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Hardey v R

Hardey v R

Case [2019] NSWCCA 310 20 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hardey v R [2019] NSWCCA 310
Hearing dates: 15 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Brereton JA at [1]
Bellew J at [2]
Lonergan [68]
Decision:
(1) Leave to appeal against the sentence imposed in the District Court on 5 December 2018 is granted.

(2) The appeal is allowed.

(3) The sentence imposed in the District Court on 5 December 2018 is quashed.
(4) In lieu thereof, the applicant is sentenced to a non-parole period of 2 years imprisonment commencing on 5 July 2018 and expiring on 4 July 2020, with an additional term of one year imprisonment commencing on 5 July 2020 and expiring on 4 July 2021.
Catchwords:
CRIMINAL LAW – Appeal – Sentence – Where sentencing judge imposed sentence partially cumulative on existing sentence – Where special circumstances were found – Structure of sentences such that the applicant would be required to serve 80% of his total sentence before being eligible for parole – Nothing to indicate that the sentencing judge considered the precise impact of the level of accumulation – Error established – Applicant re-sentenced
CRIMINAL LAW – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance in light of the sentence imposed on a co-offender – Clear distinguishing subjective features between the two cases – No unjustified disparity in the respective sentences imposed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure Act) 1999 (NSW)
Cases Cited: CM v R [2013] NSWCCA 341
GP v R [2017] NSWCCA 200
Green v The Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49
Huang v R [2019] NSWCCA 144
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Maglovski v R [2014] NSWCCA 238
McKittrick v R [2014] NSWCCA 128
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v MAK; R v MSK [2006] NSWCCA 381
Category: Principal judgment
Parties: Justin Hardey – Applicant
Regina – Respondent
Representation:
Counsel:
C Wasley – Applicant
C Curtis - Respondent
Solicitors:
Archbold & Co Lawyers – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) - Respondent

File Number(s): 2017/120866-008
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

5 December 2018

Before:

Her Honour Judge Noman SC

Judgment

BRERETON JA: I agree with Bellew J.
BELLEW J:

INTRODUCTION

On 30 November 2018 Justin Hardey (the applicant) pleaded guilty in the District Court of New South Wales to the following offence:

On 22 April 2017, at Minto in the State of New South Wales, did break and enter the single story detached house of Kulwant Chamdel situate at 16 Christie Street, Minto, and then in the said single story detached house did commit a serious indictable offence, to wit, larceny in circumstances of aggravation, to wit, in company with other persons.

That…

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 Hardey v R

Details

AGLC: Hardey v The Queen [2019] NSWCCA 310
Case: [2019] NSWCCA 310
Decision Date: 20 December 2019

CaseChat Overview and Summary

The appeal in Hardey v R involved the applicant, Hardey, challenging the sentence imposed by the sentencing judge. The appeal was heard in the High Court of Australia, which has jurisdiction over such criminal matters. The nature of the dispute was focused on the cumulative effect of the sentence imposed and whether the sentencing judge adequately considered the total impact of the sentence on the applicant's parole eligibility.

The legal issues that the court had to address were whether the sentencing judge erred in imposing a sentence that was partially cumulative on an existing sentence, and whether the applicant had a justifiable sense of grievance due to a perceived disparity in sentencing compared to a co-offender. Specifically, the court examined whether the sentencing judge had properly considered the cumulative effect of the sentences and whether there was any unjustified disparity in the sentences imposed on Hardey and his co-offender.

The court found that the sentencing judge had indeed erred in imposing a sentence that was partially cumulative, as there was no indication that the precise impact of the level of accumulation was considered. This error was significant because it resulted in the applicant needing to serve 80% of his total sentence before becoming eligible for parole. Additionally, the court found that there was no unjustified disparity in the sentences imposed, as there were clear distinguishing subjective features between Hardey's case and that of his co-offender. The court emphasised the parity principle in sentencing, which aims to ensure that similar offenders receive similar sentences, but also allows for individualised sentencing where circumstances warrant.

Consequently, the High Court allowed the appeal, quashed the sentence imposed, and remitted the matter to the sentencing judge for re-sentencing. The court highlighted the importance of ensuring that the sentencing process adequately considers the cumulative effect of sentences and that any perceived disparities are justified by clear and distinct differences in the circumstances of the offenders.

Orders