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HMP v The Queen

HMP v The Queen

Case [2010] NSWCCA 63 23 April 2010

Appeal

Sentencing

Limitation Periods

Aggravated & Exemplary Damages

Judicial Review

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: HMP v R [2010] NSWCCA 63

HEARING DATE(S): 16 March 2010

JUDGMENT DATE:
23 April 2010

JUDGMENT OF: McClellan CJatCL at 1; Latham J at 2; Schmidt J at 3

DECISION: Leave to appeal against sentence refused.

CATCHWORDS: CRIMINAL LAW - appeal against sentences - whether sentencing Judge failed to assess where the offence at count 2 fell in the range in terms of objective seriousness - whether the test in relation to any departure from the standard non-parole period was wrongly articulated - whether sentencing Judge impermissibly had regard to the applicant’s prior criminal record as an aggravating factor - whether sentencing Judge erred in finding the offences to be ‘a series of criminal acts’ and so an aggravating factor for purpose of s 21A (2)(m) of the Crimes (Sentencing Procedure) Act - whether sentencing Judge failed to have proper regard to the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court of New South Wales - whether other sentences were warranted in law - s 6 of the Criminal Appeal Act 1912 - lenient sentences - no error in sentences shown - leave to appeal against sentence refused

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Children (Criminal Proceedings) Act 1987

CATEGORY: Principal judgment

CASES CITED: AJO v Regina [2008] NSWCCA 28
Kerr v Regina [2008] NSWCCA 133
McCullough v R [2009] NSWCCA 94
Phan v R [2010] NSWCCA 8
Porter v R [2008] NSWCCA 145
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Janceski [2005] NSWCCA 228; (2005) 44 MVR 328
R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Scott [2005] NSWCCA 152
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2002) 137 A Crim R 180
Regina v Palmer [2005] NSWCCA 349
Tapueluelu v R [2006] NSWCCA 113
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES: HMP (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 15102/2008

COUNSEL: Mr W Hunt (Applicant)
Ms J Dwyer - (Crown)

SOLICITORS: S O'Connor (Legal Aid NSW) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0983

LOWER COURT JUDICIAL OFFICER: Phegan J

LOWER COURT DATE OF DECISION: 16 December 2008

- 22 -

2008/15102

McCLELLAN CJ AT CL
LATHAM J
SCHMIDT J

FRIDAY, 23 APRIL 2010

HMP v R

Judgment

1 McCLELLAN CJ: I agree with Schmidt J.

2 LATHAM J: I agree with Schmidt J.

3 SCHMIDT J: This is…

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 HMP v The Queen

Details

AGLC: HMP v The Queen [2010] NSWCCA 63
Case: [2010] NSWCCA 63
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the High Court of Australia, HMP appealed against his sentence for various criminal offences. The appeal centred on the contention that the sentencing Judge had erred in various respects in determining the appropriate penalties. The legal issues before the Court were whether the sentencing Judge had failed to adequately assess the seriousness of the offence at count 2, whether the articulation of the test in relation to any departure from the standard non-parole period was incorrect, whether the sentencing Judge improperly considered HMP’s prior criminal record as an aggravating factor, and whether the Judge had erred in finding the offences to be a series of criminal acts for the purpose of s 21A (2)(m) of the Crimes (Sentencing Procedure) Act. The Court was also asked to consider whether the sentencing Judge had failed to properly regard the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court of New South Wales, and whether other sentences were warranted in law.

The Court found that no errors had been made by the sentencing Judge. The Court held that the Judge had appropriately assessed the seriousness of the offence at count 2, and had correctly articulated the test in relation to any departure from the standard non-parole period. The Court also found that the sentencing Judge had not improperly considered HMP’s prior criminal record, and that the Judge had not erred in finding the offences to be a series of criminal acts. The Court held that the sentencing Judge had properly regarded the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court of New South Wales, and that the sentences imposed were warranted in law. The Court concluded that no error in the sentences had been shown, and that leave to appeal against sentence should be refused.

Orders