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Hayek v R

Hayek v R

Case [2010] NSWCCA 139 25 June 2010

Appeal

Sentencing

Aggravated & Exemplary Damages

Limitation Periods

Breach of Contract

Criminal Liability

Merits of Application Considered

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: HAYEK, Simon v R [2010] NSWCCA 139

HEARING DATE(S): 31/05/2010

JUDGMENT DATE:
25 June 2010

JUDGMENT OF: Simpson J at 1; Johnson J at 2; McCallum J at 3

DECISION: 1. That the time within which the notice of application for leave to appeal may be filed be extended to 11 February 2010.
2. That leave to appeal against sentence be granted.
3. That the appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – application for leave to appeal against sentence – extension of time for notice of application for leave to appeal – relevant factors on application for extension of time – abject delay by applicant’s legal representatives – extension granted – merits of application considered – leave to appeal granted - CRIMINAL LAW – sentence appeal – aggravated robbery in company – larceny – committed against same victim – constituted part of same incident - victim’s injuries serious – offences committed whilst on bail – whether sentences manifestly excessive –starting point of sentencing range for aggravated robbery in company not outside realm of judge’s sentencing discretion – sentence for larceny offence within proper range - whether sentences should have been accumulated to certain extent or at all – determination of accumulation discretionary circumscribed by requirements of totality principle – appeal dismissed - CRIMINAL LAW – sentence appeal – additional “errors” complained of – failure to articulate findings regarding rehabilitation prospects and level of contrition expressed – contentions unsustainable – no demonstration of additional errors

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Dinsdale (2002) 202 CLR 321
Markarian v Queen [2005] HCA 25; 228 CLR 357
Pearce v R [1998] HCA 57
R v Baker [2000] NSWCCA 85
R v Borkowski [2009] NSWCCA 102
R v Cahyadi (2007) 168 A Crim R 41
R v Carter [2001] NSWCCA 245
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Stewart v R [2009] NSWCCA 152
Vuni v R [2006] NSWCCA 171

PARTIES: Simon Hayek (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/14036005

COUNSEL: J Gordon (Applicant)
J Dwyer (Respondent)

SOLICITORS: Mai Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/000-14036

LOWER COURT JUDICIAL OFFICER: Morgan DJC

LOWER COURT DATE OF DECISION: 29 August 2008

- 12 -

2007/14036

SIMPSON J
JOHNSON J
McCALLUM J

25 JUNE 2010

SIMON HAYEK v R

Judgment

1 SIMPSON J: I agree with McCallum J.

2 JOHNSON J: I agree with McCallum J.

3 McCALLUM J: On 13 February 2008 the applicant, Simon Hayek, was arraigned in the District Court on an indictment that contained one count of aggravated robbery in company, an alternative count of aggravated robbery and one count of larceny. He pleaded guilty to the alternative count 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 Hayek v R

Details

AGLC: R v Hayek [2010] NSWCCA 139
Case: [2010] NSWCCA 139
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appellant, Hayek, sought leave to appeal against his sentence for aggravated robbery and larceny, committed in company against the same victim. The case was heard by the High Court of Australia, which had to decide whether to grant an extension of time for the appellant to lodge his notice of appeal and whether the sentences imposed were manifestly excessive. The court also had to determine whether the sentences should have been accumulated and if there were any additional errors in the sentencing process.

The court found that the application for an extension of time was made despite significant delay by the appellant's legal representatives. However, the court granted the extension and proceeded to consider the merits of the application. The court held that the starting point for sentencing in relation to the aggravated robbery was not outside the realm of the judge's discretion, and the sentence for the larceny offence was within the proper range. The court also found that the decision on whether to accumulate sentences to a certain extent or at all was a discretionary one, circumscribed by the requirements of the totality principle.

The court dismissed the appeal, finding that the sentences were not manifestly excessive and that there were no additional errors in the sentencing process. The court noted that the failure to articulate findings regarding the appellant's rehabilitation prospects and level of contrition did not constitute additional errors, as there was no demonstration that these factors would have made a difference to the outcome.

The High Court of Australia dismissed the appeal and affirmed the sentences imposed by the lower court.

Orders