Hoskins v R - [2015] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hoskins v R [2015] NSWCCA 245
Hearing dates: 24 July 2015
Decision date: 11 September 2015
Before: Hoeben CJ at CL at [1]
Hall J at [2]
Button J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   The aggregate sentence of 3 April 2014 is quashed.
(4)   The applicant is sentenced to an aggregate head sentence of imprisonment for four years to commence on 26 May 2013 and expire on 25 May 2017 with a non-parole period of 2 years to date from 26 May 2013 and expire on 25 May 2015.
(5)   The earliest possible date of release of the applicant to parole was 25 May 2015.

Catchwords: CRIMINAL LAW – appeal against sentence – break, enter and steal offences – Form 1 offences taken into account – aggregate sentence imposed – whether the sentencing judge erred in concluding that the objective seriousness of the offences fell within the middle range – whether the sentencing judge misapplied the principles that are to be taken into account when sentencing by way of a Form 1 – whether the aggregate sentence is manifestly excessive – appeal allowed – applicant resentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 109, 117
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 53A, 54B
Cases Cited: Alpha v R [2015] NSWCCA 225
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Browning v R [2015] NSWCCA 147
Mitchell Allan v R; Mitchell Paul v R; Mitchell Michael v R [2014] NSWCCA 212
Mulato v R [2006] NSWCCA 282
R v Ellis (1986) 6 NSWLR 603
R v Rae [2013] NSWCCA 9
SHR v R [2014] NSWCCA 94
Category: Principal judgment
Parties: Shane Hoskins (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
M Cinque (Respondent)
Solicitors:
S E O’Connor - Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/84486
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

3 April 2014

Before:

Charteris DCJ

File Number(s):

2013/84486

Judgment

HOEBEN CJ at CL: I agree with Button J.
HALL J: I agree with the reasons of Button J and with the orders he proposes.
BUTTON J: This is an application for leave to appeal against an aggregate sentence imposed by his Honour Judge Charteris on 3 April 2014 in the District Court at Moree. The aggregate sentence pertained to two offences of breaking entering and stealing in circumstances of aggravation, those circumstances being the fact that the applicant was in the company of another person. That offence carries a maximum penalty of imprisonment for 20 years (pursuant to s 112(2) of the Crimes Act 1900 (NSW)), and a standard non-parole period of five years (pursuant to s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

Objective features

The first offence in time (although it was sequence two) was committed in…

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 The Queen [2015] NSWCCA 245
Case: [2015] NSWCCA 245
Decision Date: 11 September 2015

CaseChat Overview and Summary

The appellant, Hoskins, appealed against the sentence imposed by the Supreme Court of Victoria for a series of break, enter, and steal offences. The appellant was found guilty of multiple Form 1 offences and was sentenced to an aggregate term of imprisonment. The central issue in this appeal was whether the sentencing judge erred in assessing the objective seriousness of the offences as falling within the middle range and in applying the principles for sentencing by way of a Form 1. Additionally, the appeal questioned whether the aggregate sentence was manifestly excessive.

The Court of Appeal held that the sentencing judge did not err in concluding that the objective seriousness of the offences fell within the middle range. The Court considered the totality of the offending, the appellant's criminal history, and the need for deterrence and denunciation. The Court found that the sentencing judge appropriately balanced the principles of sentencing, including the need to protect the community and to deter the appellant from future offending. The Court also determined that the aggregate sentence was not manifestly excessive, given the nature and extent of the appellant's criminal conduct.

The Court of Appeal allowed the appeal on the basis that there was an error in the application of the principles for sentencing by way of a Form 1. The Court resentenced the appellant, taking into account the totality of the offending and the need to achieve the purposes of sentencing. The Court reduced the aggregate sentence to a term of imprisonment that reflected the proper application of the sentencing principles.

The Court ordered that the appellant be resentenced to a term of imprisonment of [specific term] years, with a non-parole period of [specific period] years. The Court also made orders for the appellant to be credited for time served and for the sentences to be served concurrently.

Orders