R v Hamilton - [2018] NSWDC 532

District Court

New South Wales

Medium Neutral Citation: R v Hamilton [2018] NSWDC 532
Hearing dates: 19 April 2018
Date of orders: 19 April 2018
Decision date: 19 April 2018
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraph [41]

Catchwords: CRIME — Property offences — Break and enter — Circumstances of aggravation — Police pursuit — Use offensive weapon — Joint criminal enterprise
SENTENCING — Young adult offender — offences as juvenile — background of disadvantage
Legislation Cited: Crimes Act
Crimes (Sentencing Procedure) Act
Cases Cited: BP v The Queen [2010] NSWCCA 159
Bugmy (2013) 249 CLR 571
Bullock v The Queen [2016] NSWCCA 131
R v Fernando (1992) 76 A Crim R 58
Hayek v R [2016] NSWCCA 126
Mack v R [2010] NSWCCA 269
R v Henry (1999) 46 NSWLR 346
R v Ponfield (1999) 48 NSWLR 32
TL v R [2017] NSWCCA
Category: Sentence
Parties: Tighreak Trevor Hamilton
Director of Public Prosecutions
Representation:
Counsel:
Solicitors:
S Dogulin (Hamilton)
K Miller (DPP)

File Number(s): 2017/000063882016/00006393

SENTENCE

HIS HONOUR: At the outset I think it is appropriate to note that this is a particularly sad case about a very young indigenous man who has had a very difficult short life and has had in recent years very frequent contact with the criminal justice system. It is the type of case which highlights the connection between social deprivation and crime and the need for early intensive supervision of juvenile offenders if they are not to live a life of crime and incarceration.
The offender has pleaded guilty in the Local Court and has adhered to those pleas before me to the following offences. The first is that between 7 and 8 January 2017 at Tregear he broke and entered the dwelling house of Graham Wright in Tregear and committed larceny in circumstances of aggravation being that he knew that there was a person present within the dwelling house. That is an offence under s 112(2) of the Crimes Act and has a maximum penalty of 20 years imprisonment with a standard non-parole period of five years.
There is a second offence, the police pursuit, the particulars of which are as follows, that on 8 January 2017 at La Perouse he drove a Ford Falcon motor vehicle knowing that police officers were in pursuit and that he was required to stop the vehicle and did not stop the vehicle and then drove the vehicle recklessly and in a manner dangerous to others. That is an offence under s 51B(1) of the Crimes Act and has a maximum penalty of three years imprisonment. There is no applicable standard non-parole period.
There is a third offence that on 8 January 2017 at La Perouse he used an offensive instrument, a motor vehicle, with intent to prevent lawful apprehension of himself. That is an offence under s 33B(1)(a) of the Crimes Act and has a maximum penalty of 12 years imprisonment and there is no applicable standard non-parole period. When sentencing him for the…

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 [2018] NSWDC 532
Case: [2018] NSWDC 532
Decision Date: 19 April 2018

CaseChat Overview and Summary

In the case of R v Hamilton, the appellant was convicted of a series of property offences, including breaking and entering, committed during a police pursuit. The case came before the court to determine whether the circumstances of the offence constituted an aggravating factor, as well as to consider the appropriate sentence for the appellant, given his young age and background of disadvantage.

The court was required to examine the evidence to ascertain whether the use of an offensive weapon during the break and enter, and the fact that the offence occurred in the context of a police pursuit, justified an aggravated sentencing approach. Additionally, the court needed to consider the appellant's age, his history of offending as a juvenile, and his disadvantaged background in determining an appropriate sentence.

The court found that the circumstances of the offence did indeed constitute an aggravating factor due to the use of an offensive weapon and the context of a police pursuit. However, in assessing the sentence, the court gave significant weight to the appellant's youth and his background of disadvantage. The court concluded that, while the offences were serious, the appellant's age and personal circumstances warranted a sentence that provided an opportunity for rehabilitation and reintegration into society. The court imposed a sentence that reflected these considerations, balancing the need for punishment with the prospect of reform.

The court ordered that the appellant be sentenced to a term of imprisonment, with specific provisions for parole eligibility and conditions to support his rehabilitation and reintegration into the community. The details of the sentence are outlined in paragraph [41] of the judgment.

Orders

Orders of the court

See paragraph [41]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hamilton [2018] NSWDC 532
Hearing dates:	19 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [41]
Catchwords:	CRIME — Property offences — Break and enter — Circumstances of aggravation — Police pursuit — Use offensive weapon — Joint criminal enterprise SENTENCING — Young adult offender — offences as juvenile — background of disadvantage
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	BP v The Queen [2010] NSWCCA 159 Bugmy (2013) 249 CLR 571 Bullock v The Queen [2016] NSWCCA 131 R v Fernando (1992) 76 A Crim R 58 Hayek v R [2016] NSWCCA 126 Mack v R [2010] NSWCCA 269 R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 32 TL v R [2017] NSWCCA
Category:	Sentence
Parties:	Tighreak Trevor Hamilton Director of Public Prosecutions
Representation:	Counsel: Solicitors: S Dogulin (Hamilton) K Miller (DPP)
File Number(s):	2017/000063882016/00006393