Hoare v The Queen

Case [1989] HCA 33


HIGH COURT OF AUSTRALIA

Mason C.J., Deane, Dawson, Toohey and McHugh JJ.

HOARE v. THE QUEEN

(1989) 167 CLR 348

30 June 1989

Criminal Law (S.A.)

Criminal Law (S.A.)—Sentence—Principles—Court required to have regard to possibility of remission—Whether justification for increase of otherwise appropriate sentence—Criminal Law Consolidation Act 1935 (S.A.), s. 302.

Decision


MASON C.J., DEANE, DAWSON, TOOHEY AND McHUGH JJ. These are applications for special leave to appeal against sentence from decisions of the South Australian Court of Criminal Appeal. While the applicants' respective criminal activities were unrelated, the outstanding ground of appeal is the same in each case. It is that the Court of Criminal Appeal misconstrued and misapplied s.302 of the Criminal Law Consolidation Act 1935 (SA) in that it acted on the basis that the practical effect of that section was to require a dramatic increase in South Australia in the length of terms of imprisonment and non-parole periods under sentences for crimes committed after the commencement of the section in December 1986. The applications for special leave to appeal were argued together and it is convenient to deal with them in a single judgment.

2. The applicant Andrew John Easton ("Easton") was convicted of four counts of armed robbery. He was sentenced by the trial judge to concurrent terms of imprisonment: 5 years on the first count; 7 1/2 years on the second count; 12 years on the third count; and 15 years on the fourth count. His Honour fixed a non-parole period of 11 1/2 years and ordered that the four sentences and the non-parole period run from 25 March 1987, that being the date on which Easton had been taken into custody. On appeal by the Crown against sentence, the Court of Criminal Appeal (King C.J., White and O'Loughlin JJ.) allowed the appeal, set aside the concurrent sentences imposed by the trial judge and substituted the following sentences: 8 years on count one; 8 years on count two (concurrent with the sentence imposed on count one); 12 years on count three (cumulative on the sentences imposed on counts one and two); and 12 years on count four (concurrent with the sentence imposed on count three). The Court of Criminal Appeal fixed a non-parole period of 15 years and ordered that the sentences imposed on counts one and two and the non-parole period run from 25 March 1987. In the result, the Court of Criminal Appeal substituted, for the effective total sentence of 15 years and the non-parole period of 11 1/2 years imposed and fixed by the trial judge, an effective total sentence of 20 years and a non-parole period of 15 years. The crimes covered by counts one and two, in respect of which sentences of 8 years were imposed, were committed before the commencement of s.302. Those covered by counts three and four, in respect of which sentences of 12 years were imposed, were committed after the commencement of the section.

3. The applicant Aleksander Constantine Terry Hoare ("Hoare") was convicted…

Continue reading Hoare v The Queen

Sign in free to access the full text

Details
AGLC
Hoare v The Queen [1989] HCA 33
Case
[1989] HCA 33
Decision Date

CaseChat Overview and Summary

In *Hoare v The Queen*, the High Court of Australia considered an appeal by the applicant, Hoare, against his conviction for armed robbery. The dispute arose from the applicant's participation in a robbery where a firearm was discharged, leading to charges under s 99 of the *Crimes Act 1900* (NSW), which deals with robbery or assault with intent to rob while armed with a dangerous weapon.

The central legal issue before the High Court was the interpretation of s 99 of the *Crimes Act 1900* (NSW), specifically whether the prosecution was required to prove that the accused intended to use the dangerous weapon during the commission of the robbery, or if it was sufficient to prove that the accused was armed with a dangerous weapon and intended to commit the robbery. The court also considered whether the discharge of the firearm by an accomplice during the robbery could be attributed to the applicant for the purposes of establishing the offence under s 99.

The High Court, by majority, held that s 99 of the *Crimes Act 1900* (NSW) does not require proof that the accused intended to use the dangerous weapon. It is sufficient to prove that the accused was armed with a dangerous weapon and intended to commit the robbery. The court reasoned that the section creates a single offence, and the presence of the dangerous weapon is an aggravating circumstance. Furthermore, the majority found that the discharge of the firearm by an accomplice was an act done in the course of the commission of the robbery and could be attributed to the applicant as a co-offender.

The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.