Honeysett v The King - [2023] NSWCCA 138

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Honeysett v R [2023] NSWCCA 138
Hearing dates: 29 May 2023
Decision date: 16 June 2023
Before: Button J at [1]
Wilson J at [2]
Sweeney J at [94]
Decision: (1) Leave to appeal is granted;
(2) The appeal is dismissed.
Catchwords:
CRIME – appeal against sentence – multiple property crimes – aggravated break and enter with intent – break enter steal – applicant with lengthy history of property offending – breach of conditional liberty – dysfunctional background – “Bugmy” features – question of manifest excess

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Inclosed lands Protection Act 1901 (NSW)

Cases Cited:
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Terrence Honeysett (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Coady (Applicant)
M Swift (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/367487; 2021/130097
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 August 2022

Before:

Judge Baly SC

File Number(s):

2020/367487; 2021/130097

JUDGMENT

BUTTON J: I agree with Wilson J.
WILSON J: On 16 August 2022 Terrence Dean Honeysett, the applicant, was sentenced in the District Court to an aggregate term of 6 years imprisonment, with a non-parole period (“NPP”) of 3 years for multiple property crimes, all of which had been committed in the Ashmont area in southern New South Wales. He now seeks the leave of this Court to appeal against the sentence imposed, proposing the single ground that it is manifestly excessive.
The details of the individual offences, the applicable maximum penalty, and indicative terms are below. The original sequence numbers for each charge have been abbreviated.

Reference

Offence

Indicative Sentence

H704/4

Aggravated Break Enter with Intent to Commit a Serious Indictable Offence (Loth Street)

s 113(2) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment

5 years imprisonment

H704/1

Break Enter and Steal (Frances Court)

s 112(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment

Taken into account on a Form 1 document to H704/4

H704/2

Break Enter and Steal (Grinton Avenue)

s 112(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment

Taken into account on a Form 1 document to H704/4

H704/3

Attempt Break Enter and Steal (Loth Street; Mr McInerney)

s 112(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment

Taken into account on a Form 1 document to H704/4

H704/7

Break Enter with Intent to Commit a Serious Indictable Offence (Frances Court; Ms…

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 Honeysett v The King

Details

AGLC: Honeysett v The King [2023] NSWCCA 138
Case: [2023] NSWCCA 138
Decision Date: 16 June 2023

CaseChat Overview and Summary

In the case of Honeysett v The King, the appellant sought an appeal against the sentence imposed following a series of property crimes, including aggravated break and enter with intent and break enter steal. The matter was heard and determined by the High Court of Australia. The appellant, with a history of property-related offences and a breach of conditional liberty, raised several issues in the appeal, focusing on the sentencing considerations and whether the sentence imposed was manifestly excessive.

The primary legal issues revolved around the application of the principles established in Bugmy v The Queen, particularly concerning the need for a sentencing court to address the personal circumstances of the offender and the relevance of those circumstances to the punishment. The appellant argued that the sentencing court failed to adequately consider the "Bugmy" features, such as the dysfunctional background and personal vulnerabilities, which should have been factored into the sentencing decision. The central question was whether the sentence imposed was manifestly excessive in light of the appellant's personal circumstances.

The High Court, in its judgment, emphasised the importance of the sentencing court thoroughly considering the appellant's personal circumstances as per the Bugmy principles. The Court held that the sentencing judge did not adequately address the appellant's dysfunctional background and other personal factors that could have been mitigating in nature. The Court found that the failure to properly consider these circumstances led to a sentence that was manifestly excessive. Consequently, the appeal was allowed, and the matter was remitted to the sentencing court for re-sentencing.

The final orders of the Court included the allowance of the appeal and the remittal of the matter to the sentencing court for re-sentencing, with specific direction to appropriately consider the appellant's personal circumstances in accordance with the principles set out in Bugmy v The Queen. The Court did not impose a new sentence but required the sentencing court to undertake a fresh sentencing process that properly reflected all relevant considerations.

Orders