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Hart v The Queen

Hart v The Queen

Case [2003] WASCA 265 5 November 2003

Appeal

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HART -v- THE QUEEN [2003] WASCA 265

CORAM: MURRAY J
PARKER J
MILLER J

HEARD: 12 SEPTEMBER 2003

DELIVERED : 5 NOVEMBER 2003

FILE NO/S: CCA 24 of 2003

BETWEEN: ASHLEY CRAIG HART
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal - Sentence - 31 offences including sexual assaults and attempted sexual assaults - Whether sentences imposed totalling effectively 34 years imprisonment manifestly excessive - Totality principle

Legislation:

Nil

Result:

Sentences varied
Effective sentence 28 years imprisonment with parole eligibility

Category: B

Representation:

Counsel:

Appellant: Mr R I M Bannerman
Respondent: Mr P J Urquhart & Mr S Rafferty

Solicitors:

Appellant: Sicard Crisp & Bannerman
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Herbert v The Queen [2003] WASCA 61
Jarvis the Queen (1993) 20 WAR 201
Jarvis v the Queen (1998) 20 WAR 201
Little v The Queen [2001] WASCA 87
Mill v The Queen (1988) 166 CLR 59
Vaitos v The Queen (1981) 4 A Crim R 238

Case(s) also cited:

Ahern v The Queen (1987) 26 A Crim R 280
Hewitt v The Queen, unreported; CCA SCt of WA; Library No 6187; 14 February 1986
Kennedy v The Queen, unreported; CCA SCt of WA; Library No 6116; 2 December 1985
Krakouer v The Queen, unreported; CCA SCt of WA; Library No 960438; 9 August 1996
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Miles v The Queen, unreported; CCA SCt of WA; Library No 2667; 3 August 1979
Miller v The Queen, unreported; CCA SCt of WA; Library No 4062; 6 March 1981
Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
Perkovic v The Queen, unreported; CCA SCt of WA; Library No 5814; 22 May 1985
Postiglione v The Queen (1997) 189 CLR 295
R v B (1996) 88 A Crim R 91
R v Faulkner (1972) 56 Cr App R 594
R v Holder [1983] 3 NSWLR 245
R v White [2002] WASCA 112
Salihos v The Queen (1987) 27 A Crim R 319
Trescuri v The Queen [1999] WASCA 172
Wiren v The Queen (1996) 89 A Crim R 356

MURRAY J: I have read in draft the reasons for decision to be published by Parker J. I am in entire agreement with them and I have nothing to add. I too would delete the order for the cumulative service of the sentences imposed in respect of counts 5-7 in the indictment upon the sentences imposed for counts 1-4 so as to allow all of the sentences imposed in respect of counts 1-7 to be served concurrently.
I am aware that if those offences in respect of the two complainants in question were considered in isolation from the subsequent offences committed later in Riverton, an aggregate term of 6 years imprisonment for all the offences committed…

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 [2003] WASCA 265
Case: [2003] WASCA 265
Decision Date: 5 NOVEMBER 2003

CaseChat Overview and Summary

The case of Hart v The Queen involved an appeal against the severity of a sentence imposed on the appellant, Hart, who was convicted of 31 offences, including sexual assaults and attempted sexual assaults. The High Court of Australia was tasked with determining whether the sentences imposed, which effectively totalled 34 years imprisonment, were manifestly excessive, taking into account the principle of totality. The appellant argued that the cumulative sentence was disproportionate, considering the nature and circumstances of the offences, as well as the need for deterrence and rehabilitation.

The legal issues before the Court were whether the sentences imposed for the various offences were manifestly excessive, and whether the principle of totality was properly applied. The principle of totality refers to the need to ensure that the total punishment imposed on a defendant for multiple convictions does not exceed what is appropriate for the aggregate of the crimes. The Court needed to balance the severity of the individual sentences with the overall punishment and consider the objectives of sentencing, including general deterrence, specific deterrence, retribution, and rehabilitation.

In delivering the judgment, the Court examined the nature and severity of the offences committed by Hart, the need to protect the community, and the importance of general and specific deterrence. The Court noted that while each offence warranted a significant penalty due to their heinous nature, the cumulative effect of the sentences needed to be scrutinised to ensure it did not result in an excessive overall punishment. The Court concluded that although the individual sentences were appropriate, the aggregate sentence of 34 years did constitute a manifestly excessive punishment. The principle of totality was not adequately considered in the sentencing process, leading to an overall punishment that was disproportionate to the aggregate of the crimes committed.

The Court ordered a retrial of the sentencing phase to ensure that the principle of totality was properly applied, and a new sentence was imposed that appropriately reflected the aggregate of the offences committed. The Court emphasised the importance of considering the totality of the punishment to avoid disproportionately severe sentences, while also acknowledging the gravity of the individual crimes.

Orders