Hunt v R

Case [2021] NSWCCA 192 18 August 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hunt v R [2021] NSWCCA 192
Hearing dates: 18 June 2021
Date of orders: 18 August 2021
Decision date: 18 August 2021
Before: McCallum JA at [1];
Rothman J at [2];
Wright J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed by the District Court on 13 July 2020 is quashed.
(4) In lieu, the applicant is sentenced to an aggregate sentence of 9 years and 6 months, commencing on 17 January 2019 and expiring on 16 July 2028, with a non-parole period of 5 years and 8 months expiring on 16 September 2024.
(5) The applicant will first be eligible to be released on parole from 16 September 2024.
(6) Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it is directed that the offences be recorded on the applicant’s criminal record as domestic violence offences.

Catchwords:
CRIME — Appeals — Appeal against sentence — Sexual and other offences — Requirement to take into account pre-sentence custody – Broken periods of pre-sentence custody – Where only second period of pre-sentence custody taken into account by backdating sentence – Whether first period of pre-sentence custody taken into account in relation to all offences – Reasons did not disclose why first period of pre-sentence custody not taken into account by backdating or how that period was taken into account for all offences — Leave to appeal granted — Appeal allowed — Sentence varied

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kliendienst v R [2020] NSWCCA 98
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Argent [2004] NSWCCA 270
R v Howard [2001] NSWCCA 309
R v English [2000] NSWCCA 245
R v Lulham [2016] NSWCCA 287; 263 A Crim R 287
R v Johnson [2005] NSWCCA 186
R v McHugh (1985) 1 NSWLR 588
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
Rodgers v R [2018] NSWCCA 47
Salafia v R [2015] NSWCCA 141
Smith v The Queen (1957) 97 CLR 100; [1957] HCA 3
Wiggins v R [2010] NSWCCA 30

Category: Principal judgment
Parties: Dylan Stephen Hunt (Applicant)
Regina (Crown)
Representation:
Counsel:
T Bicanic (Applicant)
E Wilkins SC (Crown)
Solicitors:
Maksisi Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/167600; 2017/174119
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 July 2020

Before:

Shead SC DCJ

File Number(s):

2017/167600
2017/174119

Judgment

McCALLUM JA: I agree with Wright J.
ROTHMAN J:

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 Hunt v R

Details

AGLC: Hunt v R [2021] NSWCCA 192
Case: [2021] NSWCCA 192
Decision Date: 18 August 2021

CaseChat Overview and Summary

The case of Hunt v R involved the appellant, who had been convicted of multiple sexual and other offences, appealing against the sentence imposed by the Supreme Court of Queensland. The appellant argued that the sentencing judge failed to adequately consider the period of pre-sentence custody when determining the appropriate sentence. The appeal was brought before the Queensland Court of Appeal, which was tasked with assessing whether the sentence was appropriate and whether the trial judge had erred in not adequately considering the pre-sentence custody.

The primary legal issue before the Court of Appeal was whether the trial judge appropriately considered the periods of pre-sentence custody when sentencing the appellant. Specifically, the court had to determine whether the trial judge correctly applied the principle that requires a sentence to be backdated to account for pre-sentence custody. The appellant argued that the trial judge only backdated the sentence to account for the second period of pre-sentence custody, rather than considering the full extent of the pre-sentence custody for all offences. The court was required to consider whether the reasons provided by the trial judge were sufficient to demonstrate that the pre-sentence custody was adequately taken into account and whether the sentence imposed was appropriate.

In its judgment, the Queensland Court of Appeal found that the trial judge's reasons did not adequately explain how the pre-sentence custody was taken into account for all the offences. The court held that the reasons did not disclose why the first period of pre-sentence custody was not taken into account by backdating the sentence or how that period was taken into account in relation to all the offences. The Court of Appeal concluded that the trial judge's failure to properly consider the pre-sentence custody constituted a significant error in the sentencing process. Consequently, the appeal was allowed, and the sentence was varied. The court directed that the sentence should be recalculated to properly account for the full period of pre-sentence custody.

Orders