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…
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.
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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.