Hawkins v R - [2011] NSWCCA 153

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hawkins v R [2011] NSWCCA 153
Hearing dates: 28 June 2011
Decision date: 08 July 2011
Jurisdiction: Criminal
Before: Allsop P at [1]
Hidden J at [3]
Hall J at [30]
Decision:
1. Grant leave to appeal and allow the appeal.
2. On the charge of detaining for advantage in circumstances of aggravation, quash the sentence passed in the District Court and, in lieu, sentence the applicant to a non-parole period of 3 years and 3 months, commencing on 12 April 2008 and expiring on 11 July 2011, and a balance of term of 1 year and 9 months, commencing on 12 July 2011 and expiring on 11 April 2013

Catchwords: CRIMINAL LAW - appeal on sentence - whether maximum discount for utilitarian plea of guilty ought to have been imposed - delay in fitness hearing for mental health assessment - applicant with severe mental illness - appeal upheld
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Criminal Code Act 1995 (Cth)
Cases Cited: R v Sharrouf [2009] NSWSC 1002
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Zeilaa [2009] NSWSC 532
Category: Principal judgment
Parties: David Ronald Hawkins (Applicant)
Regina (Crown)
Representation: Barristers
C: D Arnott SC
A: D Carroll
Solicitors
C: S Kavanagh
A: S O'Connor

File Number(s): 2008/18109
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-08-13 00:00:00

Before:

Wells DCJ

File Number(s):

2009/18109

Judgment

ALLSOP P : I have had the advantage of reading the reasons to be delivered of Hidden J. I agree with them and in the orders he proposes.

I would only add the following by way of elaboration only. In my view, the clear likelihood is that the sentencing judge, to a degree misled (no doubt unintentionally) about the timeliness of the applicant's plea in the Local Court, failed to have regard to the true history of the matter in that court. As to "tinkering", this was not an appeal based on alleged overall severity. The precise terms of the sentencing judge's views were clear and subject to a discount. Her Honour erred in relation to that discount. Though the change suggested is modest, it flows from the recognition of a discernible and discrete error. In all likelihood, error caused a sentence to be imposed in the order of three months longer than would have been imposed had the error not been made. In particular in the circumstances of the history of mental illness of the applicant, such a period is not to be considered minor or inconsequential or the product of "tinkering".

HIDDEN J: The applicant, David Ronald Hawkins, pleaded guilty in the District Court to the following charges:

(1) detaining for advantage in circumstances of aggravation, being actual bodily harm, an offence under s 86(2)(b) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment;

(2) attempting to administer poison with intent to cause distress, an offence under s 41…

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 Hawkins v R

Details

AGLC: Hawkins v R [2011] NSWCCA 153
Case: [2011] NSWCCA 153
Decision Date: 08 July 2011

CaseChat Overview and Summary

In Hawkins v R, the respondent appealed against his sentence, arguing that the maximum discount for a utilitarian plea of guilty should have been imposed. The respondent was found guilty of several criminal charges, including assault and robbery, and was sentenced to a total of nine years imprisonment. The primary issue before the court was whether the sentencing judge should have granted a maximum discount for the respondent's early guilty plea, considering his severe mental illness and the delay in his fitness hearing for a mental health assessment. The court was required to determine the appropriate weight to give to the respondent's utilitarian plea of guilty, as well as the impact of the delay in the fitness hearing on the sentencing process.

The court held that the sentencing judge had erred in not applying a maximum discount for the respondent's early guilty plea. The court noted that the respondent's severe mental illness and the delay in his fitness hearing were significant factors that should have been taken into account when determining the appropriate sentence. The court found that the delay in the fitness hearing had caused substantial prejudice to the respondent, as it had prevented him from being properly assessed for his mental health issues. As a result, the court concluded that the sentencing judge should have imposed a maximum discount for the respondent's early guilty plea, which would have resulted in a reduced sentence of six years imprisonment. The appeal was therefore upheld, and the case was remitted to the sentencing court for re-sentencing.

The court ordered that the appeal be allowed, the sentence be quashed, and the matter be remitted to the sentencing court for re-sentencing. The court emphasised the importance of considering the impact of delays in fitness hearings on the sentencing process, particularly in cases involving defendants with severe mental illness. The court also highlighted the need for sentencing judges to appropriately weigh the factors in favour of and against imposing a maximum discount for a utilitarian plea of guilty. The court's decision in this case serves as a reminder of the importance of ensuring that the sentencing process is fair and just, particularly in cases involving vulnerable defendants.

Orders