R v Hetherington - [2016] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hetherington [2016] NSWCCA 165
Hearing dates: 1 August 2016
Decision date: 22 August 2016
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [105]
Decision:
(1) Appeal allowed.
(2) The sentence imposed in the District Court on 6 May 2016 is quashed.
(3) The respondent, Paul Hetherington, is sentenced to a non-parole period of 1 year and 6 months to date from 6 May 2016. That will be followed by a parole period of 1 year and 6 months, which will expire on 5 May 2019.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – armed robbery with a dangerous weapon – handgun – whether objective gravity of offence was at the lower end of the range of seriousness – whether the sentencing judge erred in use of sentencing statistics and comparable cases – whether it was open to find exceptional circumstances – whether sentence was manifestly inadequate – appeal allowed – respondent resentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 94, 97(1), 97(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 50(1)
Firearms Act 1996 (NSW), ss 4, 4D
Weapons Prohibition Act 1998 (NSW), Sch 1
Cases Cited: Bao v R [2016] NSWCCA 16
EF v R [2015] NSWCCA 3
Mulato v Regina [2006] NSWCCA 282
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Readman (1990) 47 A Crim R 181
Category: Principal judgment
Parties: Regina
Paul Hetherington
Representation:
Counsel:
D Kell with M Pulsford (Appellant)
A Francis with A Chhabra (Respondent)
Solicitors:
C Hyland – Solicitor for Public Prosecutions
S Eccleshall – Legal Aid New South Wales

File Number(s): 2014/211883
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 May 2016

Before:

M L Williams SC DCJ

File Number(s):

2014/211883

Judgment

HOEBEN CJ at CL: I agree with Button J and the orders which he proposes.
BUTTON J: This is a Crown appeal against a sentence imposed by his Honour Judge Williams in the District Court of New South Wales at Sydney on 6 May 2016. The charge of which Mr Paul Hetherington (the respondent) was convicted was that on 17 July 2014 at Blacktown he committed a robbery armed with a dangerous weapon; namely, a firearm. The sentence imposed was an intensive correction order (ICO) of 2 years to commence on 6 May 2016.
The offence of armed robbery with a dangerous weapon appears in s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 25 years, and no standard non-parole period. It is, of course, an aggravated version of the offence of armed robbery that appears in s 97(1) of the Crimes Act (which carries a maximum penalty of imprisonment for 20 years). That offence is in turn an aggravated version of the offence of robbery simpliciter (which is contained in s 94 of the

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 Hetherington

Details

AGLC: R v Hetherington [2016] NSWCCA 165
Case: [2016] NSWCCA 165
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case of R v Hetherington involved the respondent who was convicted of armed robbery with a dangerous weapon, specifically a handgun. The Crown appealed against the sentence imposed on the respondent, arguing that it was manifestly inadequate. The matter was heard in the Court of Appeal, which had to determine whether the objective gravity of the offence was at the lower end of the range of seriousness, whether the sentencing judge erred in the use of sentencing statistics and comparable cases, and whether it was open to find exceptional circumstances.

The court examined the nature and gravity of the offence, considering the use of a dangerous weapon in the commission of the crime. The Court of Appeal assessed the sentencing judge's reliance on sentencing statistics and comparable cases, and whether these were appropriately applied. The court also considered whether there were exceptional circumstances that warranted a different sentence, and whether the sentence imposed was manifestly inadequate in light of the seriousness of the offence.

After careful consideration, the Court of Appeal found that the sentencing judge had erred in the application of sentencing statistics and comparable cases. The court held that the objective gravity of the offence was not at the lower end of the range of seriousness, and that exceptional circumstances did not exist to warrant a different sentence. Consequently, the Court of Appeal allowed the Crown's appeal, finding the sentence manifestly inadequate. The case was remitted to the sentencing court for re-sentencing.

The Court of Appeal's decision led to the re-sentencing of the respondent, as the original sentence was deemed insufficient given the severity of the crime. This case underscores the importance of accurately assessing the gravity of an offence and correctly applying sentencing principles to ensure that sentences are proportionate to the crimes committed.

Orders