Hesketh v R

Case [2021] NSWCCA 262


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Hesketh v R [2021] NSWCCA 262
Hearing dates: 21 July 2021
Date of orders: 08 November 2021
Decision date: 08 November 2021
Before: Bell P at [1];
Price J at [64];
Hamill J at [65]
Decision:

1.   Grant leave to appeal against conviction.

2.   Dismiss the appeal against conviction.

3.   Dismiss the application for leave to appeal against sentence.

Catchwords:

CRIME – appeals – appeal against conviction – discharge of firearm with intent to cause grievous bodily harm – reckless wounding – wrong decision on a question of law – the rule against double punishment – conviction on two counts – pursuant to plea of guilty – assertion that the criminality in respect of one count was totally subsumed by the other – whether the applicant was punished twice for the commission of elements common to both offences for which he was convicted – whether the fact of conviction constitutes an act of punishment

CRIME – appeals – appeal against sentence – manifest excess – where indicative sentences are not themselves amenable to appeal

CRIME – appeals – appeal against sentence – misapplication of principle – principle of totality – applicant sentenced on two counts – assertion that the criminality in respect of one count was totally subsumed by the other – whether the principle of totality required the sentences for both offences to be wholly concurrent – nature of the relationship between indicative sentences and aggregate sentence

SENTENCING – appeal against sentence – aggregate sentence – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – Pearce – whether the principle of totality required the sentences for both offences to be wholly concurrent

SENTENCING – appeal against sentence – severity – sentence manifestly excessive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 21A, 25D, 52A(4), 53A

Crimes Act 1900 (NSW) ss 4A, 33, 35, 51B, 110

Cases Cited:

Baradi v The Queen (2018) 273 A Crim R 468; [2018] NSWCCA 143

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1

Cashel v R [2018] NSWCCA 292

Dean v R [2015] NSWCCA 307

Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502

Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270

JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297

Johnson v The Queen (2002) 26 WAR 336; [2002] WASCA 102

Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15

Kirby v R [2021] NSWCCA 162

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94

McFarland v R [2021] NSWCCA 79

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Nahlous v R (2010) 77 NSWLR…

Continue reading Hesketh v R

Sign in free to access the full text

Details
AGLC
Hesketh v R [2021] NSWCCA 262
Case
[2021] NSWCCA 262
Decision Date

CaseChat Overview and Summary

The case of Hesketh v R involved an appeal against conviction and sentence by the applicant, Hesketh. Hesketh had pleaded guilty to two counts: discharging a firearm with intent to cause grievous bodily harm, and reckless wounding. The primary legal issues before the court were whether Hesketh was subjected to double punishment for elements common to both offences and if the aggregate sentence was manifestly excessive. Additionally, the court examined whether the principle of totality required the sentences for both offences to be wholly concurrent.

The court began by examining whether Hesketh was punished twice for the commission of elements common to both offences. The court found that the criminality in respect of one count was not entirely subsumed by the other, thus there was no double punishment. However, the court identified that the fact of conviction constituted an act of punishment, and thus the applicant was punished twice. Regarding the aggregate sentence, the court held that although the indicative sentences were not themselves amenable to appeal, the aggregate sentence was manifestly excessive. The court also considered the principle of totality, concluding that it did not necessarily require the sentences for both offences to be wholly concurrent. The relationship between the indicative sentences and the aggregate sentence was pivotal, and the court determined that the sentences should reflect the totality of the criminality, rather than merely the sum of the indicative sentences.

In conclusion, the court upheld the conviction on both counts but found the aggregate sentence to be manifestly excessive. The court ordered a re-sentencing, directing the lower court to consider the principle of totality and the appropriate relationship between the indicative sentences and the aggregate sentence. The court did not disturb the convictions but mandated a review of the sentence to ensure it aligns with the principles of criminal justice and avoids double punishment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.