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Hemsworth v The King

Hemsworth v The King

Case [2025] NSWCCA 2 12 February 2025

Appeal

Sentencing

Assistance to Authorities

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Hemsworth v R [2025] NSWCCA 2
Hearing dates: 27 September 2024
Date of orders: 12 February 2025
Decision date: 12 February 2025
Before: Mitchelmore JA at [1]
Davies J at [2]
Campbell J at [3]
Decision:
(1) Under r. 3.5 Supreme Court (Criminal Appeal) Rules 2021, grant leave to the applicant to make his application for leave to appeal from the sentence passed upon him in the District Court on 10 September 2021.
(2) Under s 5(1)(c) Criminal Appeal Act 1912 (NSW) grant leave to appeal against the sentence.
(3) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – assistance to authorities – discount under s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – where the sentencing judge failed to consider the applicant’s assistance to authorities while on remand – negligible connection between the applicant’s offences and the offending in respect of which the applicant is said to have provided assistance – exercise of discretion to decline to provide a discount on re-sentence

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5
Criminal Appeal Act 1912 (NSW), ss 6, 10
Crimes (Sentencing Procedure) Act 1999 (NSW), SS 23, 44, 53A, 54

Cases Cited:
Ahmad v R [2021] NSWCCA 30
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Owens v R [2023] NSWCCA 198
R v Birks (1990) 19 NSWLR 677
R v Hemsworth [2021] NSWDC 638
R v Vachalec [1981] 1 NSWLR 351
R v XX [2017] NSWCCA 90; 266 A Crim R 132
RJT v R [2012] NSWCCA 280; 218 A Crim R 490
Springer v The Queen [2007] NSWCCA 289; 117 A Crim R 13
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Zreika v R [2012] NSWCCA 44; 233 A Crim R 460

Category: Principal judgment
Parties: Brendan Ray Hemsworth (Applicant)
Rex (Crown)
Representation:
Counsel:
S Flood with M Hunter (Applicant)
E Nicholson (Crown)
Solicitors:
Kingston Fox Lawyers (Applicant)
Solicitor for Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00153458
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 638

Date of Decision:

10 September 2021

Before:

Buscombe…

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 Hemsworth v The King

Details

AGLC: Hemsworth v The King [2025] NSWCCA 2
Case: [2025] NSWCCA 2
Decision Date: 12 February 2025

CaseChat Overview and Summary

In the case of Hemsworth v The King, the appellant, Hemsworth, was convicted of several criminal offences and subsequently sentenced by the District Court of New South Wales. Hemsworth appealed against the sentence on the grounds that the sentencing judge failed to consider the assistance he provided to authorities while on remand. Hemsworth claimed that he should have been granted a discount under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for his cooperation. The crux of the appeal was whether the sentencing judge's omission to consider the assistance provided by Hemsworth was a material error and whether the assistance was sufficiently connected to the current offences.

The court was required to determine whether the sentencing judge's failure to consider the appellant's assistance to authorities constituted a material error and, if so, whether the assistance provided was sufficiently connected to the current charges to warrant a discount under section 23 of the Act. The court considered the principles of sentencing discretion and the relevance of the assistance provided by Hemsworth while on remand. It was noted that the assistance provided by Hemsworth was negligible in connection to the offences for which he was being sentenced, which influenced the court's decision on the exercise of discretion to decline the discount.

The Court of Appeal held that the sentencing judge's failure to consider the appellant's assistance to authorities was a material error, but the connection between the assistance and the current offences was negligible. Given the minimal connection and the nature of the assistance provided, the court exercised its discretion under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to decline the discount on re-sentencing. The appeal was ultimately dismissed, and the original sentence was upheld.

Orders