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
[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 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.