Legal Research
Cases
Hernandez v R

Hernandez v R

Case [2013] NSWCCA 51 1 March 2013

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HERNANDEZ, Marcelo v R [2013] NSWCCA 51
Hearing dates: 13 November 2012
Decision date: 01 March 2013
Before: McClellan CJ at CL at 1
Rothman J at 2
Bellew J at 56
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - break, enter and steal - multiple offences - Form 1 offences notified - gambling debt, possible physical threat to family for repayment - effect of duress - totality - aggregate sentence manifestly excessive - exercise of discretion - not outside range - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Chow v DPP (1992) 28 NSWLR 593
House v R [1936] HCA 40; (1936) 55 CLR 499
Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
Murray v R [2013] NSWCCA 12
R v Falls [2004] NSWCCA 335
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Re Association of Architects of Australia; ex parte Municipal Officers' Association of Australia [1989] HCA 13; (1989) 63 ALJR 298
Sullivan v Department of Transport (1978) 20 ALR 323
Vuni v R [2006] NSWCCA 171
Category: Principal judgment
Parties: Marcelo Hernandez (Applicant)
Crown (Respondent)
Representation: P Boulten SC/T Gartelmann (Applicant)
J Dwyer (Respondent)
Matouk Joyner Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2009/233954
Publication restriction: None
Decision under appeal

Date of Decision:

2011-07-05 00:00:00

Before:

Sides DCJ

File Number(s):

2009/233954

Judgment

McCLELLAN CJ at CL: I agree with Rothman J.

ROTHMAN J: Marcelo Hernandez seeks leave to appeal the sentence imposed upon him by the District Court of New South Wales on 5 July 2011. If leave to appeal were granted, the applicant appeals the sentence. Both leave to appeal and the appeal were dealt with at the same time.

The applicant was charged with a number of offences and pleaded guilty to nine offences in the Local Court when the applicant was committed for sentence. The offences and their respective maximum penalties were as follows:

No.

Offence

Section/Act

Maximum penalty

7 x

Break enter & steal

112(1) Crimes Act 1900

14 yrs imprisonment

1 x

Break & enter with intent to steal

113(1) Crimes Act 1900

10 yrs imprisonment

1 x

Impair electronic communications

308E(1) Crimes Act 1900

10 yrs imprisonment

Ten further offences were taken into account. Those offences were notified pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 on a Form 1 in respect of the offence of break, enter and steal, which was committed at Bonnyrigg on 14 September 2009. The offences on the Form 1 were as follows:

No.

Offence

Section/Act

Maximum penalty

5 x

Break enter with intent to steal

113(1) Crimes Act 1900

10 yrs imprisonment

3 x

Break enter & steal

112(1) Crimes Act 1900

14 yrs imprisonment

1 x

Attempt break enter &…

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 Hernandez v R

Details

AGLC: Hernandez v R [2013] NSWCCA 51
Case: [2013] NSWCCA 51
Decision Date: 01 March 2013

CaseChat Overview and Summary

The case of Hernandez v R was heard by the court of appeal in Australia. The appellant, Hernandez, sought to appeal against his sentence for various criminal offences including breaking, entering, and stealing. Hernandez's appeal was based on the argument that his sentence was manifestly excessive, especially considering the totality of the circumstances, including the fact that he was under duress due to a gambling debt and the potential threat to his family. The respondent, the Crown, argued that the sentence was appropriate and within the range of what is permissible for such offences.

The primary legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive and manifestly inadequate when considering the totality of the circumstances. The court was required to determine if the sentence was within the range of what is appropriate for the offences committed, and whether the totality principle and the effect of duress warranted a reduction in sentence. The court also needed to assess whether the appeal was within the scope of the statutory provisions allowing for sentence appeals.

The court found that the sentence imposed by the primary judge was not manifestly excessive or manifestly inadequate. It was determined that the primary judge had appropriately considered the totality principle and the effect of duress, including the appellant's gambling debt and the potential threat to his family. The court held that the sentence was within the range of what is appropriate for the offences committed and that the appeal did not fall within the statutory provisions allowing for sentence appeals. As a result, the appeal was dismissed.

Orders