Hyde v R - [2001] TASSC 50

[2001] TASSC 50

CITATION: Hyde v R [2001] TASSC 50

PARTIES:  HYDE, Dwayne Andrew
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 136/1999
DELIVERED ON:  1 May 2001
DELIVERED AT:  Hobart
HEARING DATES:  7 March 2001
JUDGMENT OF:  Crawford, Slicer and Blow JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - First offenders - Generally - Whether 7 years' imprisonment manifestly excessive for committing an unlawful act intended to cause bodily harm and an associated attempted aggravated armed robbery - 19 year old first offender who made admissions and early pleas of guilty.

Pavlic v R (1995) 5 Tas R 186; Jeffrey v R 69/1979; Inkson v R (1996) 6 Tas R 1; R v Mills [1998] 4 VR 235, applied.
Aust Dig Criminal Law [852]

REPRESENTATION:

Counsel:
           Appellant:  R A Browne
           Respondent:  T J Ellis
Solicitors:
           Appellant:  Legal Aid Commission
           Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 50
Number of Paragraphs: 13

Serial No 50/2001
File No CCA 136/1999

DWAYNE ANDREW HYDE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
1 May 2001

Orders of the Court

Appeal allowed.

Sentence of 7 years' imprisonment from 19 October 1999, set aside.

Substituted sentence of 5 years' imprisonment from 19 October 1999.

Serial No 50/2001
File No CCA 136/1999

DWAYNE ANDREW HYDE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
1 May 2001

On 8 December 1999, the appellant was sentenced to 7 years' imprisonment from 19 October 1999, when his custody commenced, upon his pleas of guilty to one count of attempted aggravated armed robbery, contrary to the Criminal Code, ss240(4) and 299, and one count of committing an unlawful act intended to cause bodily harm, contrary to s170(1). He appealed upon one ground, that the sentence was manifestly excessive in all the circumstances.

At about 2.40 on the afternoon of 15 October 1999, the appellant left where he was living at Devonport for the purpose of obtaining money, so that he could purchase drugs. To that end, he took with him a claw hammer. He went to a corner store and entered it. The only person inside was its proprietor, Mrs Jennifer Crisp, aged 35 years. He engaged her in conversation and ordered $2 worth of cooked chips. She placed the order in a deep fryer and then answered the telephone. He went outside the shop for a brief moment and returned to the counter, Mrs Crisp having completed the telephone call.

While Mrs Crisp was attending to some paperwork at the counter, he struck her to the head with the hammer, with a number of blows. She fell to the floor unconscious, whereupon he went behind the counter to the cash register, intending to take money from it. However, he was unable to open it and he fled from the store and ran…

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 Hyde v R

Details

AGLC: Hyde v R [2001] TASSC 50
Case: [2001] TASSC 50
Decision Date: 1 May 2001

CaseChat Overview and Summary

In this case, the appellant, Dwayne Andrew Hyde, was convicted of one count of attempted aggravated armed robbery and one count of committing an unlawful act intended to cause bodily harm. The appellant appealed against his sentence of seven years' imprisonment, arguing that it was manifestly excessive. The Court of Criminal Appeal in Tasmania heard the appeal and considered the mitigating factors present in the case, including the appellant's admissions and speedy plea of guilty, his youthfulness, and the fact that he was a first offender. The Court found that the sentence of imprisonment for seven years was manifestly excessive and substituted a sentence of five years' imprisonment, backdated to commence on the date the appellant went into custody.

The legal issue before the Court was whether the sentence of seven years' imprisonment was manifestly excessive in the circumstances of the case. The Court considered the mitigating factors present in the case and found that the sentence was indeed manifestly excessive. The Court noted that the sentence was at the top of the range of sentences usually imposed for crimes involving breaches of s170 and above what would usually be imposed for aggravated armed robbery actually committed, rather than merely attempted. The Court also noted that the appellant's admissions and speedy plea of guilty, his youthfulness, and the fact that he was a first offender were all mitigating factors that demanded the imposition of a sentence of less severity. The Court concluded that the sentence of seven years' imprisonment was an exceptionally long period of incarceration with respect to a young first offender and not one appropriate in this case.

Orders