Hitchcock v R - [2016] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hitchcock v R [2016] NSWCCA 226
Hearing dates: 30 September 2016
Date of orders: 17 October 2016
Decision date: 17 October 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [50]
Campbell J at [55]
Decision:
(1)   Leave to appeal against sentence is granted and the appeal is allowed.
(2)   The sentence imposed in the District Court on 24 September 2015 is quashed.
(3)   In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 6 years commencing 28 May 2013 and expiring on 27 May 2019 with a balance of term of 3 years expiring 27 May 2022. The applicant will become eligible for parole on 28 May 2019.

Catchwords: CRIMINAL LAW – sentence appeal – offender pleaded guilty to one count of wound with intent to murder – failure by sentencing judge to quantify the discount to be afforded to the offender for assistance to authorities – ground of appeal conceded by Crown – need to re-sentence – on re-sentence a lesser sentence warranted in law.
Legislation Cited: Crimes Act 1900 – s 27
Crimes (Sentencing Procedure) Act 1999 – s 23, s 101A
Criminal Appeal Act 1912 – s 5(1)(c)
Motor Accident Compensation Act 1999
Cases Cited: Avery v R [2015] NSWCCA 50
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Panetta v R [2016] NSWCCA 85
R v Robinson [2014] NSWCCA 12
Category: Principal judgment
Parties: Matthew Hitchcock – Applicant
Regina – Respondent Crown
Representation:
Counsel:
K Averre – Applicant
Dr D Kell/M Pulsford – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/164538
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 September 2015

Before:

Hanley DCJ

File Number(s):

2013/164538

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was charged with an offence of wound with intent to murder contrary to s 27 of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years with a standard non-parole period of 10 years.

Ten days before his trial was due to commence, the applicant entered a plea of guilty to that charge. He was sentenced by Judge Hanley SC on 24 September 2015. His Honour sentenced the applicant to imprisonment with a non-parole period of 8 years commencing 28 May 2013 and expiring 27 May 2021 with a balance of term of 4 years expiring 27 May 2025.
The applicant seeks leave to appeal against that sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912. He relies upon a single ground of appeal:

That the sentencing judge erred in failing to quantify the discount to be afforded to the applicant for his assistance to the authorities

Factual background

Mr Shannon Suttle (the victim) had been married to Ms Tara Hebb (the co-accused). The co-accused and the victim had two…

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 Hitchcock v R

Details

AGLC: Hitchcock v R [2016] NSWCCA 226
Case: [2016] NSWCCA 226
Decision Date: 17 October 2016

CaseChat Overview and Summary

In the case of Hitchcock v R, the appellant, Hitchcock, was convicted and sentenced for the offence of wounding with intent to murder. Hitchcock appealed against his sentence, arguing that the sentencing judge had failed to adequately quantify the discount to be afforded for his assistance to the authorities. The Crown conceded this ground of appeal, necessitating a re-sentencing of the offender.

The legal issues before the court included whether the failure to quantify the discount for assistance constituted a significant error in the sentencing process and whether this warranted a re-sentencing. The court was required to consider the principles of sentencing and the appropriate discount that should be applied for the offender's cooperation with the authorities.

The court found that the sentencing judge's failure to quantify the discount constituted a significant error. The court re-evaluated the sentence, taking into account the appropriate discount for the offender's assistance. After reassessment, the court determined that a lesser sentence was warranted in law. Consequently, the court ordered a re-sentencing of the offender.

Orders