Hart v R - [2014] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hart v R [2014] NSWCCA 172
Hearing dates: 15 August 2014
Decision date: 27 August 2014
Before: Gleeson JA at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
(i) leave to appeal is granted;
(ii) the appeal is allowed;
(iii) the sentence imposed in respect of the offence of armed robbery on 10 November 2011 is quashed;
(iv) in lieu thereof, the applicant is sentenced to a non-parole period of 7 years imprisonment commencing on 16 November 2012 and expiring on 15 November 2019 and a balance of term of 3 years imprisonment commencing on 16 November 2019 and expiring on 15 November 2022.
(v) the sentences imposed upon the applicant are otherwise confirmed;
(vi) the applicant will be eligible for parole on 16 November 2019 and his sentence will expire on 15 November 2022.

Catchwords:
CRIMINAL LAW - Appeal - Where evidence of applicant being institutionalised - Where evidence of applicant's difficulties in re-integrating into the community following previous release from custody - Where such evidence was the subject of submissions - Where sentencing judge omitted to refer to that issue on sentence - Error established
CRIMINAL LAW - Where sentencing judge failed to take into account evidence relevant to a finding of special circumstances - Error in exercise of discretion established - Finding of special circumstances made - applicant re-sentenced
Legislation Cited: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Jinnette v R [2012] NSWCCA 217
R v Hart NSWCCA (unreported) 21 June 1996
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 546
R v Simpson [2001] NSWSC 534; (2001) 53 NSWLR 704
R v Tuuta [2014] NSWCCA 40
R v Wasson [2014] NSWCCA 95 at [33]
Category: Principal judgment
Parties: Paul Mark Hart - Applicant
Regina - Respondent/Crown
Representation: Counsel:
Solicitors:
S E O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

File Number(s): 2011/367123 2012/60533 2012/61246
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-10-02 00:00:00

Before:

Maiden SC DCJ

Judgment

GLEESON JA: I agree with Bellew J.

ADAMSON J: I agree with Bellew J.

BELLEW J: On 2 October 2013 Paul Mark Hart ("the applicant") was sentenced by his Honour Judge Maiden SC in the District Court as follows:

Date / Place of offence
Section
Maximum Penalty
Sentence Imposed
1.
8 November 2011 at Teralba
Robbery in company: s. 97(1) of the Crimes Act 1900 ("the Act")
20 years imprisonment
A non-parole period of 4 years and 6 months and a balance of term of 1 year and 6 months.
2.
8 November 2011 at Teralba
Larceny of a motor vehicle: s. 117 of the Act
5 years imprisonment
Fixed term of 2 years imprisonment to date from 16 May 2013
3.
8 November 2011 at Teralba
Destroy property (motor…

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 Hart v R

Details

AGLC: Hart v R [2014] NSWCCA 172
Case: [2014] NSWCCA 172
Decision Date: 27 August 2014

CaseChat Overview and Summary

The case of Hart v R involved an appeal by the applicant against a sentencing decision. The applicant was convicted of a crime and had previously been institutionalised, which was a matter of record. After being released from custody, the applicant faced difficulties in re-integrating into the community. This aspect of the applicant's circumstances was presented to the court and considered during the sentencing process. However, the sentencing judge did not specifically address this evidence in the final sentencing remarks, which led to the grounds for appeal.

The primary legal issue before the court was whether the sentencing judge had failed to properly consider relevant evidence pertaining to the applicant's special circumstances, specifically his institutionalisation and subsequent re-integration difficulties. The court needed to determine if this oversight constituted a significant error in the exercise of the sentencing judge's discretion, and if so, whether this warranted a re-sentencing of the applicant. The court examined the sentencing judge's handling of the evidence and the impact of not considering it on the overall sentence.

In delivering its judgment, the court found that the sentencing judge had indeed omitted to consider the applicant's institutionalisation and re-integration difficulties, which were pertinent to determining special circumstances. This constituted a significant error in the exercise of the sentencing discretion. Given that the evidence was relevant and could have influenced the outcome, the court deemed it necessary to re-sentence the applicant, taking these special circumstances into account. Consequently, the court made a finding of special circumstances and ordered a re-sentencing.

Orders