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Hoskins v R

Hoskins v R

Case [2020] NSWCCA 18 21 February 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hoskins v R [2020] NSWCCA 18
Hearing dates: 10 February 2020
Date of orders: 10 February 2020
Decision date: 21 February 2020
Before: Basten JA at [1];
R A Hulme at [25];
N Adams J at [82]
Decision:
1. Grant leave to appeal from the sentence imposed in the District Court at Wollongong on 14 June 2019.

2. Allow the appeal in part and set aside order (1) being a sentence of imprisonment for 3 years with a non-parole period of 1 year, 6 months, commencing on 7 September 2018 for the offence contrary to s 52AB(1) of the Crimes Act 1900 (NSW).

3. Resentence the offender to a term of imprisonment comprising a non-parole period of 1 year and 3 months to date from 7 September 2018, and taken to have expired on 6 December 2019, with a balance of term of 1 year expiring on 6 December 2020.

4. Note that the offender is entitled to be released forthwith subject to a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

5. Pursuant to s 206A(5) of the Road Transport Act 2013 (NSW), order that the 12 months period of disqualification be directed to commence at the expiration of the non-parole period, namely on 6 December 2019, and expire on 5 December 2020.
6. All other aspects of the sentencing orders of the District Court of 14 June 2019 are confirmed.
Catchwords:
CRIME – Appeals – Appeal against sentence – application of Bugmy principles where offender now living prosocial life – impact of disadvantaged and dysfunctional background long-lasting and continuing – link between background and poor decision-making consistent with offending

CRIME – Appeals – Appeal against sentence – failure to take into account a relevant consideration – remorse – no explicit submission but concession by prosecutor and strong basis for finding – error established
TRAFFIC LAW AND TRANSPORT – Traffic Law – licensing of drivers – disqualification – effect of imprisonment on licence disqualification
Legislation Cited: Crimes Act 1900 (NSW), ss 52A, 52AB
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(3)(k), 22, 25D(2)(a), Pt 3 Div 1A
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Procedure Act 1986 (NSW), s 166
Road Rules 2014 (NSW), r 59(1)
Road Transport Act 2013 (NSW), ss 54(3)(a), 205(2)(d), 206A, 207A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
House v The King (1936) 55 CLR 499; [1936] HCA 40
Imbornone v R [2017] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152
R v Jurisic (1998) 45 NSWLR 209
R v Pullen [2018] NSWCCA 264
R v Shashati [2018] NSWCCA 167
R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

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 Hoskins v R

Details

AGLC: Hoskins v R [2020] NSWCCA 18
Case: [2020] NSWCCA 18
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of Hoskins v R involved an appellant who was appealing against a sentence imposed by the lower court. The appellant had a history of criminal behaviour and a disadvantaged background, which played a significant role in the court's consideration of his case. The appeal was heard by the High Court of Australia, which was required to assess whether the sentence was appropriate given the appellant's background and the principles established in the Bugmy case.

The primary legal issue before the court was whether the sentence imposed was too severe, given the appellant's background and the principles outlined in the Bugmy case. Additionally, the court had to consider whether the sentencing judge had failed to take into account the appellant's remorse, which was conceded by the prosecutor. The court also needed to address whether the period of licence disqualification imposed was appropriate in light of the appellant's imprisonment.

The High Court found that the sentence imposed was too severe, given the appellant's disadvantaged and dysfunctional background. The court acknowledged the significant impact this background had on the appellant's decision-making, which was consistent with his offending behaviour. The court also found that there was a strong basis for finding that the appellant had shown remorse, even though it was not explicitly submitted. Furthermore, the court determined that the period of licence disqualification was appropriate, taking into account the appellant's imprisonment. The court ultimately allowed the appeal and reduced the sentence imposed by the lower court.

Orders