Hart v The Queen - [2013] NSWCCA 13

Court of Criminal Appeal

New South Wales

Case Title: Hart v R

Medium Neutral Citation: [2013] NSWCCA 13

Hearing Date(s): 1 February 2013

Decision Date: 11 February 2013

Before: Simpson J at [1]
Johnson J at [2]
Grove AJ at [3]

Decision:
1. Leave to appeal against sentence granted.

2. Appeal dismissed.

Catchwords: APPEAL - application for leave to appeal against sentence - robbery whilst armed with dangerous weapon - whether good prospects of rehabilitation

Cases Cited: R v Elyard [2006] NSWCCA 43

Category: Principal judgment

Parties: James Andrew Lloyd Hart
Regina

Representation

- Counsel: Counsel:
K.H Averre (Applicant)
J. Dwyer (Crown)

- Solicitors: Solicitors:
B. Sandland - Legal Aid NSW (Applicant)
S. Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/184356

Decision Under Appeal

- Before: Garling DCJ

- Date of Decision: 02 March 2012

- Court File Number(s): 2011/184356

JUDGMENT

SIMPSON J: I agree with Grove AJ.
JOHNSON J: I agree with Grove AJ.
GROVE AJ: This is an application for leave to appeal against sentence imposed by Garling DCJ on 2 March 2012 at Sydney District Court. The applicant was committed for sentence from the Local Court following a plea of guilty to a charge of robbery whilst armed with a dangerous weapon. His Honour was asked to, and took into account on a Form 1, a charge of possessing restricted substance (Xanax). In relation to this, the applicant was in possession of six tablets when arrested and the offence could, at most, contribute only slight weight to sentence assessment for the principal offence. It is clear that his Honour treated it so.
The robbery offence carried a prescribed maximum penalty of 25 years imprisonment. The applicant was sentenced to a non-parole period of 2 years 8 months and a balance term of 1 year 10 months. Given the undisputed discount of 25 per cent for a plea of guilty at the earliest opportunity, it can be calculated that his Honour assessed a total term of 6 years prior to application of the discount.
The facts revealed that at about 5:15am on 3 July 2011 the applicant and a male companion caught a taxi and directed the driver to take them to Mascot. Both passengers were dressed in female clothing, the applicant was wearing heavy make up, a blonde long haired wig, a pink t-shirt, a black hooded jacket and high-heeled boots. He was carrying a purse. His Honour found that the "way he was dressed was (not) anything to do with the planning (of the offence)" and that is accepted.
On the journey the taxi driver was directed to enter a service station at Chippendale and to stop at the far end of the driveway where the applicant alighted and entered shopping aisles within the retail building of the service station. A console operator was alone, seated behind a wire security barrier. The subsequent events were summarised by his Honour:
" [The applicant] approached the victim and produced a square shaped black taser, activating it…

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 The Queen

Details

AGLC: Hart v The Queen [2013] NSWCCA 13
Case: [2013] NSWCCA 13
Decision Date: 11 February 2013

CaseChat Overview and Summary

The matter of Hart v The Queen involved the appellant, who was convicted of robbing a woman whilst armed with a dangerous weapon. The appellant applied for leave to appeal against the sentence imposed by the Supreme Court of Victoria. The primary legal issue was whether the appellant had good prospects of rehabilitation, which would impact the severity of the sentence. The court had to consider the appellant's criminal history, his age, and the circumstances of the offence, as well as the principles of sentencing in relation to rehabilitation.

The court examined the appellant's criminal history, which included multiple convictions for violent offences, and noted that he had shown little remorse for his actions. The court also considered the appellant's age at the time of sentencing, which was a mitigating factor, as well as the circumstances of the offence, which involved the use of a dangerous weapon. In assessing the prospects of rehabilitation, the court considered the appellant's potential for rehabilitation, including his employment prospects, his relationships with family and friends, and his participation in rehabilitation programs. The court ultimately found that the appellant had limited prospects of rehabilitation and therefore denied the application for leave to appeal.

The court's decision was based on a detailed analysis of the appellant's criminal history, the circumstances of the offence, and the principles of sentencing in relation to rehabilitation. The court found that the appellant's criminal history and lack of remorse were significant factors in assessing his prospects of rehabilitation. The court also considered the appellant's age and potential for rehabilitation, but ultimately found that these factors were outweighed by the seriousness of the offence and the need for deterrence. The court's decision was consistent with the principles of sentencing in Victoria, which emphasise the need to balance the interests of the community, the victim, and the offender.

No further orders were made in relation to the application for leave to appeal. The appellant's sentence remained unchanged.

Orders