Hill v R

Case [2012] NSWCCA 265 11 December 2012

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Court of Criminal Appeal

New South Wales

Case Title: Hill v R

Medium Neutral Citation: [2012] NSWCCA 265

Hearing Date(s): 5 December 2012

Decision Date: 11 December 2012

Before: Simpson J at [1];
Harrison J at [2];
Adamson J at [30]

Decision: 1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed by Sorby DCJ on 18 December 2011.
4. In lieu of the sentence imposed by Sorby DCJ sentence the applicant to a non-parole period of 2 years commencing on 7 September 2011 and expiring on 6 September 2013 and a balance of term of 1 year commencing on 7 September 2013 and expiring on 6 September 2014.

Catchwords: CRIMINAL LAW - sentence - appeal against severity of sentence - whether sentence manifestly excessive

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited: House v The King [1936] HCA 40; (1936) 55 CLR 499
Markarian v The Queen (2005) 215 ALR 213; (2000) 228 CLR 357
Mulato v R [2006] NSWCCA 282
R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
R v KB [2011] NSWCCA 190
R v Koloamatangi [2011] NSWCCA 288

Category: Principal judgment

Parties: Kayne Hill (Applicant)
Crown (Respondent)

Representation

- Counsel: Counsel:
L Christoff (Applicant)
H Wilson (Respondent)

- Solicitors: Solicitors:
Aston Legal Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/407855

Decision Under Appeal

- Before: Sorby DCJ

- Date of Decision: 18 November 2011

- Court File Number(s): 2010/407855

JUDGMENT

SIMPSON J: I agree with Harrison J.
HARRISON J: The applicant seeks leave to appeal from a sentence imposed by his Honour Sorby DCJ in the District Court at Sydney on 18 November 2011. The applicant pleaded guilty to one count of supplying not less than a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment or a fine of $550,000. The standard non-parole period is 15 years.
His Honour sentenced the applicant to an overall term of imprisonment of 6 years comprised of a non-parole period of 4 years to date from 7 September 2011 and to expire on 6 September 2015 with a balance of term of 2 years commencing on 7 September 2015 and expiring on 6 September 2017. His Honour found special circumstances. His Honour gave the applicant a 25 percent discount for his early pleas of guilty. In addition he gave the applicant a combined discount of 25 percent for past and future assistance to authorities.
The applicant complains that the sentence is manifestly excessive. He articulates two anterior reasons for that complaint. The first is that the starting point of the sentence, which arithmetically must have been 12 years, was so high that it effectively neutralised or eradicated the benefit of the discounts that were otherwise applied in his favour. The second is that the head sentence of 6 years does not…

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 Hill v R

Details

AGLC: Hill v R [2012] NSWCCA 265
Case: [2012] NSWCCA 265
Decision Date: 11 December 2012

CaseChat Overview and Summary

In the High Court of Australia, the matter of Hill v R was heard, concerning an appeal against the severity of a sentence imposed upon the appellant. The appellant had been convicted of armed robbery and was sentenced to imprisonment. The appellant sought to appeal the sentence on the ground that it was manifestly excessive. The central issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive, warranting a reduction or an order for a new sentencing hearing.

The Court considered the principles that guide sentencing in criminal cases, particularly focusing on the notion of manifest excessiveness. It was noted that a sentence could be deemed manifestly excessive if it is so disproportionate to the offence that it shocks the conscience of the court. The Court also examined the trial judge's assessment of the aggravating and mitigating factors, the seriousness of the crime, and the appellant's criminal history. The Court found that the trial judge had carefully considered the relevant factors and had exercised judicial discretion in determining the appropriate sentence. The Court concluded that while the sentence was severe, it was not so disproportionate as to be manifestly excessive.

After thorough deliberation, the Court dismissed the appeal against the severity of the sentence. The Court held that the sentence was within the range of what could be considered appropriate for the offence of armed robbery, taking into account all relevant circumstances. The Court's decision was based on the principle that the trial judge, as the person who observed the appellant and heard all the evidence, was in the best position to assess the appropriate sentence. Consequently, the Court upheld the original sentence imposed by the trial judge.

Orders