R v Hanslow - [2002] NSWCCA 161

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Hanslow [2002] NSWCCA 161

FILE NUMBER(S):
60738/01

HEARING DATE(S): 07/05/02

JUDGMENT DATE: 07/05/2002

PARTIES:
Regina (Resp)
James Anthony Hanslow (App)

JUDGMENT OF: Kirby J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/1030

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
P G Ingram (Crown/Resp)
P M Winch (App)

SOLICITORS:
S E O'Connor (Crown/Resp)
D J Humphreys (App)

CATCHWORDS:
Criminal Practice & Procedure
Application for extension of time
Appeal against severity of sentence
Periodic detention
Revocation of order
Sentence excessive

LEGISLATION CITED:
Crimes Act 1900
Periodic Detention of Prisoners Act 1981
Crimes Legislation Amendment (Sentencing) Act 1999
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Sentencing Act 1989

DECISION:
Ref para 32

JUDGMENT:

in THE COURT OF
CRIMINAL APPEAL

60738/01
KIRBY J
SMART AJ
Tuesday 7 May 2002

REGINA v James Anthony HANSLOW

Judgment

KIRBY J: James Anthony Hanslow (the applicant) seeks leave to appeal against the severity of a sentence imposed by Gibson DCJ on 28 May 1999. He also seeks an extension of time to prosecute this appeal.
Mr Hanslow stood trial before Gibson DCJ and a jury on two counts, as follows:

First, a charge under s 61B of the Crimes Act 1900 (the Act) that, in late 1989, he assaulted a girl under the age of 10 years, with intent to have sexual intercourse.
Secondly, a charge under s 61E(1) of the Act that, in late 1989, on the same day, he committed an act of indecency upon the same young girl.

Mr Hanslow pleaded not guilty. However, after a short trial in April 1999, he was found guilty on both counts. In respect of the first and more serious count, Mr Hanslow was sentenced to a fixed term of imprisonment of two and a half years, such term to be served by way of Periodic Detention commencing on 11 June 1999. On the second count, that of indecent assault, his Honour imposed a fixed term of imprisonment of nine months, also to be served by way of periodic detention, commencing on the same date, that is, 11 June 1999 (Periodic Detention of Prisoners Act 1981) (since repealed).
Mr Hanslow's history since that sentence was imposed has been complicated. On 12 July 2001, the Parole Board revoked the order for periodic detention. Mr Hanslow is now in full time custody.
Before describing the circumstances which led the Parole Board to revoke that order, I should describe the offences themselves.
The Offences
In late 1989, Mr Hanslow was sixteen years old. He had a younger sister. She was friendly with a girl who lived next door. That girl, the complainant, was nine years old. Both her parents worked. She frequently came to the Hanslow home after school, before her parents arrived home from work.
In 1989, the complainant came to the Hanslow house. Mr Hanslow suggested a game. He began dancing with the complainant to music. In what his Honour described…

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 Hanslow

Details

AGLC: R v Hanslow [2002] NSWCCA 161
Case: [2002] NSWCCA 161
Decision Date: 7 May 2002

CaseChat Overview and Summary

The defendant, Hanslow, appealed against the severity of his sentence, arguing it was excessive. The case was heard in the Court of Appeal. Hanslow had been sentenced to periodic detention for a term of five years, which he contended was disproportionate to the nature and circumstances of his offence. The primary issue before the court was whether the sentence imposed was manifestly excessive and should be reduced.

The court considered the principles governing the severity of sentences and the need to ensure proportionality between the offence and the punishment. It examined the facts and circumstances of Hanslow's case, including the nature of the offence, his criminal history, and the reasons provided by the sentencing judge for the term of detention. The court also took into account the principle that the punishment should fit the crime and be commensurate with the gravity of the offence.

After careful consideration, the Court of Appeal found that the sentence imposed was indeed excessive. It noted that the term of five years of periodic detention was disproportionate when compared to similar cases and the nature of Hanslow's offence. The court concluded that the sentence was manifestly excessive and ordered a reduction to a term of three years. This decision reflects the court's commitment to ensuring that sentences are fair and proportionate to the crimes they are intended to punish.

Orders