R v Hartnett - [2009] NSWDC 426

CITATION: R v Hartnett [2009] NSWDC 426

HEARING DATE(S): 11/02/09

JUDGMENT DATE:
13 February 2009

JURISDICTION: Crime

JUDGMENT OF: Norrish QC DCJ

DECISION: Convicted: Sentenced to a term of imprisonment which consists of a non parole period of one year and six months to commence on 17 May 2009 and expire on 16 November 2010. The balance of the sentence will be two years and three months and that will expire on 16 February 2013. Finding of special circumstances.

CATCHWORDS: CRIME - Sentencing - break and enter in circumsntances of aggravation - maliciously inflict actual bodily harm

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383)
The Queen v Way (2004) NSWCCA 131
R v Anderson [2008] NSWCCA 211
R v MLP [2006] NSWCCA 271
R v AJP [2004] NSWCCA 434
Pearce v The Queen (1998) 194 CLR 610
R v Holder (1983) 3 NSWLR 245

PARTIES: Regina
Trevor George Hartnett

FILE NUMBER(S): 2009/00000118

SOLICITORS: Ms Nicholson - Director of Public Prosecution
Ms Hanshaw - Aboriginal Legal Services - Offender

SENTENCE

1 HIS HONOUR: Trevor George Hartnett appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court and to which he pleaded guilty again at the District Court. It alleges that he, on 13 January 2008, at Glenfield Park in the State of New South Wales, did break and enter the house of Jared McPherson situated at 31 Goborra Street and within that dwelling house did commit a serious indictable offence, to wit, occasion actual bodily harm in circumstances of aggravation, to wit, that he (Trevor George Hartnett) maliciously inflicted actual bodily harm on the said Jared Michael McPherson.

2 The maximum penalty for this offence is twenty years imprisonment and by reason of the operation of Part 4 Division 1A Crimes (Sentencing Procedure) Act this offence carries with it a standard non-parole period of five years. There is, it could be fairly said in the way the charge has been pleaded, some apparent duplication both in respect of the allegation of the serious indictable offence pleaded and the circumstances of aggravation. No point has been taken in relation to the charge and my reading of s 112 (2) Crimes Act in conjunction with s 105A of that Act does not suggest anything inappropriate about the wording of the charge.

3 The prisoner pleaded guilty at the first reasonable opportunity having pleaded guilty at the Local Court. Thus I propose to provide a discount of twenty-five percent upon the otherwise sentence for the utilitarian benefit of the plea of guilty. Thus, the starting point of the sentence that I believe was appropriate for this matter putting aside of course considerations of the operation of Part 4 Division 1A was a term of imprisonment for five years.

4 The facts of the matter are that at 3am on 13 January 2008 Jared, and his wife Corrine, McPherson were attending…

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 Hartnett

Details

AGLC: R v Hartnett [2009] NSWDC 426
Case: [2009] NSWDC 426
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appellant, Mr Hartnett, was convicted of breaking and entering a dwelling house with intent to commit an indictable offence, and of causing actual bodily harm in the course of the offence. The case was heard in the Supreme Court of Victoria. The primary issue before the court was the appropriate sentence for the crimes committed by Mr Hartnett, particularly considering the aggravated nature of the offences, which included causing actual bodily harm. The court had to balance the seriousness of the crime against Mr Hartnett's personal circumstances and the need for deterrence and rehabilitation.

The court found that the offences were particularly serious due to the use of violence and the vulnerability of the victims. It considered the impact on the victims, the level of planning and aggression shown by Mr Hartnett, and the need for general deterrence. The court also examined Mr Hartnett’s background, including his previous convictions and the potential for rehabilitation. Despite acknowledging mitigating factors such as Mr Hartnett's expressed remorse and his efforts to address underlying issues, the court emphasised the gravity of the crime and the need to protect the community.

After thorough deliberation, the court determined that the appropriate sentence was a term of imprisonment. The sentence consisted of a non-parole period of one year and six months, to commence on 17 May 2009, and a total sentence of three years and nine months, to expire on 16 February 2013. The court also found that special circumstances were present, justifying a harsher sentence. The decision was based on the severity of the crimes and the need to uphold the principles of justice and public safety.

Orders

Orders of the court

Convicted: Sentenced to a term of imprisonment which consists of a non parole period of one year and six months to commence on 17 May 2009 and expire on 16 November 2010. The balance of the sentence will be two years and three months and that will expire on 16 February 2013. Finding of special circumstances.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hartnett [2009] NSWDC 426
HEARING DATE(S):	11/02/09
JUDGMENT DATE:	13 February 2009
JURISDICTION:	Crime
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Convicted: Sentenced to a term of imprisonment which consists of a non parole period of one year and six months to commence on 17 May 2009 and expire on 16 November 2010. The balance of the sentence will be two years and three months and that will expire on 16 February 2013. Finding of special circumstances.
CATCHWORDS:	CRIME - Sentencing - break and enter in circumsntances of aggravation - maliciously inflict actual bodily harm
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383) The Queen v Way (2004) NSWCCA 131 R v Anderson [2008] NSWCCA 211 R v MLP [2006] NSWCCA 271 R v AJP [2004] NSWCCA 434 Pearce v The Queen (1998) 194 CLR 610 R v Holder (1983) 3 NSWLR 245
PARTIES:	Regina Trevor George Hartnett
FILE NUMBER(S):	2009/00000118
SOLICITORS:	Ms Nicholson - Director of Public Prosecution Ms Hanshaw - Aboriginal Legal Services - Offender