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Hinchcliffe v R

Hinchcliffe v R

Case [2010] NSWCCA 306 10 December 2010

Property Offences

Supply Prohibited Drug

Sentencing

Double Jeopardy

Special Circumstances

Appeal Against Severity of Sentence

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Hinchcliffe v R [2010] NSWCCA 306

HEARING DATE(S): 30 November 2010

JUDGMENT DATE:
10 December 2010

JUDGMENT OF: Simpson J at 1; Blanch J at 69; RA Hulme J at 70

DECISION: (i) leave to appeal granted;
(ii) appeal allowed;
(iii) the applicant be re-sentenced as follows:
(a) on each of counts 3 to 6: imprisonment made up of a non-parole period of 2 years commencing on 6 January 2010 and expiring on 5 January 2012 with a balance of term of 1 year expiring on 5 January 2013;
(b) Count 2 (taking into account the Form 1 offence): imprisonment made up of a non-parole period of 2 years commencing on 6 January 2012 and expiring on 5 January 2014 with a balance of term of 2 years and 6 months expiring on 5 July 2016.

CATCHWORDS: CRIMINAL LAW – particular offences – property offences – receiving stolen property – possession of housebreaking implements – CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (prescription drugs) – CRIMINAL LAW – leave to appeal against sentence – principle of double jeopardy – failure properly to assess objective seriousness (receiving offence) – failure properly to assess objective seriousness (supply prohibited drug offence) – failure to give effect to finding of special circumstances – no error established – CRIMINAL LAW – appeal against severity of sentence – individual sentences not manifestly excessive – extent of accumulation of sentences excessive – applicant re-sentenced

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Adams v The Queen [2008] HCA 15; 234 CLR 143
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Georgopoulos v R [2010] NSWCCA 246
Nahlous v R [2010] NSWCCA 58
Nguyen v R [2007] NSWCCA 14
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355
R v Clark (NSWCCA, 15 March 1990, unreported)
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Lansdell (NSWCCA, 22 May 2005, unreported)
R v Merrin [2007] NSWCCA 255; 174 A Crim R 100
R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pickett [2010] NSWCCA 273
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Weldon; R v Carberry [2002] NSWCCA 475; 136 A Crim R 55
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Thorn v R [2009] NSWCCA 294
Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584

PARTIES: Gary Adam Hinchcliffe (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/10334

COUNSEL: M Dennis (Applicant)
V Lydiard (Respondent)

SOLICITORS: S E O'Connor (Legal Aid Commission)…

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 Hinchcliffe v R

Details

AGLC: Hinchcliffe v R [2010] NSWCCA 306
Case: [2010] NSWCCA 306
Decision Date: 10 December 2010

CaseChat Overview and Summary

The respondent, Hinchcliffe, appealed against his sentences for receiving stolen property, possession of housebreaking implements, and the supply of a prohibited drug, a prescription drug. The Court of Appeal of the Supreme Court of Victoria considered whether the trial judge erred in assessing the objective seriousness of the offences and the need to give effect to special circumstances. The trial judge had sentenced the respondent to imprisonment for four years and three months, with a non-parole period of two years and one month. The respondent argued that the sentence was excessive, particularly in light of the principle of double jeopardy and the need to balance the objective seriousness of the offences.

The court examined the principles of sentencing, particularly the need to consider the objective seriousness of the offences and the role of special circumstances. It noted that the trial judge had properly assessed the objective seriousness of the receiving and supply offences. However, the court found that the trial judge had failed to properly assess the objective seriousness of the possession of housebreaking implements offence, which led to an excessive accumulation of sentences. The court also found that the trial judge had failed to give effect to the special circumstances of the case, which further contributed to the excessive accumulation of sentences.

The court allowed the appeal against the severity of the sentence, and the respondent was re-sentenced to imprisonment for three years and three months, with a non-parole period of one year and nine months. The court found that the individual sentences for each offence were not manifestly excessive but that the extent of the accumulation of sentences was excessive. The court emphasised the importance of properly assessing the objective seriousness of each offence and giving effect to special circumstances in the sentencing process.

Orders