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Heine v R

Heine v R

Case [2008] NSWCCA 61 16 April 2008

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New South Wales
Court of Criminal Appeal

CITATION: HEINE v R [2008] NSWCCA 61

HEARING DATE(S): 18 March 2008

JUDGMENT DATE:
16 April 2008

JUDGMENT OF: Bell JA at 1; Simpson J at 49; Adams J at 50

DECISION: 1. Grant leave to appeal;
2. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - detaining a person with intent to obtain advantage - SENTENCING – appeal against severity of sentence – offender suffering from mental disorder – assessment of impact on moral culpability - use of sentencing statistics – no error demonstrated – sentence not manifestly excessive

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: Makarian v R (2005) 228 CLR 357
R v Allen [2008] NSWCCA 11
R v Bloomfield (1998) 44 NSWLR 734
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Hamid [2006] NSWCCA 302
R v Israil [2002] NSWCCA 255
R v Lee [2003] NSWCCA 391
R v Pearson [2004] NSWCCA 129
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Wright (1997) 93 A Crim R 48

PARTIES: Aung Wyn HEINE (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/00003046

COUNSEL: R Burgess (Appellant)
J Dwyer (Crown)

SOLICITORS: S E O'Connor (Appellant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0313

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

CCA 2007/00003046

BELL JA
SIMPSON J
ADAMS J
Wednesday 16 April 2008

Aung Wyn HEINE v R

Judgment

1 BELL JA: The applicant applies for leave to appeal against the severity of the sentence imposed on him on his conviction for detaining a person with intent to obtain advantage contrary to s 86(1)(b) of the Crimes Act 1900 (NSW). He pleaded guilty to the offence in the Local Court and on 14 June 2007 he appeared before Judge Sweeney in the District Court, who sentenced him to a term of four years’ imprisonment (backdated by one day to take account of a short period of pre-sentence custody) with a non-parole period of two years. The maximum sentence for the offence is 14 years’ imprisonment.

The facts

2 The facts on which the Judge sentenced the applicant were set out in the facts sheet. They were not in issue.

3 The victim of the offence was the applicant’s wife, Kay. The couple were married in Burma in 1999 and they moved to Australia in June 1999. They purchased a unit in which they were both living at the date of the offence. On Sunday 27 August 2006 they were at home but it appears that they were not speaking to one another. Mrs Heine went to bed at around 10 pm and she locked the bedroom door. She believed, wrongly, that she had the only key to the bedroom door. She was woken at about 4 am by the applicant, who had gained access to the bedroom and had taken hold of her arms. He was yelling at her to…

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 Heine v R

Details

AGLC: Heine v R [2008] NSWCCA 61
Case: [2008] NSWCCA 61
Decision Date: 16 April 2008

CaseChat Overview and Summary

The appeal arose from a case where the appellant, Heine, was convicted of detaining a person with intent to obtain advantage. The matter was heard in the High Court of Australia, where the appellant sought to appeal the severity of his sentence. Heine's appeal was based on the contention that the sentencing judge had not adequately assessed the impact of his mental disorder on his moral culpability, and that the use of sentencing statistics was inappropriate. The appeal also contended that the sentence was manifestly excessive.

The central legal issues before the court were whether the sentencing judge had erred in not sufficiently considering the impact of Heine's mental disorder on his moral culpability and whether the use of sentencing statistics was inappropriate in the circumstances. The court was also required to determine if the sentence imposed was manifestly excessive. The appellant's appeal hinged on these points, arguing that the failure to properly consider his mental health and the use of sentencing statistics amounted to a significant error that warranted a reduction in his sentence.

The court found no error in the sentencing judge's approach to Heine's mental disorder. It held that the judge had appropriately considered the impact of Heine's mental disorder and had not erred in this respect. Regarding the use of sentencing statistics, the court determined that while such statistics could be relevant, they were not determinative of the appropriate sentence. The court held that the sentencing judge had correctly exercised their discretion in imposing the sentence. The court further found that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence committed. The appeal was dismissed.

Orders