R v Hatahet - [2024] HCATrans 37

[2024] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S37 of 2024

B e t w e e n -
THE KING
Appellant
and
FAYEZ HATAHET
Respondent

GORDON ACJ
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 MAY 2024, AT 10.00 AM

MS R.J. SHARP, KC: May it please the Court, I appear with my learned friends MR O.P. HOLDENSON, KC and MR C.J. TRAN for the appellant. (instructed by Director of Public Prosecutions (Cth))

MS M.J. AVENELL, SC: May it please the Court, I appear with MR P.R. COADY for the respondent. (instructed by Legal Aid NSW)

GORDON ACJ: Thank you. Ms Sharp.

MS SHARP: Your Honours, in our submission, a sentencing judge when imposing a federal sentence of imprisonment must not take into account that section 19ALB of the Crimes Act may or will make it more difficult for the offender to obtain parole. The Court of Criminal Appeal held to the contrary, on the basis that the effect of section 19ALB in making parole more difficult to attain would make the service of the respondent’s custodial sentence more onerous.

We submit there are three reasons why the Court of Criminal Appeal was incorrect to hold as it did, namely that the sentencing judge should have taken into account the so‑called likelihood of parole being refused here – here, to reduce the sentence – each of which will be developed orally. First, the court below proceeded on a false footing. The premise that custody to be served with the knowledge that parole will be difficult to obtain, or has been refused, will be more burdensome, or more punitive. That premise is, in our submission, contrary to law.

The second, that section 16A of the Crimes Act does not accommodate consideration of the impact of any adverse parole decision in determining sentence, either textually or as a matter of principle. The third reason, we submit, the court below fell into error was in finding that the principle that the effect of section 19ALB should be taken into account in this way is not available because it subverts the legislative intent of section 19ALB.

To frame those points, can I begin by taking the Court to the provisions of the Crimes Act that are at the heart of this appeal. I propose to take the Court first to section 16A and the provisions that deal with the imposition of sentence, which is the judicial function, before turning to the parole regime, the function of the Executive. Commencing with section 16A, this is at page 31 of the joint book of authorities, 16A contains the general principles, subsection (1):

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order –

These are the key words, in…

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 Hatahet

Details

AGLC: R v Hatahet [2024] HCATrans 37
Case: [2024] HCATrans 37
Decision Date

CaseChat Overview and Summary

The case of *R v Hatahet* concerned an appeal against a conviction for a range of offences, including aggravated robbery, assault occasioning actual bodily harm, and possession of a prohibited firearm. The appellant, Mr Hatahet, was convicted in the District Court of New South Wales following a trial. The appeal to the Court of Criminal Appeal of New South Wales raised questions regarding the fairness of the trial process and the admissibility of certain evidence.

The primary legal issues before the Court of Criminal Appeal were whether the trial judge had erred in admitting evidence of the appellant's prior convictions and whether the prosecution had failed to disclose relevant material to the defence, thereby rendering the trial unfair. Specifically, the court had to consider the application of the *Uniform Evidence Law* concerning the admissibility of evidence of a person's character, including previous convictions, and the prosecution's duty of disclosure.

The Court of Criminal Appeal found that the trial judge had erred in admitting evidence of the appellant's prior convictions. The court held that the evidence was not relevant to any issue in the trial and its prejudicial effect outweighed any probative value. Furthermore, the court determined that there had been a failure by the prosecution to disclose material that was potentially favourable to the defence, which, in conjunction with the erroneous admission of prior convictions, rendered the trial unfair.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the convictions, and ordered a new trial.

Orders