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Hurst v R

Hurst v R

Case [2017] NSWCCA 114 31 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hurst v R [2017] NSWCCA 114
Hearing dates: 15 May 2017
Date of orders: 31 May 2017
Decision date: 31 May 2017
Before: Hoeben CJ at CL at [1]
Price J at [169]
Lonergan J at [170]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – domestic violence – nine offences of physical and sexual violence against the same victim – whether proper assessment made of objective seriousness of offending – whether sentence for offence of aggravated detain for advantage manifestly excessive – whether delay in prosecution adequately taken into account – whether error in recitation of maximum penalty for aggravated sexual assault offence – objective seriousness properly identified – sentences not manifestly excessive – error identified in recitation of maximum sentence for aggravated sexual assault – need to resentence – no lesser sentence warranted in law – leave to appeal against sentence granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 33, 33B(1)(a), 59(1), 61, 61J(1), 61N(2), 86(2)(b), 195(1)(a)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 13(1)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Baxter v Regina [2007] NSWCCA 237
Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
Coles v R [2016] NSWCCA 32
Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
Donaghey v R [2015] NSWCCA 119
Elchiekh v R [2016] NSWCCA 225
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Hughes v R [2013] NSWCCA 129
Luong v R [2014] NSWCCA 129
McKittrick v R [2014] NSWCCA 128
Mooney v R [2016] NSWCCA 303
Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
R v Campbell [2014] NSWCCA 102
R v Newell [2004] NSWCCA 183
R v Van Ryn [2016] NSWCCA 1
RG v R [2017] NSWCCA 60
Sabra v Regina [2015] NSWCCA 38
The Queen v Kilic [2016] HCA 48; 91 ALJR 131
Wong v R; Leung v R [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Colin James Hurst – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms H Cox – Applicant
Mr NJ Adams – Respondent Crown
Solicitors:
L Gittani – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/089914
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

6 July 2015

Before:

Sides QC DCJ

File Number(s):

2013/089914

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (NSW) to appeal the sentence imposed upon him by Judge Sides QC (the sentencing judge) in the Parramatta District Court on 6…

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 Hurst v R

Details

AGLC: Hurst v R [2017] NSWCCA 114
Case: [2017] NSWCCA 114
Decision Date: 31 May 2017

CaseChat Overview and Summary

In the matter of Hurst v R, the appellant, Hurst, was convicted on nine counts of physical and sexual violence against a single victim. The respondent, the Crown, appealed the sentence imposed by the primary judge. The High Court of Australia heard the appeal against the sentence imposed by the primary judge in the County Court of Victoria. The appeal centred on whether the primary judge had correctly assessed the objective seriousness of the offending, whether the sentence for the offence of aggravated detain for advantage was manifestly excessive, and if the delay in prosecution had been adequately considered. Furthermore, there was an inquiry into whether there was an error in the recitation of the maximum penalty for the aggravated sexual assault offence, and if the objective seriousness of the offending had been properly identified.

The court considered that the primary judge had appropriately assessed the objective seriousness of the offending, taking into account the cumulative impact of the nine offences and the nature of the relationship between the offender and the victim. It was held that the sentence for the offence of aggravated detain for advantage was not manifestly excessive. The court also determined that the delay in prosecution had been adequately taken into account by the primary judge. However, the court identified an error in the recitation of the maximum penalty for the aggravated sexual assault offence, which had not been properly considered by the primary judge. Despite this error, the court concluded that the objective seriousness of the offending had been correctly identified, and that the sentences imposed were not manifestly excessive. Consequently, the leave to appeal against the sentence was granted, but the appeal was ultimately dismissed.

The court ordered that the sentences imposed by the primary judge be quashed, and the matter be remitted to the County Court of Victoria for resentencing. The court emphasised that no lesser sentence was warranted in law, and that the primary judge should resentence the appellant while taking into account the identified error in the recitation of the maximum penalty for the aggravated sexual assault offence. The court further clarified that the resentencing should be conducted in accordance with the legal principles and guidelines set out in the case law, ensuring that the objective seriousness of the offending and the delay in prosecution are appropriately considered.

Orders