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Hillsley v The Queen

Hillsley v The Queen

Case [2013] NSWCCA 78 2 May 2013

Aggravated Break and Enter

Sentence Appeal

Criminal Liability

Sentencing

Disparity in Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hillsley v R [2013] NSWCCA 78
Hearing dates: 13 March 2013
Decision date: 02 May 2013
Jurisdiction: Criminal
Before: Hoeben CJ at CL - [1]
Slattery J - [2-66]
Bellew J - [67]
Decision:
Allow the application for leave to appeal. Appeal dismissed

Catchwords: CRIMINAL LAW - sentence appeal - applicant found guilty after a trial of one count of aggravated break and enter under Crimes Act s 112(2) - applicant solicits and organises two others to break and enter and steal tyres at night from industrial premises - applicant and co-offenders make two journeys to remove and store the tyres but caught on the second journey - applicant pleads not guilty - co-offenders plead guilty and give evidence against applicant at his trial - co-offenders receive suspended sentences of imprisonment - applicant sentenced to a term of imprisonment - whether applicant has a justifiable sense of grievance due to disparity in the sentences imposed upon his co-offenders and upon him - whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure Act) 1995
Cases Cited: Carroll v The Queen [2009] HCA 13
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v R [1936] HCA 40; 55 CLR 499
Jimmy v R (2010) 77 NSWLR 540
Leeth v Commonwealth [1992] HCA 29 174 CLR 955
Lowe v R [1984] HCA 46; 154 CLR 606
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v R [2011] HCA 39; 244 CLR 120
Postiglione v R [1997] HCA 29; 189 CLR 295
Rae v R [2011] NSWCCA 211
Shortland v R [2013] NSWCCA 4
Warner v Regina [2013] NSWCCA 10
Wong v R [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Cameron Hillsley (Applicant)
Regina (Respondent
Representation: Counsel:
Applicant: James F. Viney
Respondent: S. Dowling
Solicitors:
Applicant: Paul Wiggins
Respondent: S. Kavanagh, Solicitor for Public Prosecutions

File Number(s): 2010/2474551
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-10-07 00:00:00

Before:

Acting District Court Judge Puckeridge

File Number(s):

2010/247451

Judgment

HOEBEN CJ AT CL: I agree with Slattery J.

SLATTERY J: The applicant, Cameron Charles Hillsley seeks leave under Criminal Appeal Act 1912 s 5(1)(c) to appeal against a sentence that his Honour Acting Judge Puckeridge QC imposed upon him after a trial on indictment at the Wagga Wagga District Court on 7 October 2011.

Offence and Sentence

After a trial on 3, 4 and 5 August 2011 a jury found the applicant guilty of one count of "Aggravated Break Enter and Steal" in contravention of Crimes Act 1900 s 112(2). The offence occurred at Wagga Wagga during the evening of 24 and 25 July 2010. The aggravating circumstances were that the applicant committed the offence in company, with two other persons, Michael Dennis and Rachel Miller.

Crimes Act s 112 (2) carries a maximum penalty of…

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 Hillsley v The Queen

Details

AGLC: Hillsley v The Queen [2013] NSWCCA 78
Case: [2013] NSWCCA 78
Decision Date: 02 May 2013

CaseChat Overview and Summary

The case of Hillsley v The Queen involved the applicant who was found guilty, following a trial, of one count of aggravated break and enter under section 112(2) of the Crimes Act. The applicant had solicited and organised two others to break into and steal tyres from an industrial premises. The trio made two journeys to remove and store the stolen items but were apprehended during the second trip. The applicant pleaded not guilty while his co-offenders pleaded guilty and testified against him at his trial. The co-offenders received suspended sentences of imprisonment, while the applicant was sentenced to a term of imprisonment. The applicant appealed the sentence on the basis that he had a justifiable sense of grievance due to the disparity in the sentences imposed upon his co-offenders and upon him, and that his sentence was manifestly excessive.

The legal issues the court had to determine were whether the applicant's sentence was manifestly excessive and whether he had a justifiable sense of grievance due to the disparity in the sentences imposed on him and his co-offenders. The court examined the principles of sentencing, the role of disparity in sentencing, and the objective and subjective circumstances of the case. The court also considered the principles of parity and proportionality in sentencing, and whether the disparity in sentences was so significant as to render the applicant's sentence manifestly excessive.

The court held that the sentence imposed on the applicant was not manifestly excessive and that the disparity in sentences did not render the sentence unjust. The court found that the sentencing judge had appropriately considered the aggravating factors of the offence, including the applicant's role in organising the crime and the significant value of the stolen goods. The court also noted that the co-offenders' sentences were appropriate given their level of involvement and the fact that they pleaded guilty and gave evidence against the applicant. The court rejected the applicant's claim of a justifiable sense of grievance, finding that the disparity in sentences was not so significant as to render the applicant's sentence manifestly excessive.

The appeal was dismissed, and the original sentence of imprisonment was upheld.

Orders