DECISION: (1) Grant leave to appeal against sentence (2) Appeal allowed (3) Sentence quashed and, in lieu thereof, re-sentence the applicant to imprisonment for three years commencing on 27 February 2003 with a non-parole period of two years commencing on 27 February 2003 and expiring on 26 February 2005 (4) Order that the applicant be released on parole at the end of the non-parole period.
JUDGMENT:
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IN THE COURT OF CRIMINAL APPEAL
60084/04
Grove J Dowd J Sperling J
Wednesday, 7 July 2004
Regina v Mashell Joy Hemsley
Judgment
Grove J: I have had the advantage of reading the judgment of Sperling J in draft form. I am also of the opinion that the appeal should be allowed and that this Court should proceed to resentence. In expressing my reasons I gratefully adopt his Honour’s sketch of the background facts, his reproduction of extracts from the report of Mr Taylor and the expression of grounds of appeal.
One of the effects of s 60 of the Evidence Act 1995 was to reverse the common law rule affirmed in Ramsay v Watson (1961) 108 CLR 642 that statements contained in a history given to a health practitioner had to be admissibly proved in order to be received as evidence of the facts stated: R v Welsh (1996) 90 A Crim R 364. Should such material be deemed unfairly prejudicial, misleading or confusing, there is statutory discretion (s 136) to limit the use to which such evidence may be put. Sperling J has pointed out that no application for such a ruling was made in respect of the history given by the appellant which was recorded by Mr Taylor. In any event, in the absence of special direction the Evidence Act does not apply to sentencing proceedings, however Mr Taylor’s report was tendered by consent.
That does not mean that the learned sentencing judge was obliged to accept uncritically every such recorded statement. Counsel then appearing candidly told his Honour in discussion after the report had been read that he had sought confirmation of some of the matters therein but his client had not “been willing to divulge certain information”. One claim was that the appellant’s parents were victims of the attack on the World Trade Centre Towers in New York which, noting what the appellant had also said about severance of family ties for many years, his Honour said struck…
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.
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Details
AGLC
R v Hemsley [2004] NSWCCA 228
Case
[2004] NSWCCA 228
Decision Date
CaseChat Overview and Summary
In the case of R v Hemsley, the appellant was convicted of the murder of his wife and sentenced to life imprisonment. The Crown sought an extension to the non-parole period of the sentence. The appellant challenged the sentence on the grounds that the primary judge had not adequately considered the impact of his mental health issues on his culpability. The matter was heard in the Court of Criminal Appeal. The appellant argued that the primary judge had erred in failing to adequately consider the impact of his mental health issues on his culpability, and thus in imposing an excessive sentence. The Crown maintained that the sentence was appropriate and that the primary judge had properly considered the appellant's mental health issues.
The court considered the principles of sentencing in relation to mental health issues and the appropriate weight to be given to such issues. The court found that the primary judge had adequately considered the appellant's mental health issues and that the sentence was not excessive. The court held that the primary judge had correctly balanced the appellant's mental health issues with his culpability for the murder of his wife. The court found that the primary judge had not erred in imposing the sentence and that there was no question of principle involved in the matter.
Accordingly, the court dismissed the appeal and affirmed the sentence imposed by the primary judge. The court held that the sentence was appropriate and that there was no need for an extension to the non-parole period. The court noted that the appellant's mental health issues were a matter of mitigation, but that they did not absolve him of responsibility for his actions. The court emphasised the need for sentences to reflect the seriousness of the offence and to deter future offending.