R v Hammond - [2001] NSWCCA 34

Reported Decision:
121 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Regina v Hammond [2001] NSWCCA 34

FILE NUMBER(S): CCA 60590/2000

HEARING DATE(S): 1 February 2001

JUDGMENT DATE:
1 February 2001

PARTIES :

Crown
Clinton James Hammond

JUDGMENT OF: Giles JA at 1; Hulme J at 36; Bell J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/71/0071

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : E A Wilkins - Crown
P Bodor QC - Respondent

SOLICITORS: SE O'Connor - Crown
Ross Hill & Associates - Respondent

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v O'Brien (unreported) NSWCCA 10 June 1993
R v Bagnall and Russell (unreported) NSWCCA 10 June 1994

DECISION: Appeal allowed; sentence imposed by Gibson DCJ in respect of count 2 in indictment set aside. In lieu thereof, respondent sentenced to 5 years imprisonment to date from 16 May 1999 with a non-parole period of 2 years and 10 months. First date eligible for consideration for release on parole 15 March 2002.

IN THE COURT OF
CRIMINAL APPEAL

60590/00

GILES JA
HULME J
BELL J

Thursday, 1 February, 2001

JUDGMENT

1 GILES JA: I will ask Bell J to deliver the first reasons.

2 BELL J: This is an appeal brought by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 against the sentence imposed upon the respondent by Judge Gibson at the Albury District Court on 13 August 1999.

3 On 11 August 1999 the respondent pleaded guilty to an indictment containing two counts. The first count charged him with an offence of "stealing from the person" contrary to s 94 of the Crimes Act 1900 (“the Act”) and the second count charged him with "malicious wounding" contrary to s 35 of the Act. The respondent invited the sentencing judge to take into account a further ten charges which were set out in a Form 1 document, pursuant to s 21 of the Criminal Procedure Act 1986 as it then stood.

4 These charges were made up of three offences of break, enter and steal, three offences of larceny, two offences of steal motor vehicle, one of possess property stolen outside New South Wales and one of possess prohibited weapons. The offences, including those charged in the indictment, were committed over a period from January 1999 until May 1999.

5 In respect of the first count in the indictment Judge Gibson imposed a fixed term of imprisonment of twelve months to date from 16 May 1999. The two counts in the indictment related to offences which formed part of the same incident. Although it carries a lesser maximum penalty than the offence charged in count one, his Honour considered that the malicious wounding offence was objectively the more serious. He sentenced the respondent to a minimum term of two years, with an additional term of eighteen…

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 Hammond

Details

AGLC: R v Hammond [2001] NSWCCA 34
Case: [2001] NSWCCA 34
Decision Date: 1 February 2001

CaseChat Overview and Summary

In the matter of Regina v Hammond, the Court of Criminal Appeal of New South Wales addressed an appeal brought by the Director of Public Prosecutions against the sentence imposed on Clinton James Hammond by Judge Gibson at the Albury District Court. Hammond had pleaded guilty to two counts: stealing from the person and malicious wounding. The appeal was based on Hammond's failure to fulfil an undertaking to assist law enforcement authorities by giving evidence against his uncle, Martin Walker, which had influenced the original sentencing.

The legal issues before the court involved interpreting and applying s 5DA of the Criminal Appeal Act 1912, which allows for an appeal against a sentence if the offender fails to honour an undertaking to assist law enforcement authorities. The court had to decide whether to exercise its discretion to vary the sentence in light of Hammond's breach of his undertaking.

The Court of Criminal Appeal found that Hammond had indeed failed to honour his undertaking to testify against his uncle, thereby breaching the terms upon which the sentencing discount was based. The court considered the history and purpose of s 5DA, noting that while the provision is discretionary, its primary aim is to correct or adjust sentences where the original sentencing process has miscarried due to the offender's undertaking. The court acknowledged that while Hammond had faced harassment and threats, these circumstances were inherent risks he should have anticipated when offering to assist the authorities. Therefore, the court concluded that the discretion under s 5DA(2) should be exercised, and the sentence imposed by Judge Gibson should be varied. The Court of Criminal Appeal set aside the original sentence for the malicious wounding offence and re-sentenced Hammond to five years imprisonment, with a non-parole period of two years and ten months.

Orders