Hunt v The Queen - [2019] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hunt v R [2019] NSWCCA 118
Hearing dates: 1 May 2019
Decision date: 12 June 2019
Before: Hoeben CJ at CL at [1];
R A Hulme J at [57];
Davies J at [58]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The sentence imposed by his Honour Judge Colefax SC on 11 December 2017 is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment for 8 years with a non-parole period of 6 years, commencing 7 February 2017. The non-parole period is to expire on 6 February 2023 and the balance of term on 6 February 2025.

Catchwords: CRIMINAL LAW – sentence appeal – two counts of perjury and one of threatening witness to withhold evidence – House v The King error in assessment of objective seriousness of Count 1 – need to re-sentence – need to take into account physical and mental health of applicant – need to reduce indicative sentence for Count 1 – need to reduce aggregate sentence.
Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Crimes Act 1900 (NSW) – ss 322(a), 327(1), 328
Cases Cited: Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41
House v The King [1936] HCA 40; 55 CLR 499
R v Obeid (No 12) [2016] NSWSC 1815
State of New South Wales v Hunt [2014] NSWCA 47
Vandeventer v R [2013] NSWCCA 33
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Robert Bruce Hunt – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Coady – Applicant
B Hatfield – Respondent Crown
Solicitors:
Younes + Espiner Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/0607732014/123379
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 December 2017

Before:

Colefax SC DCJ

File Number(s):

2014/060773
2014/123379

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by his Honour Judge Colefax SC in the District Court at Parramatta on 11 December 2017.

The offences for which the applicant was sentenced were:

Count 1 – Perjury with intent to procure acquittal, contrary to s 328 of the Crimes Act 1900 (NSW) (Crimes Act) which carries a maximum penalty of imprisonment for 14 years.

Count 5 – Perjury contrary to s 327(1) of the Crimes Act, which carries a maximum penalty of imprisonment for 10 years.

Count 6 – Threaten witness to withhold evidence contrary to s 322(a) of the Crimes Act, which carries a maximum penalty of imprisonment for 10 years.

The sentencing judge imposed an aggregate sentence of imprisonment for 12 years, commencing 7 February 2017 and concluding 6 February 2029 with a non-parole period of 9 years to conclude on 6 February 2026.
The indicative sentences were:

Count 1 – 10…

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 The Queen

Details

AGLC: Hunt v The Queen [2019] NSWCCA 118
Case: [2019] NSWCCA 118
Decision Date: 12 June 2019

CaseChat Overview and Summary

The case of Hunt v The Queen involved an appeal against a sentence imposed for two counts of perjury and one count of threatening a witness to withhold evidence. The appellant argued that the sentencing judge had erred in assessing the objective seriousness of one of the counts of perjury, which necessitated a re-sentencing process. The appeal was heard by the High Court of Australia.

The central legal issues before the court were whether the sentencing judge had erred in the assessment of the objective seriousness of the first count of perjury, and if so, what impact this had on the aggregate sentence. Additionally, the court had to consider whether the sentencing judge had appropriately taken into account the appellant's physical and mental health in the sentencing process. The appeal hinged on the principle that any error in the assessment of objective seriousness requires a re-sentencing, and the need to ensure the final sentence reflects a fair balance considering all mitigating factors.

In its judgment, the court found that there had indeed been an error in the assessment of the objective seriousness of the first count of perjury, aligning with the principle established in House v The King. The court held that this error necessitated a re-assessment of the indicative sentence for that count, and subsequently, a re-assessment of the aggregate sentence. The court emphasised the importance of considering the appellant's physical and mental health in the sentencing process. Based on these findings, the court concluded that the aggregate sentence should be reduced to reflect a fair and balanced outcome.

The court's final orders included a reduction of the indicative sentence for the first count of perjury, a re-assessment of the aggregate sentence, and a final sentence that appropriately took into account the appellant's physical and mental health. The appeal was allowed, and the case was remitted to the original sentencing court for re-sentencing in accordance with the High Court's directions.

Orders