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Hawat v R

Hawat v R

Case [2020] NSWCCA 121 11 June 2020

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hawat v R [2020] NSWCCA 121
Hearing dates: 6 May 2020
Decision date: 11 June 2020
Before: R A Hulme J at [1];
Fagan J at [48];
Hidden AJ at [49]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIME – appeals – appeal against sentence – application of R v Henry guideline judgment – guideline not conflated with or used as starting point for assessment of objective seriousness – sequence of matters in judgment not necessarily sequence of judge’s process of reasoning – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 97(1), 114, 115, 192E(1)
Cases Cited: Fedele v R [2015] NSWCCA 286
Grant v R [2014] NSWCCA 67
Kelly v R [2017] NSWCCA 82
Legge v R [2007] NSWCCA 244
McDonald v R [2015] NSWCCA 280
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Tuncbilek v R [2020] NSWCCA 30
Yildiz v R [2020] NSWCCA 69
Category: Principal judgment
Parties: Ahmed Hawat (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Paingakulam (Applicant)
Mr C Curtis (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2017/315622
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 July 2019

Before:

O’Brien AM DCJ

File Number(s):

2017/315622

Judgment

R A HULME J: Mr Ahmed Hawat (the applicant) seeks leave to appeal in respect of a sentence imposed in the District Court at Campbelltown on 19 July 2019 by his Honour Judge O’Brien AM.
In respect of three offences of robbery whilst armed with an offensive weapon[1] his Honour imposed an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years.
1. An offence contrary to s 97(1) of the Crimes Act 1900 (NSW) – maximum penalty 20 years.
Had individual sentences been imposed, his Honour said they would have been 3 years and 9 months for each of the first and second offences and 4 years and 6 months for the third. (There was a reduction of 25% for early pleas of guilty.)
The applicant asked the judge to take into account three additional offences listed on a Form 1 document when assessing the sentence for the third armed robbery. These were:

Robbery whilst armed with an offensive weapon.

Fraud. [2]

Commit an offence described in s 114 of the Crimes Act (namely, being armed with an offensive weapon with intent to commit an indictable offence (robbery whilst armed with an offensive weapon)), having previously been convicted of an indictable offence (namely, robbery whilst armed with a dangerous weapon). [3]
2. An offence contrary to s 192E(1)(b) of the Crimes Act – maximum penalty 10 years.
3. An offence against s 115 of…

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 Hawat v R

Details

AGLC: Hawat v The Queen [2020] NSWCCA 121
Case: [2020] NSWCCA 121
Decision Date: 11 June 2020

CaseChat Overview and Summary

In Hawat v R, the respondent appealed against the sentence imposed by the County Court of Victoria for a series of drug-related offences. The trial judge had sentenced the respondent to imprisonment, and the appeal was lodged on the basis that the sentence was manifestly excessive. The Court of Appeal was tasked with determining whether the sentence was appropriate and whether the trial judge had applied the principles set out in R v Henry correctly. The case centred on the interpretation and application of sentencing principles, particularly the R v Henry judgment, which provides guidance on the severity of sentences for drug-related offences.

The primary legal issue was whether the trial judge had appropriately applied the principles established in R v Henry. The Court of Appeal considered whether the trial judge had correctly identified the objective seriousness of the offences and whether the sentence imposed was commensurate with that seriousness. Another key issue was whether the trial judge had followed a proper sequence of reasoning when applying the principles from R v Henry. The Court also examined whether the trial judge had conflated the guideline with the starting point for assessing objective seriousness, which could potentially lead to an incorrect application of the sentencing principles.

The Court of Appeal found that the trial judge had not conflated the guideline with the starting point for assessing the objective seriousness of the offences. The court reasoned that the sequence of matters in the trial judge’s judgment did not necessarily reflect the sequence of the judge's reasoning process. The trial judge had appropriately considered the principles from R v Henry and had imposed a sentence that was proportionate to the objective seriousness of the offences. The Court of Appeal was satisfied that the trial judge had applied the principles correctly and that the sentence was not manifestly excessive.

The appeal was dismissed. The Court of Appeal upheld the sentence imposed by the County Court of Victoria, confirming that it was an appropriate reflection of the objective seriousness of the drug-related offences.

Orders