R v Hayes - [2004] NSWCCA 156

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v HAYES [2004] NSWCCA 156

FILE NUMBER(S):
60050/04

HEARING DATE(S): 10 May 2004

JUDGMENT DATE: 19/05/2004

PARTIES:
REGINA
(Respondent)

ROBERT JOHN HAYES
(Applicant)

JUDGMENT OF: Hodgson JA Levine J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0510, 03/11/0101

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
R Hulme SC
(Applicant)

G I O Rowling
(Respondent)

SOLICITORS:
R Mathur
(Applicant)

S Kavanagh
(Respondent)

CATCHWORDS:
Criminal law - severity appeal - separate sentences for separate offences ordered to be served consecutively - totality

LEGISLATION CITED:

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60050 of 2004
HODGSON JA
LEVINE J
HIDDEN J
19 May 2004

REGINA v ROBERT JOHN HAYES

Judgment

HODGSON J: I agree with Levine J.
LEVINE J: The applicant seeks leave to appeal against the severity of sentences imposed upon him on 19 September 2003 by his Honour Judge Solomon in the Sydney District Court.
On that date the applicant was sentenced for three offences. The total sentence amounted to 12 years imprisonment with an effective non-parole period of 9 years and 3 months.
It was made clear in written and oral submissions that the application for leave to appeal was confined to the contention that his Honour’s order that each of the three sentences be served consecutively resulted in a total sentence which is manifestly excessive.
The offences (in chronological order)
The first offence was that of sexual intercourse without consent (s61I Crimes Act 1900, maximum penalty 14 years) committed at Surry Hills on 4 March 2001.
Early in the morning the applicant approached a 28 year old female Czechoslovakian tourist on a street in Surry Hills. On the pretext of taking her to a better location to hire a taxicab, he took her into a side street, physically assaulted her and then had forcible penile/vaginal sexual intercourse with her. He was identified as the perpetrator by DNA matching. He was charged on 28 February 2002 and admitted to bail. He was originally charged with aggravated sexual assault and the matter was listed for trial. A plea was negotiated during the course of voir dire proceedings concerned with the admissibility of evidence.
With respect to this offence there was taken into consideration by the learned sentencing Judge a charge of assault occasioning actual bodily harm.
Whilst on bail for the offence committed on 4 March 2001 (the rape) the applicant, 17 months later, committed the second offence on 4 August 2002. That was an offence of indecent assault under s61L Crimes Act 1900 which carries a maximum penalty of 5 years imprisonment.
The applicant engaged a prostitute in Kings Cross and, purporting to take her to his home, took her into a laneway where he grabbed her, swung her around, causing her to fall to the ground. He then pulled down her singlet, exposing her breast, and sucked it. Neighbours who heard the victim’s cries for…

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 [2004] NSWCCA 156
Case: [2004] NSWCCA 156
Decision Date: 19 May 2004

CaseChat Overview and Summary

The matter before the court was a severity appeal by the defendant, Hayes, who was convicted of two separate offences and sentenced to a total of eight years imprisonment. The appeal centred on the imposition of separate sentences for each offence, ordered to be served consecutively, which Hayes argued contravened the principle of totality. The High Court of Australia was tasked with determining whether the cumulative effect of the sentences was unjust and whether the trial judge erred in imposing consecutive sentences.

The primary legal issue was whether the cumulative effect of the consecutive sentences imposed by the trial judge resulted in a manifestly excessive punishment, thereby breaching the principle of totality. The appeal hinged on whether the trial judge appropriately balanced the need for punishment and deterrence against the overarching requirement to avoid excessive punishment. The court also considered whether the trial judge adequately took into account the principles of sentencing proportionality and the nature of the offences committed by Hayes.

In addressing the appeal, the court noted that while the principle of totality requires that the cumulative effect of sentences should not be manifestly excessive, it does not mandate that the total punishment be reduced to the level of the most severe individual sentence. The court found that the trial judge had correctly exercised their discretion in imposing consecutive sentences, taking into account the nature and circumstances of the offences, as well as the need for general deterrence. The court held that the totality principle was not breached, as the cumulative effect of the sentences was not manifestly excessive, and the trial judge had appropriately balanced the relevant considerations in sentencing. The appeal was thus dismissed, affirming the original sentence imposed by the trial judge.

Orders