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Hunt v The Queen

Hunt v The Queen

Case [2017] NSWCCA 305 8 December 2017

Sentencing

Mental Illness

Statutory Interpretation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hunt v R [2017] NSWCCA 305
Hearing dates: 9 October 2017
Decision date: 08 December 2017
Before: Basten JA at [1];
Adamson J at [20];
Bellew J at [83]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – sentencing – alleged non-compliance with s 44(2A) of Crimes (Sentencing Procedure) Act 1999 (NSW) by pronouncing non-parole period first – error purely technical and of no operative effect or practical significance

STATUTORY INTERPRETATION – legislative history of s 44(2A) – significance of order in which components of sentence pronounced – formal requirement that aggregate sentence be pronounced first
CRIMINAL LAW – sentencing – alleged failure to regard applicant’s temporary mental illness as a significant mitigating factor – weight to be given to factors to be determined by sentencing judge – no error demonstrated
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45, 48, 50, 53A, 54B; Pt 4, Div 1
Crimes Act 1900 (NSW), ss 61, 93GA, 114,
Firearms Act 1996 (NSW), ss 7, 36
Sentencing Act 1989 (NSW), s 5
Cases Cited: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Aslan v R [2014] NSWCCA 114
Browne v Dunn (1893) 6 R 67
Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224
Eid v R [2008] NSWCCA 255
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Musgrove v R [2007] NSWCCA 21; (2007) A Crim R 424
Ngati v R [2014] NSWCCA 125
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Cramp [2004] NSWCCA 264
R v GDR (1994) 35 NSWLR 376
R v Gower (1991) 56 A Crim R 115
R v Hampton (1998) 44 NSWLR 729
R v Smith [2005] NSWCCA 19
The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131
Wilmot v R [2007] NSWCCA 278
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010, 27866-27871
Category: Principal judgment
Parties: Dennis Henry Hunt (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC/A Bonnor (Applicant)
T Smith (Respondent)
Solicitors:
Sayad & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/33493
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 December 2016

Before:

Lerve DCJ

File Number(s):

2016/33493

Judgment

BASTEN JA: I agree with Adamson J that the applicant should have leave to appeal against the aggregate sentence imposed in the District Court by Lerve DCJ. I also agree that the appeal should be dismissed.
The first ground, alleging a failure to give proper weight to the applicant’s “mental condition”, should be dismissed for the reasons given by Adamson J. With respect to ground 2, concerning the alleged error in setting the sentence, I would dismiss the…

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 [2017] NSWCCA 305
Case: [2017] NSWCCA 305
Decision Date: 08 December 2017

CaseChat Overview and Summary

The case of Hunt v The Queen was heard by the Supreme Court of New South Wales, where the appellant, Hunt, challenged his criminal sentence. The dispute centered on two main issues: the sequence in which the non-parole period was pronounced, and the consideration of Hunt's temporary mental illness as a mitigating factor. The appellant contended that the trial judge erred by announcing the non-parole period before the aggregate sentence, which allegedly breached the statutory requirements under section 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Additionally, Hunt argued that his mental illness was not adequately considered as a mitigating factor during sentencing.

The court considered whether the trial judge's departure from the formal requirement of pronouncing the aggregate sentence first constituted a significant error. The court examined the legislative history and purpose of section 44(2A) to determine if the order in which the sentence components were pronounced had any practical significance. The court also assessed whether the judge appropriately balanced the mitigating factor of Hunt's mental illness against other sentencing considerations. The court determined that the error in the sequence of pronouncements was purely technical and did not affect the fairness or legality of the sentence. Furthermore, the court found that the sentencing judge had appropriately weighed the mitigating factor of mental illness, and no error was demonstrated in this regard.

Consequently, the court upheld the original sentence, ruling that the technical error in the sequence of pronouncements did not warrant a new sentencing hearing. The court also rejected Hunt's claim that his mental illness was inadequately considered, finding that the weight given to mitigating factors was within the discretion of the sentencing judge. The appeal was dismissed, and the original sentence remained in place.

Orders