Legal Research
Cases
Hayek v R

Hayek v R

Case [2016] NSWCCA 126 29 June 2016

Sentencing

Manifest Excess

Assessment of Objective Gravity

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hayek v R [2016] NSWCCA 126
Hearing dates: 20 May 2016
Date of orders: 29 June 2016
Decision date: 29 June 2016
Before: Bathurst CJ at [1]
Schmidt J at [2]
Wilson J at [3]
Decision:
1. Leave to appeal is refused.

Catchwords: CRIMINAL LAW – sentence appeal – aggravated break enter and commit serious indictable offence – s 112(2) Crimes Act 1900 (NSW) – question of manifest excess – utility in considering notional “starting point” of sentence – relevance of sentencing statistics to determining manifest excess – other asserted errors raised in support of ground asserting manifest excess – assessment of objective gravity – weight given to subjective case
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1986 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)
Cases Cited: Ali v R [2010] NSWCCA 35
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Piscitelli v R [2013] NSWCCA 8
Pleasance v R [2016] NSWCCA 113
R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
R v Todorovic [2008] NSWCCA 49
SS v R; JC v R [2009] NSWCCA 114
Category: Principal judgment
Parties: Peter Hayek (Applicant)
Director of Public Prosecutions (Respondent Crown)
Representation:
Counsel:
Ms J Paingakulam (Applicant)
Mr N Adams (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/323624
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 February 2015

Before:

Hock DCJ

File Number(s):

2013/323624

Judgment

BATHURST CJ: I agree with Wilson J.
SCHMIDT J: I agree with Wilson J.
WILSON J: On 16 February 2015 the applicant was sentenced in the District Court of New South Wales for an offence of aggravated break, enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW). The serious indictable offence was robbery; the circumstance of aggravation relied upon by the Crown was that there were persons in the premises. The sentence imposed was one of 6 years imprisonment with a non-parole period of 4 years.
The maximum sentence for an offence contrary to s 112(2) is 20 years imprisonment. A standard non-parole period of 5 years is specified by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against that sentence, advancing a single ground of appeal, that the sentence imposed upon him was manifestly excessive.

The Proceedings before the District Court

The applicant entered a plea of guilty to the charge against him when the matter was in the Local Court and he was committed to the District Court for sentence. He adhered to that plea on 12 March 2015 before her Honour Judge Hock in the District…

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 Hayek v R

Details

AGLC: Hayek v R [2016] NSWCCA 126
Case: [2016] NSWCCA 126
Decision Date: 29 June 2016

CaseChat Overview and Summary

The appellant, Hayek, sought to appeal his sentence following his conviction for aggravated break and enter and commit serious indictable offence, contrary to section 112(2) of the Crimes Act 1900 (NSW). The primary issue before the court was whether the sentence imposed was of manifest excess, such that it warranted interference by the appellate court. This involved a consideration of the notional "starting point" for the sentence, as well as the relevance of sentencing statistics in determining whether the sentence was manifestly excessive. Additionally, the court considered other alleged errors in the sentencing process that were raised in support of the ground asserting manifest excess.

The court held that the notion of a "starting point" for the sentence was not a rigid formula but rather a tool to assist in determining whether a sentence was manifestly excessive. In this case, the court found that the sentence imposed was not manifestly excessive. The court also noted that sentencing statistics could be relevant in this assessment, but they were not determinative. The court emphasised the importance of assessing the objective gravity of the crime and the weight given to subjective factors in the sentencing process. Ultimately, the court found that the sentence imposed was not so excessive as to warrant interference by the appellate court.

The appeal was dismissed. The court found that the sentence imposed was within the range of appropriate sentences for the offence committed. The court also noted that the sentence reflected the objective gravity of the offence, as well as the subjective circumstances of the case. The court emphasised the importance of allowing primary judges to exercise their discretion in sentencing, subject to the ultimate oversight of the appellate courts.

Orders