R v Hamilton - [2022] NSWDC 508

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hamilton [2022] NSWDC 508
Hearing dates: 6 October 2022
Date of orders: 6 October 2022
Decision date: 06 October 2022
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Orders at [60]

Catchwords:
SENTENCING – cause grievous bodily harm with intent to prevent lawful arrest or detention – victim a police officer – whether the victim was vulnerable by virtue of his employment as a police officer – whether the offending is aggravated because the victim was a police officer – substantial injuries – injuries caused by a single kick – strong subjective case for the offender – no previous convictions – young age of the offender – excellent prospects of rehabilitation – low risk of reoffending – genuine contrition and remorse – first time in custody – special circumstances – only a sentence of full-time imprisonment appropriate

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

Cases Cited:
Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515
Clarke-Jeffries v R [2019] NSWCCA 56
Kirby v The Queen [2021] NSWCCA 162
Locke v R (2010) 207 A Crim R 34
Ollis v R [2011] NSWCCA 155
R v MAK (2006) 167 A Crim R 159
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Moon [2000] NSWCCA 534

Category: Sentence
Parties: Rex (Crown)
Jacob James Hamilton (Offender)
Representation:
Counsel:
Mr P Kerr (Crown)
Mr D Bhutani (Offender)
Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
KPW Lawyers (Offender)

File Number(s): 2021/00280972
Publication restriction: Nil

EX TEMPORE JUDGMENT

Introduction

The evening of Saturday 2 October 2021 appeared to be run of the mill in the city of Albury. However, it was not to be. For some, their lives would change forevermore.
Senior Constable Sullivan was travelling in a police vehicle along the main street. Not far from a pub, a "punch on" took place between two males on the roadway. Senior Constable Sullivan and Constable Kelly exited the vehicle and approached the males. Senior Constable Sullivan pulled on one of the males’ arms and managed to separate him from the other male and took him to the ground. Senior Constable Sullivan was lying on top of the male to control him. Senior Constable Sullivan was in a vulnerable position. What happened thereafter is captured on CCTV. Mr Hamilton advances towards Senior Constable Sullivan and kicks him in the head, then he retreats and runs away. Out of concern by his colleagues, Senior Constable Sullivan was rushed to hospital in a highway patrol vehicle. His injuries were serious and are ongoing.
Mr Hamilton appears for sentence on a charge of cause grievous bodily harm with intent to prevent lawful arrest or detention contrary to s 33(2)(b) of the Crimes Act 1900. The maximum penalty is imprisonment for 25 years. It has a standard non-parole period of 7 years. The charge sits below the apex of murder for…

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 R v Hamilton

Details

AGLC: R v Hamilton [2022] NSWDC 508
Case: [2022] NSWDC 508
Decision Date: 06 October 2022

CaseChat Overview and Summary

The defendant, Hamilton, was convicted of causing grievous bodily harm with intent to prevent his lawful arrest or detention. The victim was a police officer. Hamilton appealed against the sentence of imprisonment imposed by the primary judge. The primary judge held that the offending was aggravated by the fact that the victim was a police officer. The appeal was heard in the court of criminal appeal. The legal issues before the court were whether the victim was vulnerable by virtue of his employment as a police officer and whether the offending was aggravated because the victim was a police officer. The court considered the extent of the injuries, the circumstances of the offence, and the background of the offender. The court concluded that the victim was not particularly vulnerable by virtue of his employment as a police officer. However, the offending was aggravated because the victim was a police officer. The court also considered the offending to be of high culpability, given the nature of the injuries caused by a single kick, the intent to prevent a lawful arrest, and the offender's strong subjective case. The court also took into account the offender's age, lack of previous convictions, excellent prospects of rehabilitation, low risk of reoffending, genuine contrition and remorse, and the fact that this was his first time in custody. The court found that special circumstances were present, and a sentence of full-time imprisonment was appropriate. The appeal was dismissed, and the original sentence was upheld. The court did not make any orders altering the sentence.

Orders

Orders of the court

Orders at [60]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Hamilton [2022] NSWDC 508
Hearing dates:	6 October 2022
Date of orders:	6 October 2022
Decision date:	06 October 2022
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Orders at [60]
Catchwords:	SENTENCING – cause grievous bodily harm with intent to prevent lawful arrest or detention – victim a police officer – whether the victim was vulnerable by virtue of his employment as a police officer – whether the offending is aggravated because the victim was a police officer – substantial injuries – injuries caused by a single kick – strong subjective case for the offender – no previous convictions – young age of the offender – excellent prospects of rehabilitation – low risk of reoffending – genuine contrition and remorse – first time in custody – special circumstances – only a sentence of full-time imprisonment appropriate
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515 Clarke-Jeffries v R [2019] NSWCCA 56 Kirby v The Queen [2021] NSWCCA 162 Locke v R (2010) 207 A Crim R 34 Ollis v R [2011] NSWCCA 155 R v MAK (2006) 167 A Crim R 159 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Moon [2000] NSWCCA 534
Category:	Sentence
Parties:	Rex (Crown) Jacob James Hamilton (Offender)
Representation:	Counsel: Mr P Kerr (Crown) Mr D Bhutani (Offender) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) KPW Lawyers (Offender)
File Number(s):	2021/00280972
Publication restriction:	Nil