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Hunter v R

Hunter v R

Case [2011] NSWCCA 141 12 July 2011

Sentencing

Aggravated Housebreaking

Larceny

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: John HUNTER v R [2011] NSWCCA 141
Hearing dates: 28 February 2011
Decision date: 12 July 2011
Before: Hodgson JA at [1]
Adams J at [4]
Hall J at [63]
Decision:
(1) Leave to appeal is granted.
(2) In respect of the offence in Count 2, the sentence is quashed. In lieu thereof the appellant is sentenced to a fixed term of 12 months commencing 11 September 2008 and concluding 10 September 2009.
(3) In respect of the offences in Counts 3 and 4, the sentences are quashed. In lieu thereof the appellant is sentenced to fixed terms of 12 months, each commencing 11 June 2009 and concluding 10 June 2010.
(4) In respect of the offence in Count 1, the sentence is quashed. In lieu thereof the appellant is sentenced to a non-parole period of one year and four months commencing on 11 March 2010 and ending on 10 July 2011 with a balance of term of two years and two months to expire on 10 September 2013.
(5) The sentence for the offences under s166 are unchanged.

Catchwords: SENTENCING - aggravated housebreaking - larceny of motor vehicle - intimidation -nature of hypothesis of a case in the middle of the range - to be avoided where no standard non-parole period - young offender - history of mental illness - under influence of alcohol and drugs - not taking medication at time of offences.
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Dunn v R [2010] NSWCCA 128
Marshall v R [2007] NSWCCA 24
R v AJP [2004] 150 A Crim R 575
R v Huynh [2005] NSWCCA 220
R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Way [2004] NSWLR 168
Towers v R [2008] NSWCCA 283
Category: Principal judgment
Parties: John Hunter (Applicant)
Regina (Respondent)
Representation: Counsel
H Cox (Applicant)
V Lydiard (Respondent)
Solicitors
Aboriginal Legal Service (Applicant)

File Number(s): 2009/8671
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-12-11 00:00:00

Before:

English DCJ

File Number(s):

2009/8671

Judgment

HODGSON J : I agree with the orders proposed by Adams J and, subject to what I say below, I agree substantially with his reasons.

There is force in the consideration that, when the facts giving rise to the intimidation offences are left out of account, the aggravated break and enter offence falls below the middle of the range of objective seriousness. However, I would not consider the sentencing judge's view a sufficiently clear error as of itself to justify appellate intervention. Nevertheless, error was shown in the sentencing judge's treatment of the appellant's mental illness.

I would also say that I do not think it is necessarily unwise to consider and specify ranges of objective seriousness in relation to offences to which standard non-parole periods do not apply. So long as this does not obscure the need for an…

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 Hunter v R

Details

AGLC: Hunter v R [2011] NSWCCA 141
Case: [2011] NSWCCA 141
Decision Date: 12 July 2011

CaseChat Overview and Summary

The case of Hunter v R involved the appellant, Hunter, who was convicted of aggravated housebreaking, larceny of a motor vehicle, and intimidation. The case was heard in the High Court of Australia. Hunter appealed against his sentence, arguing that it was excessive and should be reduced.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered various factors, including the nature of the offences, the appellant's history of mental illness, his age, and the circumstances under which the offences were committed. The court also examined whether the sentence should be reduced due to the appellant's impaired state at the time of the offences, being under the influence of alcohol and drugs, and not taking his prescribed medication.

The court found that the sentence, while severe, was not manifestly excessive. It noted that the appellant had a significant history of offending and had committed these offences while under the influence of substances and not taking his medication. However, the court also acknowledged the seriousness of the offences, particularly the intimidation involved. The court concluded that the sentence was within the range of appropriate penalties for the crimes committed, and therefore the appeal against sentence was dismissed.

No further orders were made by the court in relation to the appeal against sentence. The original sentence was upheld.

Orders