Hayward v The Queen - [2000] WASCA 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HAYWARD -v- THE QUEEN [2000] WASCA 237

CORAM: IPP J
WALLWORK J
PARKER J

HEARD: 3 AUGUST 2000

DELIVERED : 3 AUGUST 2000

FILE NO/S: CCA 108 of 2000

BETWEEN: DANIEL TROY HAYWARD
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentence appeal - Aggravated burglary of commercial premises - Whether sentence of 2-1/2 years' imprisonment is manifestly excessive in the circumstances - Turns on own facts

Legislation:

Criminal Code Amendment (No 2) Act 1996

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Mr E Balodis

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Lowndes v The Queen (1998) 195 CLR 665
Veen v The Queen (No. 2) (1988) 164 CLR 465
Wroblewski v R, unreported; CCA SCt of WA; Library 990135; 17 February 1999

Case(s) also cited:

Bates v Wheatley [2000] WASCA 38
Jarvis v R (1993) 20 WAR 201
Little v R, unreported; CCA SCt of WA; Library No 970041; 3 February 1997
R v Thompson, unreported; CCA SCt of WA; Library No 940311; 21 June 1994

IPP J: This is an application for leave to appeal against sentence. On 12 April 2000, the applicant was convicted on his own plea of guilty to one count of aggravated burglary committed on 27 August 1998. When he was so sentenced, the applicant was in prison serving a sentence of 18 months' imprisonment imposed on 9 February 2000 for counts involving stealing a motor vehicle and driving dangerously and refusing a breath test in breach of a community‑based order. On 28 April 2000, the applicant was sentenced in regard to the charge of aggravated burglary.
The learned sentencing Judge was informed that the applicant, who had been declared eligible for parole for the sentences imposed on 9 February 2000, was due for release on 7 February 2001, subject to him indeed being granted parole. His Honour imposed a sentence of 2‑1/2 years' imprisonment on the applicant and ordered that that term of imprisonment be served cumulatively upon the term of 18 months' imprisonment imposed on 9 February 2000.
The sole ground of appeal asserts that the sentence of 2‑1/2 years' imprisonment was manifestly excessive.
The facts relating to the offence are relatively straightforward. At about 12.23 am on 27 August 1998, the applicant, in company with his cousin and another, smashed a large glass panel window at the side of the front lounge bar of the Lakers Tavern, Thornlie. They did this to gain entry to the tavern. The alarm system was activated. The applicant and the co‑offender entered the premises and stole 11 bottles of spirits valued at $330 from the bar. The police arrived and saw the applicant running from the tavern carrying the bottles. He was heard shouting to his cousin, who was driving a motor vehicle parked nearby, to "Go, go, go". As the…

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 Hayward v The Queen

Details

AGLC: Hayward v The Queen [2000] WASCA 237
Case: [2000] WASCA 237
Decision Date: 3 AUGUST 2000

CaseChat Overview and Summary

The case of Hayward v The Queen was heard in the High Court of Australia, where the respondent, the Crown, appealed against the sentence imposed on the appellant for aggravated burglary of commercial premises. The appellant was convicted of unlawfully entering a commercial property with intent to commit an indictable offence and was sentenced to 2-1/2 years' imprisonment. The Crown argued that the sentence was manifestly excessive, while the appellant maintained that the sentence was appropriate given the circumstances.

The legal issues before the court were primarily concerned with the principles and considerations applicable when reviewing a sentence for excessiveness. The court needed to determine whether the sentence imposed was manifestly excessive, taking into account the totality of the circumstances, including the nature and seriousness of the offence, the offender's culpability, and any relevant mitigating or aggravating factors. The court also considered the sentencing principles and guidelines established by previous case law, particularly the principle that a sentence should be proportionate to the gravity of the offence and the offender's culpability.

The court found that the sentence of 2-1/2 years' imprisonment was not manifestly excessive. It held that the appellant's culpability was not particularly high, as he had no prior criminal record and had shown remorse. The court also noted that the offence, while serious, was not of the highest degree of culpability, as the appellant had not caused any physical harm or significant loss to the victims. The court emphasised that each case must be considered on its own facts and that the sentence imposed was appropriate in light of the totality of the circumstances. The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed and that the original sentence of 2-1/2 years' imprisonment be upheld. The court did not impose any additional sentence or alter the terms of the appellant's imprisonment.

Orders