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Hurkmans v The King

Hurkmans v The King

Case [2024] NSWCCA 126 12 July 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hurkmans v R [2024] NSWCCA 126
Hearing dates: 24 April 2024
Date of orders: 12 July 2024
Decision date: 12 July 2024
Before: Davies J at [1]
N Adams J at [52]
R A Hulme AJ at [65]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed in the District Court on 25 November 2022.
(4) In lieu sentence the applicant to imprisonment for 10 years commencing 11 March 2021 and expiring 10 March 2031 with a non-parole period of 6 years expiring 10 March 2027.

Catchwords:
CRIME – appeals – appeal against sentence – two drug and proceeds of crime offences – possess commercial quantity of cocaine – where primary issue before the sentencing judge was non-exculpatory duress – duress found in favour of the applicant – moral culpability reduced by reason of duress – whether sentencing judge required to separately consider mental health – applicant diagnosed with persistent depressive disorder and trauma/stress related disorder – connection between mental health and offending raised in applicant’s written and oral submissions – held sentencing judge overlooked evidence concerning mental health – failed to consider the issue of moral culpability by reason of mental health – direct nexus between applicant’s mental health and the offending – appeal allowed – applicant resentenced to a lesser sentence

Legislation Cited:
Crimes Act 1914 (Cth) s 16A
Criminal Code Act 1995 (Cth) ss 307.5, 400.4

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cherdchoochatri v R [2013] NSWCCA 118
DB v R [2023] NSWCCA 323
Craft v R [2021] NSWCCA 131
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Lee v R [2016] NSWCCA 146
Masters v R [2019] NSWCCA 233
Ney v R [2023] NSWCCA 252
Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365
Whipp v R [2024] NSWCCA 79
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
YM v R [2023] NSWCCA 75

Texts Cited:
Nil

Category: Principal judgment
Parties: Jake Laurens Hurkmans (Applicant)
The King (Respondent)
Representation:
Counsel:
T Game SC and R McMahon (Applicant)
A Williams (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/69961
Publication restriction: Suppression and non-publication orders of Traill DCJ made on 15 September 2022 remain unchanged.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 November 2022

Before:

Traill DCJ

File Number(s):

2021/69961

Judgment

DAVIES J: The applicant pleaded in the Local Court to two offences as follows:

Sequence 4: Possess commercial quantity of border controlled drug contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is life imprisonment and/or 7500 penalty units.

Sequence 5: Engage in…

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 Hurkmans v The King

Details

AGLC: Hurkmans v The King [2024] NSWCCA 126
Case: [2024] NSWCCA 126
Decision Date: 12 July 2024

CaseChat Overview and Summary

The appeal in Hurkmans v The King concerns a case where the applicant was convicted for possessing a commercial quantity of cocaine and for proceeds of crime offences. The appeal was against the sentence imposed by the sentencing judge. The applicant argued that the sentencing judge overlooked evidence concerning his mental health, which had a direct nexus to the offending. Specifically, the applicant had been diagnosed with persistent depressive disorder and a trauma/stress related disorder. The applicant claimed that the sentencing judge failed to consider the issue of moral culpability by reason of mental health and did not adequately address the connection between his mental health and the offending.

The primary legal issue before the court was whether the sentencing judge was required to separately consider the applicant's mental health and its impact on his moral culpability. The court had to determine whether the sentencing judge overlooked the evidence concerning the applicant's mental health and whether this oversight affected the assessment of moral culpability. The applicant argued that his mental health issues should have been taken into account as they contributed to his offending, and the sentencing judge failed to do so.

In assessing the appeal, the court found that the sentencing judge indeed overlooked the evidence concerning the applicant's mental health. The court concluded that this oversight affected the assessment of moral culpability, as the mental health issues had a direct nexus to the offending. Consequently, the court held that the sentencing judge failed to consider the issue of moral culpability by reason of mental health. As a result, the appeal was allowed, and the applicant was resentenced to a lesser sentence, reflecting the impact of his mental health on his offending.

Orders