken into custody, with a non‑parole period of seven months. The seven month non‑parole period is to expire on 22 December 2016.
The appellant’s criminal history, whilst it might be thought to be long, contains a large number of relatively minor offences. The offences all appear to be related to a problem that the appellant has with addiction to illicit drugs. The drugs which have been mentioned during the course of this appeal are crystal methylamphetamine, or ice, and cannabis. The appellant was in gaol for eight months between 14 August 2015 and 11 April 2016. The first set of offences in respect of that period of imprisonment, were committed in 2014. The second period of that sentence commenced on 12 January 2016 and represented a sentence of nine months with a non‑parole period of three months. The non‑parole period of three months expired on 11 April…

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 The Queen

Details

AGLC: Hanna v The Queen [2016] NSWDC 292
Case: [2016] NSWDC 292
Decision Date: 19 September 2016

CaseChat Overview and Summary

In Hanna v The Queen, the appellant, Hanna, appealed against the severity of his sentence imposed by the Local Court at Waverley. Hanna was convicted of six offences, including possessing implements to drive or enter a conveyance, custody of a knife in a public place (his third such offence), and four offences of possession of unlawfully obtained goods. The Local Court sentenced Hanna to 12 months imprisonment with a non-parole period of 7 months. The appeal focused on the harshness of the sentence, considering Hanna's need for rehabilitation due to his illicit drug use, and the fact that after serving four months in prison, he was unable to access any rehabilitation programs.

The court had to determine whether the original sentence was manifestly excessive or inappropriate given the circumstances of the case. Key considerations included the nature and circumstances of the offences, the appellant’s criminal history, and the impact of the sentence on his ability to rehabilitate. The court needed to weigh the severity of the offences against the appellant's personal circumstances and the potential benefits of a more rehabilitative approach to sentencing. The appeal hinged on whether a different sentence would be more appropriate in light of these factors.

The court acknowledged that while the offences were serious, the original sentence did not adequately consider the appellant's need for rehabilitation. The appellant had been in custody for four months and was unable to access rehabilitation programs during this time. The court found that a sentence that allowed Hanna to participate in rehabilitation and vocational training in the community was more appropriate. The appeal was allowed, and the sentences were varied. Hanna was sentenced to imprisonment for four months for the first sequence of offences, with a further period of imprisonment of eight months for the second sequence. The non-parole period for the overall sentence was set at four months.

Orders

Orders of the court

Sentence passed by the Local Court at Waverley on 29 June 2016 in respect of sequence 1 set aside

In lieu thereof, appellant sentenced to imprisonment for four months, commencing on 23 May 2016 and expiring on 22 September 2016

Sentence passed by the Local Court at Waverley on 29 June 2016, in respect of sequence 5 set aside

In lieu thereof, appellant sentenced to imprisonment for 12 months. Non-parole period of four months, commencing on 23 May 2016 and expiring on 22 September 2016. Further period of imprisonment of eight months to expire on 22 May 2017

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hanna v R [2016] NSWDC 292
Hearing dates:	19 September 2016
Date of orders:	19 September 2016
Decision date:	19 September 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentence passed by the Local Court at Waverley on 29 June 2016 in respect of sequence 1 set aside In lieu thereof, appellant sentenced to imprisonment for four months, commencing on 23 May 2016 and expiring on 22 September 2016 Sentence passed by the Local Court at Waverley on 29 June 2016, in respect of sequence 5 set aside In lieu thereof, appellant sentenced to imprisonment for 12 months. Non-parole period of four months, commencing on 23 May 2016 and expiring on 22 September 2016. Further period of imprisonment of eight months to expire on 22 May 2017
Catchwords:	CRIMINAL LAW – Appeal against severity of sentence – Sentence of 12 months imprisonment with a 7 month non-parole period for 6 offences – (i) possessing implements to drive or enter conveyance; (ii) custody of a knife in a public place (3rd such offence); (iii) 4 offences of possession of unlawfully obtained goods – Appellant’s illicit drug use required rehabilitation – After four months in gaol appellant not able to enter any rehabilitation program – Arrangements made for appellant to enter drug rehabilitation in the community as well as an apprenticeship – Sentences varied – Effective head sentence of 12 months imprisonment with a non-parole period of 4 months
Category:	Principal judgment
Parties:	Andy Hanna (Appellant) Director of Public Prosecutions(NSW) (Respondent)
Representation:	Solicitor for Legal Aid (NSW) (Appellant) Solicitor for the Director of Public Prosecutions(NSW) (Respondent)
File Number(s):	2016/158509
Publication restriction:	No
Decision under appeal	Court or tribunal: Waverly Local Court Jurisdiction: Criminal Date of Decision: 29 June 2016 Before: Barko LCM File Number(s): 2016/158509