Basten JA at [1]; Brereton JA at [3]; Beech-Jones J at [78]
Decision:
(1) Extend time for the applicant to file a Notice of Appeal to the date on which it was filed;
(2) Grant leave to the applicant to appeal against the aggregate sentence imposed on 20 February 2020 by the District Court;
(3) Allow the appeal; and
(4) Quash the aggregate sentence imposed in the District Court on 20 February 2020 in respect of sequences 7, 10, 11, and 12, and in lieu thereof:
(a) impose an aggregate sentence of five years’ imprisonment to commence from 31 January 2019 and expire on 30 January 2024;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of three years, and specify that the earliest date the applicant will be eligible to be released on parole is 31 January 2022; and
(c) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:
(i) sequence 11 (reckless wounding of Ms Whitmore): three years, with a non-parole period of two years;
(ii) sequence 12 (reckless wounding of Ms Charles): three years, with a non-parole period of two years;
(iii) sequence 10 (affray): one year and six months; and
(iv) sequence 7 (aggravated break, enter (knowing that a person was in the place) and commit serious indictable offence (assault occasioning actual bodily harm): two years and three months, with a non-parole period of one year and six months.
Catchwords:
CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender’s background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed
SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences
CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted
Legislation Cited:
Crimes Act 1900 (NSW), ss 35(4), 59(1), 93C(1), 112(2)
[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
Hoskins v R [2021] NSWCCA 169
Case
[2021] NSWCCA 169
Decision Date
CaseChat Overview and Summary
The appellant, Hoskins, was convicted on two counts of recklessly wounding, affray, and aggravated break and enter and commit a serious indictable offence. The appeal was against the sentence imposed by the sentencing judge, with an application for an extension of time to appeal. The appeal was heard by the High Court of Australia. The central legal issue before the court was whether the sentencing judge had given appropriate consideration to the appellant’s background of social disadvantage when determining the sentence. The court had to examine if the judge adequately considered the appellant's difficult upbringing, the impact of discovering their biological family, and the onset of alcohol and drug abuse, all of which contributed to the appellant’s offending behaviour.
The High Court found that the sentencing judge did not sufficiently consider the appellant's background of social disadvantage. The court emphasised the importance of taking into account such factors when assessing an offender's moral culpability and determining an appropriate sentence. The court referred to the principles established in Bugmy v The Queen, which highlight the necessity for sentencing judges to be aware of and consider the social and personal circumstances of the offender. The court determined that the sentencing judge failed to appropriately weigh these factors, leading to an inappropriate sentence. Consequently, the appeal was allowed, and the matter was remitted to the sentencing judge for reconsideration.
The High Court granted the appellant's application for an extension of time to appeal, finding that the appellant had provided a sufficient explanation for the delay. The court accepted that the appellant needed time to receive transcripts, obtain advice from counsel, secure Legal Aid approval, and prepare submissions. The court also found that there was an arguable case on appeal, which justified the extension of time. The matter was remitted to the sentencing judge for a new sentencing hearing that appropriately considered the appellant's background of social disadvantage.