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Hutchison v The Queen

Hutchison v The Queen

Case [2010] NSWCCA 122 11 June 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HUTCHISON v R [2010] NSWCCA 122

FILE NUMBER(S):
2008/20725

HEARING DATE(S):
22 February 2010

JUDGMENT DATE:
11 June 2010

PARTIES:
Nathan George Hutchison - Applicant
Regina - Crown Respondent

JUDGMENT OF:
Beazley JA Hulme J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/20725

LOWER COURT JUDICIAL OFFICER:
Blackmore DCJ

LOWER COURT DATE OF DECISION:
3 April 2009

COUNSEL:
E Wilson - Applicant
D Arnott SC - Crown Respondent

SOLICITORS:
Aboriginal Legal Service - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Crown Respondent

CATCHWORDS:
CRIMINAL LAW - appeal against stentence - guilty plea to manslaughter - whether Judge overstated severity of applicant's criminal history and took it into account as an aggravating factor - whether error in the assessment of the applicant's prospects of rehabilitation - whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Veen v the Queen (No. 2) (1988) 164 CLR 465
R v McNaughton (2006) 163 A Crim R 381
Tidona v R [2005] NSWCCA 410
R v Aboud [2005] NSWCCA 251
R v Groat [2001] NSWCCA 452
R v Fernando [2002] NSWCCA 28
R v Thomson ; R v Houlton [2000] NSWCCA 309 ; 49 NSWLR 383
R v Mulato [2006] NSWCCA 282
R v Forbes [2005] NSWCCA 377 ; 160 A Crim R 1
R v Troja NSWCCA 16 July 1991
R v Morabito (1992) 62 A Crim R 82
R v Maguire NSWCCA 30 August 1995
R v Forbes [2005] NSWCCA 377
R v Hopley [2008] NSWCCA 105
R v Irvine [2008] NSWCCA 273
R v Greenhalgh [2001] NSWCCA 437
R v Hamilton [2007] NSWSC 452

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/20725
BEAZLEY JA
HULME RS J
LATHAM J
11JUNE 2010

NATHAN GEORGE HUTCHISON v R

Judgment

BEAZLEY JA : I agree with Latham J.
HULME RS J : In this matter I have had the advantage of reading the reasons for judgment of Latham J. I agree with much that her Honour has said, however, there are a few matters with which I disagree. Firstly, I am persuaded that the error made by Blackmore DCJ as to the Applicant’s record probably did influence the sentence his Honour imposed. Having referred to what he perceived the Applicant’s record to be, his Honour referred to that record as “an extraordinary criminal history” observing later that:-
“The maximum penalty for the offence is 25 years imprisonment. In my view the offender had so significantly abandoned responsibility as demonstrated by his commission of the offence, in the context of his prior offending, the sentence must emphasise specific deterrence”.
The error his Honour made concerning the Applicant’s record – of attributing to him almost twice the number of assaults as were on that record, 12 instead of 7 – was substantial. Given the tone of the remarks just quoted, I find it impossible to conclude that…

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 Hutchison v The Queen

Details

AGLC: Hutchison v The Queen [2010] NSWCCA 122
Case: [2010] NSWCCA 122
Decision Date: 11 June 2010

CaseChat Overview and Summary

The case before the court involved the appellant, Hutchison, who had appealed against his sentence following a guilty plea to manslaughter. The sentencing was presided over by a judge who imposed a term of imprisonment with a non-parole period. The appeal was centred on the perceived severity of the sentence and whether the judge had improperly taken into account the applicant's criminal history as an aggravating factor, whether there was an error in the assessment of the applicant's prospects of rehabilitation, and whether the sentence was manifestly excessive.

The legal issues that the court was required to address included the evaluation of whether the judge had overstated the severity of the applicant's criminal history and used it as an aggravating factor in the sentencing. Additionally, the court had to consider whether there was an error in the judge's assessment of the applicant's prospects of rehabilitation, which could have influenced the severity of the sentence imposed. The court also had to determine if the sentence was manifestly excessive in light of the mitigating factors presented by the applicant.

In delivering the judgment, the court examined the sentencing remarks and concluded that the judge had indeed overstated the severity of the applicant's criminal history and used it as an aggravating factor. The court found that there was an error in the assessment of the applicant's prospects of rehabilitation, which contributed to the overall severity of the sentence. Considering these factors, the court determined that the sentence was manifestly excessive. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for re-sentencing.

The final orders of the court were to allow the appeal, set aside the sentence imposed by the trial judge, and remit the matter to the sentencing court for the determination of an appropriate sentence, taking into account the errors identified by the appellate court.

Orders