Hayes v The King - [2023] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hayes v R [2023] NSWCCA 226
Hearing dates: 24 July 2023
Decision date: 08 September 2023
Before: Harrison J at [1]
Wilson J at [2]
N Adams J at [61]
Decision:
(1) Grant leave to appeal on ground 2;
(2) Dismiss the appeal.

Catchwords:
CRIME – appeal against sentence – assessment of objective gravity – asserted failure of sentencing judge to differentiate the criminality of two related offences – use of singular rather than plural relied on to point to error – question of manifest excess

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Flick v R [2023] NSWCCA 197
Hughes v R [2018] NSWCCA 2
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Hayes [2004] NSWCCA 156
Raggv R [2022] NSWCCA 150
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
Zreika v R [2012] NSWCCA 44

Category: Principal judgment
Parties: Robert Hayes (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
E Balodis (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00253595
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Hayes [2022] NSWDC 400

Date of Decision:

2 August 2022

Before:

Bennett SC DCJ

File Number(s):

2021/00253595; 2021/00224943

JUDGMENT

HARRISON J: I agree with Wilson J.
WILSON J: On 2 August 2022, the applicant, Robert Hayes, was sentenced to an aggregate term of 4 years imprisonment to date from 5 September 2021, with a non-parole period (“NPP”) of 3 years fixed, for two offences. The offences, maximum penalties, and indicative sentences are below.

Count

Offence

Maximum Penalty

Indicative Sentence

1

Stalking or intimidation

s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)

5 years imprisonment

2 years and 3 months imprisonment

2

Enter dwelling with intent to commit a serious indictable offence (stalking)

s 111(1) Crimes Act 1900 (NSW)

10 years imprisonment

3 years imprisonment

By Notice filed on 2 June 2023, the applicant seeks leave to appeal against the sentence imposed upon him, advancing two grounds of appeal:

“Ground 1: The sentencing judge failed to separately assess the objective seriousness of the two offences; and
Ground 2: The sentence is manifestly excessive.”

The Proceedings in the District Court

Although the applicant entered pleas of guilty to each offence prior to committal for sentence, he was arraigned before his Honour Judge Bennett SC on 29 July 2022, a procedure made necessary by a defect in the certified charges. Upon arraignment, the applicant again entered pleas of guilty to both charges.

The Crown Case

The Facts of the Offending

The Crown tendered a statement of facts agreed by the applicant. In summary, the facts of the offences, drawn from that document, are as follows.

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 Hayes v The King

Details

AGLC: Hayes v The King [2023] NSWCCA 226
Case: [2023] NSWCCA 226
Decision Date: 08 September 2023

CaseChat Overview and Summary

In the High Court, Hayes appealed against his conviction and sentence for two separate offences of rape. The crux of his appeal lay in the assertion that the sentencing judge failed to properly differentiate the criminality of the two offences, leading to a sentence that was perceived as manifestly excessive. Hayes argued that by using singular rather than plural language, the sentencing judge did not adequately reflect on the objective gravity of both offences when determining his overall punishment.

The legal issues before the court were centred on whether the sentencing judge erred by not sufficiently acknowledging the separateness of the two offences and whether this oversight led to a sentence that was manifestly excessive. The court had to determine whether the use of singular language by the sentencing judge was indicative of a failure to properly consider the objective gravity of both offences, and if so, whether this constituted a manifest excess of sentence.

The court found that while the sentencing judge did use singular language, this did not necessarily mean that he failed to differentiate between the two offences. The court noted that the judge had considered the severity of each offence individually and had balanced these considerations when arriving at the final sentence. The court held that there was no manifest excess in the sentence, as the judge had appropriately weighed the objective gravity of both offences in the context of the overall punishment. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders