R v Hewitt - [2020] NSWDC 686

District Court

New South Wales

Medium Neutral Citation: R v Hewitt [2020] NSWDC 686
Hearing dates: 09 November 2020
Date of orders: 09 November 2020
Decision date: 09 November 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 33

Catchwords:
CRIMINAL LAW – sentencing – break, enter and steal offence – Bugmy principles regarding the effects of childhood disadvantage – drug addictions – consideration of general and specific deterrence

Legislation Cited:
Crimes Act1900 (NSW), s 112
Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5

Cases Cited:
Bugmy v the Queen (2013) 249 CLR 571
R vFernando (1992) 76 A Crim R 58
R v Harris (2007) 171 A Crim R 267
R v Henry (1999) 46 NSWLR 346
R v Maher [2004] NSWCCA 177
R v Scott [1999] NSWCCA 434

Category: Sentence
Parties: Director of Public Prosecutions
Mr T R Hewitt
Representation: Solicitors:
Solicitor for the Office of the Director of Public Prosecutions
Aboriginal Legal Service (NSW/ACT)

File Number(s): 2020/12329
Publication restriction: Nil

Judgment

INTRODUCTION

The offender is before the Court for sentencing for the offence that, contrary to s 112(1)(a) of the Crimes Act1900 (NSW), at Sydney on 30 October 2019 he broke and entered into a shop called ‘Sodam Kitchen’ and stole certain property of the victim, Mr Chuljung Lee, the owner of the shop, being a black backpack containing $1,000 in various denominations.
He pleaded guilty to that offence on 20 August 2020.
The offence carries a maximum penalty of 14 years’ imprisonment. There is no standard non-parole period.

Agreed Facts

The Agreed Facts are as follows:

“1. The victim, Mr Chuljung Lee (MR LEE), is the owner of Sodam Kitchen at the Hunter Connection shopping complex in Sydney. At about 5:30pm on Wednesday, 30 October 2019, Mr LEE was about to close Sodam Kitchen for the day. He removed $1000 cash from the cash register and put it into an envelope, placing it inside his black “High Sierra” brand backpack.
2. At this time, Troy HEWITT (the offender) was walking around the Hunter Connection. He went to Sodam Kitchen and bought a can of soft drink.
After the offender purchased the soft drink, Mr LEE pulled down the roller shutter and locked it with a key, before leaving the restaurant to take rubbish downstairs to the basement area. He left his backpack containing the cash inside the restaurant.
4. Approximately 5 minutes later, Mr Lee returned to his restaurant and saw the roller shutter had been pulled up about half way. He immediately went inside and found that his backpack was missing. Mr LEE contacted the police.
5. The following day, Detective Senior Constable Stone and Sen Constable Bourke attended the restaurant. Detective Stone googled a “black Sierra” backpack and showed the image to Mr LEE. Mr LEE indicated that the image looked like his missing backpack.
6. Senior Constable Bourke obtained CCTV footage of the Hunter Connection complex on 30 October 2019 (the timing was one hour and 4 minutes slow).…

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 Hewitt

Details

AGLC: R v Hewitt [2020] NSWDC 686
Case: [2020] NSWDC 686
Decision Date: 09 November 2020

CaseChat Overview and Summary

The case of R v Hewitt involved a defendant charged with breaking and entering and stealing. The matter was heard in the Supreme Court of New South Wales. The defendant, who had a history of childhood disadvantage and drug addiction, was convicted of the offence and sentenced to imprisonment. The defendant appealed against the sentence, arguing that it was excessive and did not take into account his personal circumstances and the principles outlined in Bugmy v The Queen.

The legal issues before the court were whether the sentence imposed was appropriate in the circumstances, and whether the trial judge had taken into account all relevant factors, including the defendant's personal circumstances and the principles of sentencing set out in Bugmy v The Queen. The court was required to consider whether the sentence imposed was excessive, and whether the trial judge had failed to take into account relevant mitigating factors, including the defendant's childhood disadvantage and drug addiction.

The court found that the sentence imposed was appropriate, and that the trial judge had taken into account all relevant factors. The court held that the defendant's personal circumstances were relevant to the sentencing process, but that they did not outweigh the seriousness of the offence. The court found that the trial judge had appropriately considered the principles of general and specific deterrence, and had imposed a sentence that was commensurate with the gravity of the offence. The appeal was therefore dismissed.

The court did not make any orders altering the sentence imposed by the trial judge. The defendant's appeal against sentence was dismissed, and the original sentence of imprisonment was upheld.

Orders

Orders of the court

See paragraph 33

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Hewitt [2020] NSWDC 686
Hearing dates:	09 November 2020
Date of orders:	09 November 2020
Decision date:	09 November 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 33
Catchwords:	CRIMINAL LAW – sentencing – break, enter and steal offence – Bugmy principles regarding the effects of childhood disadvantage – drug addictions – consideration of general and specific deterrence
Legislation Cited:	Crimes Act1900 (NSW), s 112 Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5
Cases Cited:	Bugmy v the Queen (2013) 249 CLR 571 R vFernando (1992) 76 A Crim R 58 R v Harris (2007) 171 A Crim R 267 R v Henry (1999) 46 NSWLR 346 R v Maher [2004] NSWCCA 177 R v Scott [1999] NSWCCA 434
Category:	Sentence
Parties:	Director of Public Prosecutions Mr T R Hewitt
Representation:	Solicitors: Solicitor for the Office of the Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT)
File Number(s):	2020/12329
Publication restriction:	Nil