Regina v HATHAWAY [2005] NSWCCA 368 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
20 October 2005
JUDGMENT DATE:
20 October 2005
JUDGMENT OF:
Spigelman CJ at 1; McClellan CJ at CL at 8; Hall J at 60
DECISION:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - break and enter in circumstances of aggravation - whether error in taking into account the applicant's prior convictions as an aggravating factor - whether error in failing to have regard to delay between the commission of the offence and the applicant's arrest - whether error in the application of the discount for the applicant's plea of guilty - whether sentence is manifestly excessive
Solicitor for Public Prosecutions Legal Aid Commission of NSW
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/71/0063
LOWER COURTJUDICIAL OFFICER:
Blackmore DCJ
2005/1100
SPIGELMAN CJ McCLELLAN CJ at CL HALL J
THURSDAY 20 OCTOBER 2005
REGINA v Ronald Leslie HATHAWAY
Judgment
1 SPIGELMAN CJ: I agree and I add the following.
2 This is not an appropriate case for this Court to review the consistent recent line of authority on the relationship between s 21A(2)(d) and s 21A(4) of the Crimes (Sentencing Procedure) Act 1999. If it is to be reviewed by reason of the submission that the Crown has advanced in this case that there is an inconsistency with earlier authority, particularly with the passage in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478, then that is a matter, in light of the consistency of recent cases, that needs to be determined by a Bench of five.
[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.
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AGLC
R v Hathaway [2005] NSWCCA 368
Case
[2005] NSWCCA 368
Decision Date
CaseChat Overview and Summary
The court heard an appeal by the respondent, Hathaway, against his conviction for break and enter in circumstances of aggravation, as well as additional charges. The appeal was against the sentence imposed by the primary judge, focusing on several aspects including the consideration of Hathaway's prior convictions, the delay between the offence and his arrest, the discount for his plea of guilty, and whether the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.
The central legal issues were whether the primary judge erred in taking Hathaway's prior convictions into account as an aggravating factor, whether there was an error in not considering the significant delay between the offence and his arrest, whether there was an error in the application of the discount for Hathaway's plea of guilty, and whether the overall sentence was manifestly excessive. The appeal hinged on the correct application of sentencing principles and the weight given to various factors by the primary judge.
The court found that there was no error in the primary judge's consideration of Hathaway's prior convictions, as they were relevant and appropriately factored into the sentencing process. Regarding the delay, the court determined that while the delay was substantial, it did not constitute a material error in the sentencing. The court also found that the discount for Hathaway's plea of guilty was correctly applied. However, the court held that the overall sentence was manifestly excessive, taking into account the totality of the circumstances. Consequently, the court ordered a retrial for sentencing, directing the primary judge to reassess the sentence with due regard to the court's findings.