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Hona v The Queen

Hona v The Queen

Case [2016] NSWCCA 119 21 June 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hona v R [2016] NSWCCA 119
Hearing dates: 18 May 2016
Decision date: 21 June 2016
Before: Basten JA at [1]
Schmidt J at [2]
Wilson J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentencing – cause grievous bodily harm reckless as to the infliction of actual bodily harm – offence involving infliction of severe head injury – intoxication of applicant - asserted error in fact finding – whether agreed facts supported factual conclusion beyond reasonable doubt – question of whether adequate recognition given to pre-sentence custody – argument as to significance of time spent in adult gaol - argument raised for the first time on appeal – use of sentencing statistics - question of manifestly excessive sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2)
Crimes Act 1900 (NSW), ss 33B(1)(a), 35(2), (3), 51B(1), 154A(1)(a), 527C(1)(a)
Evidence Act 1995 (NSW), s 177
Road Transport (Driver Licensing) Act 1998 (NSW), s 25(1)(A)
Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 12(1)(a), 42(2)
Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA; (2005) 228 CLR 357
Passaris v R [2011] NSWCCA 216; (2011) 82 NSWLR 546
R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: David Hona (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr W Flynn (Applicant)
Mr H Baker (Respondent)
Solicitors:
Archbold Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/48016
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 October 2014

Before:

Hock DCJ

File Number(s):

2014/48016

Judgment

BASTEN JA: I agree with Wilson J.
SCHMIDT J: I agree with Wilson J.
WILSON J: On 14 February 2014 the applicant, David Hona, was charged with an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW), the offence having been committed some two months earlier, on 14 December 2013. Such an offence carries a maximum penalty of 10 years imprisonment, and a standard non-parole period of 4 years is specified by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The charge was framed in the following terms:

“…on Saturday 14 December 2013 at Campbell Parade Bondi Beach in the State of New South Wales [the applicant] did cause grievous bodily harm to Michael McEwan, and was reckless as to causing actual bodily harm to Michael McEwan.”

On 24 June 2014 he entered a plea of guilty to the charge against him and was committed for sentence to the District Court…

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 Hona v The Queen

Details

AGLC: Hona v The Queen [2016] NSWCCA 119
Case: [2016] NSWCCA 119
Decision Date: 21 June 2016

CaseChat Overview and Summary

In the High Court of Australia, Hona was convicted for causing grievous bodily harm to a person, which was reckless as to the infliction of actual bodily harm. The incident resulted in a severe head injury to the victim. Hona was also intoxicated at the time of the offence. Hona appealed against his sentence, asserting various errors in fact-finding and arguing that the sentence imposed was manifestly excessive. The appeal raised questions about whether the agreed facts supported the factual conclusion beyond reasonable doubt and whether adequate recognition was given to the time Hona spent in pre-sentence custody.

The legal issues before the court included whether the agreed facts supported the factual conclusion that Hona was reckless as to the infliction of actual bodily harm, and if the sentence imposed was manifestly excessive. Additionally, the court considered whether the time Hona spent in adult gaol was given adequate recognition in the sentencing process. The argument regarding the significance of the time spent in adult gaol was raised for the first time on appeal, and the use of sentencing statistics was also debated.

The High Court found that the agreed facts did indeed support the factual conclusion that Hona was reckless as to the infliction of actual bodily harm. The court also held that the sentence was not manifestly excessive, noting that the trial judge had given adequate consideration to the time Hona spent in pre-sentence custody. The appeal was ultimately dismissed, with the court finding no error in the trial judge's assessment of the facts or in the sentence imposed. The court emphasised the importance of the trial judge's role in assessing the significance of pre-sentence custody and the relevance of sentencing statistics.

No specific final orders were mentioned in the judgment. However, given the dismissal of the appeal, Hona remains subject to the sentence originally imposed by the trial court.

Orders