R v Hesford - [2002] NSWCCA 525

CITATION: R v Hesford [2002] NSWCCA 525

FILE NUMBER(S): CCA 60096/02

HEARING DATE(S): 18/12/02

JUDGMENT DATE:
18 December 2002

PARTIES :

Regina v Philip Mark Hesford

JUDGMENT OF: Mason P at 36; James J at 1; Dunford J at 37

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/71/0046

LOWER COURT JUDICIAL
OFFICER : Patten DCJ

COUNSEL : In Person
GIO Rowling

SOLICITORS: -
SE O'Connor

DECISION: Extension of time in which to apply for leave to appeal against sentence refused

60096/02

MASON P

JAMES J

WEDNESDAY 18 DECEMBER 2002

REGINA v PHILIP MARK HESFORD

Judgment

1 JAMES J: Philip Mark Hesford (“the applicant” or “Mr Hesford”) has applied for an extension of time in which to appeal against conviction and to apply for leave to appeal against sentence and, if an extension of time is granted, appeals against a conviction and applies for leave to appeal against the sentence imposed as a result of that conviction. Mr Hesford has appeared in person before the Court of Criminal Appeal.

2 On 18 July 2001 the applicant pleaded guilty in the Griffith District Court before his Honour Judge Patten to one charge of breaking and entering a dwelling house on 5 February 2001 with the intent to commit a serious indictable offence, namely, assault occasioning actual bodily harm, which is an offence under s 113(1) of the Crimes Act, for which the maximum penalty is imprisonment for ten years.

3 The matter had been mentioned in the Griffith District Court on 16 July 2001 and had then been adjourned to 18 July. The applicant spent the period between 16 and 18 July in custody at the Junee Correctional Centre. On the mention on 16 July the applicant was represented by a solicitor Mr Alvaro. In the proceedings on 18 July the applicant was represented by a barrister Mr M Smith, who was instructed by Mr Alvaro.

4 On 18 July 2001 Judge Patten sentenced the applicant to imprisonment for a term of two years to commence on 18 July 2001, the date of sentencing, and suspended that sentence, except for one month to commence on 18 July 2001, on condition that the applicant enter into a good behaviour bond for a term of two years, subject to conditions that:

(a) he be of good behaviour;

(b) he inform the Registrar of the Court of any change of address;

(c) he submit himself to such treatment for his mental illness as the Probation and Parole Service of New South Wales or of Western Australia might stipulate;

5 Judge Patten initially sentenced the applicant to a term of imprisonment of three years but reduced the term of imprisonment to two years, after it was realised that under s 12 of the Crimes (Sentencing Procedure) Act a sentence of imprisonment cannot be suspended, if the term of the sentence is more than two years. In sentencing the applicant,…

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 Hesford

Details

AGLC: R v Hesford [2002] NSWCCA 525
Case: [2002] NSWCCA 525
Decision Date: 18 December 2002

CaseChat Overview and Summary

The case of R v Hesford [2002] NSWCCA 525 involved Philip Mark Hesford, who applied for an extension of time to appeal against his conviction and sentence. Hesford had pleaded guilty in the Griffith District Court to breaking and entering a dwelling with intent to commit a serious indictable offence. The Court of Criminal Appeal, consisting of Mason P, James J, and Dunford J, heard Hesford's application for an extension of time to appeal his conviction and sentence, which was lodged six months out of the statutory time limit. The primary legal issues before the Court were whether Hesford's delay in lodging the appeal application could be excused under the circumstances and whether there were exceptional circumstances justifying an extension of time, potentially preventing a miscarriage of justice.

The Court considered the nature of Hesford's allegations, which included claims that he had been coerced into pleading guilty due to drugs administered by prison psychiatrists and pressure from his legal representatives and the judge. The Court noted that Hesford had pleaded guilty after being continuously in custody since the date of the offence. The medical evidence indicated that Hesford was fit to plead and understand the consequences of his plea at the time of sentencing. The Court also found no evidence to support Hesford's claims of coercion or improper influence by his legal representatives or the judge. Given the overwhelming evidence against Hesford and the moderate nature of the sentence imposed, the Court concluded that there were no exceptional circumstances warranting an extension of time. The Court held that Hesford had not discharged the onus of demonstrating a miscarriage of justice and thus refused the application for an extension of time. The order of the Court was that the application was refused.

Orders