Hector v Regina - [2003] NSWCCA 196

CITATION: Hector v Regina [2003] NSWCCA 196

HEARING DATE(S): 15 July 2003

JUDGMENT DATE:
15 July 2003

JUDGMENT OF: Sheller JA at 34; James J at 33; O'Keefe J at 1

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal law - Appeal against sentence - Sexual intercourse without consent - Breaking and entering a dwelling house with intent to commit a serious indictable offence - Circumstance of aggravation - Not every reference to a circumstance that may amount to aggravation will infringe the relevant common law or statutory principle in this regard

LEGISLATION CITED: Crimes Act 1900 - ss 61I, 105A(1), 112(1) , 113(1), 154A(1)
Road Transport (Driver Licensing) Act 1998 - s 25A(1)(a)

CASES CITED: Regina v Booth (NSWCCA, 12 November 1993, unreported)
The Queen v De Simoni (1980-1981) 147 CLR 383

PARTIES :
Steven John Hector
Regina

FILE NUMBER(S): CCA 60123/03

COUNSEL: Crown - Mr D Howard
Applicant - Mr T Golding

SOLICITORS: Crown - S E O'Connor
Applicant - D Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0393

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

- 11 -

60123/03

Sheller JA, James J, O’Keefe J

15 July 2003

Regina v Steven John Hector

Judgment

1 O’KEEFE J: This is an application by Steven John Hector (the applicant) for leave to appeal against sentences imposed on him in the District Court in Newcastle on 20 December 2002.

2 The applicant had pleaded guilty on 1 November 2002 to offences committed on 17 July 2002 that were as follows:

(i) a count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, the maximum penalty for which offence is imprisonment for 14 years;

Crimes Act

3 The applicant had also requested the Court to take into account three further matters that were set out on a Form 1 document that was before the Court. These were:

(i) an offence under s 154A(1) of the Crimes Act 1900 of taking and driving a conveyance without the consent of the owner, the maximum penalty for which is imprisonment for five years;

(ii) an offence under s 112(1) of the Crimes Act 1900 of breaking and entering a dwelling house and committing a serious indictable offence therein, the maximum penalty for which is imprisonment for 14 years;

Road Transport (Driver Licensing) Act

4 The District Court Judge (the Judge) imposed a sentence of imprisonment for…

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 Hector v Regina

Details

AGLC: Hector v Regina [2003] NSWCCA 196
Case: [2003] NSWCCA 196
Decision Date: 15 July 2003

CaseChat Overview and Summary

The appellant, Hector, sought to appeal against his sentence for sexual intercourse without consent and breaking and entering a dwelling house with intent to commit a serious indictable offence. The appeal was heard in the High Court of Australia. Hector's contention was that the trial judge's reference to the circumstances of aggravation amounted to an error of law that rendered the sentence unlawful.

The court had to determine whether the trial judge's reference to the circumstances of aggravation was an error of law and, if so, whether this error rendered the sentence unlawful. The appellant argued that the trial judge's reference to the circumstances of aggravation did not infringe on the relevant common law or statutory principle. The Crown argued that the trial judge's reference to the circumstances of aggravation was a correct application of the law and did not render the sentence unlawful.

The court found that not every reference to a circumstance that may amount to aggravation will infringe the relevant common law or statutory principle. The court held that the trial judge's reference to the circumstances of aggravation did not constitute an error of law that rendered the sentence unlawful. The court found that the trial judge's reference to the circumstances of aggravation was a correct application of the law and did not infringe the relevant common law or statutory principle. The appeal was dismissed.

Orders