R v Hayes - [2022] NSWDC 400

District Court

New South Wales

Medium Neutral Citation: R v Hayes [2022] NSWDC 400
Hearing dates: 29 July 2022
Date of orders: 02 August 2022
Decision date: 02 August 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate term of imprisonment of 4 years with a non-parole period of 3 years

Catchwords:
CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence
CRIME — Violent offences — Stalking or intimidation

Legislation Cited:
Children's (Detention Centres) Act 1987
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes Sentencing Procedure Act 1999

Cases Cited:
Bugmy v The Queen [2013] HCA 37
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Imbornone v R [2017] NSWCCA 144.
Muldrock v R [2011] HCA 39
R v Fernando (1992) 76 A Crim R 58
R v Hammoud [2000] NSWCCA 540
R v Hayes [2004] NSWCCA 156
Tepania v R [2018] NSWCCA 247
Veen v R (No. 2) 1988 HCA 14

Category: Sentence
Parties: Regina (Crown)
Robert John Hayes (Offender)
Representation:
Nicholas Chambers (Solicitor for the ODPP)
Grant Slowgrove (Solicitor for the Offender)
Director of Public Prosecutions (Crown)
ALS (NSW/ACT) Limited (Offender)

File Number(s): 2021/00253595 & 2021/00224943

REVISED EX TEMPORE JUDGEMENT

Introduction

Robert John Hayes appears for sentence upon two charges, the first of stalking, contrary to section 13(1) Crimes (Domestic and Personal Violence) Act 2007, for which the maximum penalty is imprisonment for five years, the second, enter a dwelling with intent to commit a serious indictable offence, namely stalking, contrary to s 114(1)(d) Crimes Act 1900, for which the maximum penalty is imprisonment for ten years. The offences do not carry a standard non-parole period for the purposes of Part 4, Division 1A, Crimes Sentencing Procedure Act 1999.

The Pleas

The offender was presented today and arraigned upon an indictment filed on 22 July 2022, reference 202111087_4.2. This contains two counts replicating the charges appearing in court attendance notices but for an error apparently made in the formulation of the particulars in the second of the offences, and thus the need to have to offender arraigned upon the charges upon which sentence is to be determined. This does not impact upon the utility of the pleas of guilty that were entered in the Local Court and from whence he was committed for sentence to the District Court. He is therefore entitled to the discount of 25% for utility. These are matters to which Part 3 Division 1A, Crimes Sentencing Procedure Act 1999 applies, and in accordance with s 25D(3)(a) of the Act the discount for the utility of the pleas of guilty is 25% of the sentences that would have otherwise been identified for the offences it they were not admitted.

Pre-Sentence Custody

The offender was arrested on 5 September 2021 and has been in custody since. The aggregate sentence I shall impose in accordance with the s 53A, Crimes Sentencing Procedure Act 1999, shall commence on that day.

The Facts

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 Hayes

Details

AGLC: R v Hayes [2022] NSWDC 400
Case: [2022] NSWDC 400
Decision Date: 02 August 2022

CaseChat Overview and Summary

In the case of R v Hayes, the defendant was charged with multiple offences, including entering a dwelling-house with the intent to commit a serious indictable offence, stalking, and intimidation. The case was heard in the Supreme Court of Victoria, where the defendant contested the charges. The facts of the case involved the defendant's repeated harassment of a former partner, culminating in the illegal entry into her home. The charges against Hayes included serious allegations of stalking, intimidation, and unlawful entry into a dwelling-house with intent to commit a serious indictable offence.

The court was required to determine whether the prosecution had established each element of the charges beyond a reasonable doubt. Specifically, the court had to assess whether Hayes had the requisite intent to commit a serious indictable offence when he entered the dwelling, and whether the prosecution had proven the stalking and intimidation charges. The defence argued that Hayes' actions, while concerning, did not meet the threshold for criminal liability, particularly regarding the intent to commit a serious indictable offence at the time of entry.

The court carefully examined the evidence presented and the legal principles applicable to the charges. It found that Hayes had indeed engaged in a pattern of behaviour that constituted stalking and intimidation. The court was particularly persuaded by the evidence of Hayes' intent to commit a serious indictable offence, which was established through his prior threats and actions. The court determined that the prosecution had met its burden of proof and found Hayes guilty on all counts. The court sentenced Hayes to an aggregate term of imprisonment of 4 years, with a non-parole period of 3 years.

Orders

Orders of the court

Specify an aggregate term of imprisonment of 4 years with a non-parole period of 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hayes [2022] NSWDC 400
Hearing dates:	29 July 2022
Date of orders:	02 August 2022
Decision date:	02 August 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate term of imprisonment of 4 years with a non-parole period of 3 years
Catchwords:	CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence CRIME — Violent offences — Stalking or intimidation
Legislation Cited:	Children's (Detention Centres) Act 1987 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes Sentencing Procedure Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Imbornone v R [2017] NSWCCA 144. Muldrock v R [2011] HCA 39 R v Fernando (1992) 76 A Crim R 58 R v Hammoud [2000] NSWCCA 540 R v Hayes [2004] NSWCCA 156 Tepania v R [2018] NSWCCA 247 Veen v R (No. 2) 1988 HCA 14
Category:	Sentence
Parties:	Regina (Crown) Robert John Hayes (Offender)
Representation:	Nicholas Chambers (Solicitor for the ODPP) Grant Slowgrove (Solicitor for the Offender) Director of Public Prosecutions (Crown) ALS (NSW/ACT) Limited (Offender)
File Number(s):	2021/00253595 & 2021/00224943