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Higgins v R

Higgins v R

Case [2020] NSWCCA 169 24 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Higgins v R [2020] NSWCCA 169
Hearing dates: 16 June 2020
Date of orders: 24 July 2020
Decision date: 24 July 2020
Before: Johnson J at [1];
Wright J at [2];
Wilson J at [3]
Decision:
(1)   Leave to appeal on ground 1 is refused;
(2)   Leave to appeal on ground 2 is granted;
(3)   The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentencing – appeal against sentence – manifest excess – possess prohibited weapon – escape police custody – affray – resist police

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal) Violence Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Bugmyv The Queen (2013) 249 CLR 571; [2013] HCA 37
Dagdanasar v R [2010] NSWCCA 310
Obeid v R (2017) 96 NSWLR 155
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Crombie [1999] NSWCCA 297
R v Depoma [2003] NSWCCA 382
R v El Masri [2005] NSWCCA 167
R v Fernando (1992) 76 A Crim R 58
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Salafia v R [2015] NSWCCA 141
Tuite v R [2018] NSWCCA 175
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Jacob Higgins (Applicant)
The Crown (Respondent)
Representation:
Counsel:
I Nash (Applicant)
G Newton (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/008944
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 November 2019

Before:

English DCJ

File Number(s):

2019/008944

Judgment

JOHNSON J: I agree with Wilson J.
WRIGHT J: I agree with the orders proposed by Wilson J for the reasons which her Honour has given.
WILSON J: Jacob Higgins was sentenced before the District Court of New South Wales to a term of imprisonment of 3 years duration, with a non-parole period (“NPP”) of 1 year and 9 months for a number of offences. The sentence, imposed on 1 November 2019, commenced on 9 March 2019 and will expire on 8 March 2022; the applicant will be eligible for release to parole on 8 December 2020. He seeks leave to appeal against that sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
The offences for which the applicant received that sentence, together with the maximum penalty applicable, any standard non-parole period (“SNPP”) and the indicative sentence with respect to each, are below.

Offence

Maximum Penalty

Indicative Sentence

Possess prohibited weapon

s 7(1) Weapons Prohibition Act 1998 (NSW)

14 years imprisonment

SNPP 5 years

2 years and 6 months imprisonment; NPP 12 months

Escape…

Offence	Maximum Penalty	Indicative Sentence
Possess prohibited weapon s 7(1) Weapons Prohibition Act 1998 (NSW)	14 years imprisonment SNPP 5 years	2 years and 6 months imprisonment; NPP 12 months
Escape…

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 Higgins v R

Details

AGLC: Higgins v The Queen [2020] NSWCCA 169
Case: [2020] NSWCCA 169
Decision Date: 24 July 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the appellant, Higgins, sought to appeal against his sentence for various criminal offences, including possession of a prohibited weapon, escape from police custody, and affray. The respondent, the Crown, argued for the affirmation of the sentence handed down by the lower court. The appellant contended that the sentence was manifestly excessive and disproportionate to the nature and circumstances of the offences committed. The court was required to determine whether the sentence imposed by the lower court was manifestly excessive and whether it took into account all relevant mitigating factors.

The court considered the principles of sentencing in criminal cases, which require a balance between deterrence, denunciation, and rehabilitation. The court examined the nature and severity of the offences, the appellant's criminal history, and the circumstances surrounding the commission of the offences. The court also considered the appellant's arguments regarding the excessiveness of the sentence and whether the lower court had adequately taken into account all relevant mitigating factors. Ultimately, the court found that the sentence imposed by the lower court was not manifestly excessive and that all relevant mitigating factors had been considered. The court affirmed the sentence and dismissed the appeal.

The court held that the sentence imposed by the lower court was proportionate to the nature and circumstances of the offences committed and took into account all relevant mitigating factors. The court rejected the appellant's arguments regarding the excessiveness of the sentence and found that the lower court had exercised its discretion appropriately in determining the appropriate sentence. The court found that the sentence was just and appropriate in all the circumstances of the case.

The final orders of the court were that the appeal against sentence be dismissed and that the sentence imposed by the lower court be affirmed. The appellant was required to serve the sentence as determined by the lower court, and the Crown was entitled to enforce the sentence accordingly.

Orders