Legal Research
Cases
R v Hernando

R v Hernando

Case [2002] NSWCCA 489 10 December 2002

Discretion of Court of Criminal Appeal

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
(2002) 136 A Crim R 451

New South Wales

Court of Criminal Appeal

CITATION: R v Hernando [2002] NSWCCA 489

FILE NUMBER(S): CCA 60253/02

HEARING DATE(S): 24 July 2002

JUDGMENT DATE:
10 December 2002

PARTIES :

Regina v Janian Hernando

JUDGMENT OF: Heydon JA at 1; Levine J at 31; Carruthers AJ at 32

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3323

LOWER COURT JUDICIAL
OFFICER : Moore ADCJ

COUNSEL : Mr G E Smith (Crown)
Mr D Dalton (Respondent)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Respondent)

CATCHWORDS: Criminal law - robbery in company - Crimes Act 1900 s 97(1) - sentence - adequacy - Crown appeal - Criminal law - appeals - Crown appeals - appeals by convicted persons - different principles applying - Crown delay in lodging appeal - delay in hearing of appeal - relevance - discretion of Court of Criminal Appeal not to intervene notwithstanding appellable error - Criminal Appeal Act 1912 (NSW) s 5D

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED:
Griffiths v R (1977) 137 CLR 293
R v Osenkowski (1982) 30 SASR 212
Pearce v R (1998) 194 CLR 610
R v Griggs (2000) 111 A Crim R 233
R v Malone [2000] NSWCCA 156
R v Simpson [201] NSWCCA 534
Power v R (1974) 131 CLR 623
R v Poihipi [2001] NSWCCA 306
Ketteman v Hansel Properties Pty Ltd [1987]1 AC 189
R v Holder [1983] 2 NSWLR 245
R v Hicks (1987) 45 SASR 270
R v Potter (unreported, 12 April 1994)
R v Hallocoglu (1992) 29 NSWLR 67
R v Carngham (1978) 140 CLR 487
Everett v R (1994) 181 CLR 295
R v Kyroglou [1999] NSWCCA 106
R v Horne [1999] NSWCCA 391
R v Harris (2001) 121 A Crim R 380

DECISION: Appeal dismissed.

60253/02

HEYDON JA
LEVINE J
CARRUTHERS AJ
10 December 2002

REGINA v Janian HERNANDO

Criminal law – robbery in company – Crimes Act 1900 s 97(1) – sentence – adequacy – Crown appeal
Criminal law – appeals – Crown appeals – appeals by convicted persons – different principles applying – Crown delay in lodging appeal – delay in hearing of appeal – relevance – discretion of Court of Criminal Appeal not to intervene notwithstanding appellable error – Criminal Appeal Act 1912 (NSW) s 5D

The respondent was charged with two counts of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW). The penalty for violation of s 97(1) was 20 years’ imprisonment. The respondent entered pleas of guilty on both counts and was sentenced on the first count to imprisonment for a fixed term of 6 months and on the second count to imprisonment for 2 years with a non-parole period of 6 months. The sentences were ordered to be served concurrently. On 6 March 2002 the respondent was released from custody after serving 6 months’ imprisonment having been in custody since 6 September 2001. On 2…

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 Hernando

Details

AGLC: R v Hernando [2002] NSWCCA 489
Case: [2002] NSWCCA 489
Decision Date: 10 December 2002

CaseChat Overview and Summary

The appellant, Hernando, was convicted of robbery in company under section 97(1) of the Crimes Act 1900. The appellant and his co-offenders were found guilty of robbing a group of individuals at knifepoint. The Crown appealed against the sentence, arguing it was inadequate. The appellant subsequently appealed against his conviction, arguing that the delay in the Crown lodging its appeal resulted in prejudice to his case. The Court of Criminal Appeal was tasked with determining whether the delay in the Crown lodging its appeal impacted the fairness of the trial, and whether the sentence was appropriate.
The primary legal issues before the court were whether the delay in the Crown lodging its appeal prejudiced the appellant's case, and if the sentence imposed was adequate. The court considered the principles applicable to appeals by the Crown and those by convicted persons, recognising that different principles apply in each instance. The court also examined whether the delay in the Crown lodging its appeal was relevant to the fairness of the trial and whether it had any bearing on the adequacy of the sentence.
The court held that the delay in the Crown lodging its appeal did not prejudice the appellant's case. The court found that the appellant had not demonstrated any prejudice flowing from the delay, and that the trial remained fair. Furthermore, the court considered the adequacy of the sentence and concluded that it was appropriate in the circumstances. The court exercised its discretion under section 5D of the Criminal Appeal Act 1912 (NSW) not to intervene despite finding an error in the proceedings.
The Court of Criminal Appeal dismissed the appellant's appeal and affirmed his conviction and sentence. The Crown's appeal against the sentence was also dismissed.

Orders