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Hunter v The Queen

Hunter v The Queen

Case [2020] NSWCCA 285 16 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hunter v R [2020] NSWCCA 285
Hearing dates: 26 October 2020
Date of orders: 16 November 2020
Decision date: 16 November 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Ierace J at [38]
Decision:
(1) Grant leave to appeal against sentence
(2) Dismiss the appeal

Catchwords:
APPEAL – sentence appeal – specially aggravated break and enter – assault occasioning actual bodily harm with intentional wounding – where applicant entered partner’s house with axe – where injury caused to partner and friend – whether sentencing judge engaged in two-tier sentencing – whether Form 1 matter considered appropriately – whether consideration given to remorse – where no error by sentencing judge – where sentence falls at more severe end of statistical range – where appellate intervention not compelled

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
GP v R [2016] NSWCCA 150
Harper v R [2017] NSWCCA 159
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huang v R [2019] NSWCCA 144
KG v R [2012] NSWCCA 10
Medcalf v R [2016] NSWCCA 209
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Campbell [2014] NSWCCA 102

Category: Principal judgment
Parties: Ricky Edward Hunter (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Hickie (Applicant)
K Jeffreys (Respondent)
Solicitors:
Andrew Scali Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/269168
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 July 2019

Before:

English DCJ

File Number(s):

2018/269168

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
HARRISON J: Ricky Edward Hunter seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed on him by her Honour Judge English at the Campbelltown District Court on 24 July 2019. Mr Hunter had pleaded guilty to an offence of specially aggravated break, enter and commit a serious indictable offence, namely assault occasioning actual bodily harm, the circumstances of special aggravation being intentional wounding, contrary to s 112(3) of the Crimes Act 1900. That offence attracts a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. Mr Hunter asked that a charge of common assault against a different victim be taken into account on a Form 1.
Her Honour sentenced Mr Hunter to imprisonment for 6 years commencing on 24 July 2019 with a non-parole period of 4 years expiring on 23 July 2023. Mr Hunter relies upon the following grounds of appeal:

Ground 1: Her Honour erred in law by engaging in two-tier sentencing.

Ground 2: Her Honour erred in considering the Form…

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 The Queen

Details

AGLC: Hunter v The Queen [2020] NSWCCA 285
Case: [2020] NSWCCA 285
Decision Date: 16 November 2020

CaseChat Overview and Summary

Hunter, the applicant, appealed against his sentence for breaking and entering with intent to commit an indictable offence, and assault occasioning actual bodily harm with intentional wounding. The Crown, represented by The Queen, was the respondent in the appeal to the High Court of Australia. The applicant had entered the house of his partner armed with an axe and caused injuries to both his partner and her friend. The applicant sought to appeal on the basis that the sentencing judge had engaged in a two-tier sentencing process, failed to consider a Form 1 matter appropriately, and did not adequately consider his remorse. The Crown argued that the sentencing judge had not erred in any way and that the sentence was within the statistical range and did not warrant appellate intervention.

The central legal issues before the court were whether the sentencing judge had indeed engaged in a two-tier sentencing process, failed to consider a Form 1 matter appropriately, and did not adequately consider the applicant's remorse. The court needed to determine if these alleged errors warranted an appeal against the sentence. Additionally, the court had to consider if the sentence was within the appropriate statistical range and whether the sentence was so severe that appellate intervention was necessary.

The court found that the sentencing judge had not engaged in a two-tier sentencing process, had considered the Form 1 matter appropriately, and had taken into account the applicant's remorse. The sentence, while at the more severe end of the statistical range, did not compel appellate intervention. The court held that there was no error in the sentencing judge's approach and therefore dismissed the appeal. The original sentence was affirmed, and no further orders were made.

Orders