R v Higgins; R v Higgins - [2014] NSWDC 356

District Court

New South Wales

Medium Neutral Citation: R v Higgins; R v Higgins [2014] NSWDC 356
Hearing dates: 12/08/2014
Decision date: 12 August 2014
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Count 1 Sentenced to a term of imprisonment of 4 years and 10 months with a non parole period of 2 years to commence from 1 September 2014.
Count 2 Sentenced to a term of imprisonment of 10 months to commence from 1 September 2014.
Count 3 Sentenced to a term of imprisonment of 2 years and 10 months with a non parole period of 2 years to commence on 1 September 2014.
Count 4. Sentenced to a term of imprisonment 1 year and 3 months with a non parole period of 12 months to commence on 1 September 2013.

Catchwords: Criminal – Sentence, break, enter and steal, detain with intention of obtaining an advantage, assault
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: R v Allen [2010] NSWCCA 47
Bugmy v The Queen [2013] HCA 37
R v Callaghan (2006) 160 A Crim R 145
Fernando
John Hunter v R [2011] NSWCCA 141
R v McLaren [2012] NSWCCA 284
Muldrock v R [2011] 244 CLR 120
Munda v The Queen [2013] HCA 38
Pearce v The Queen [1998] 194 CLR 610
R v Newell [2004] NSWCCA 183
R v Speechley [2012] NSWCCA 130
R v Thomson and Houlton [2000] NSWCCA 309
Category: Sentence
Parties: Director of Public Prosecutions
Jacob Owen-John Higgins - Offender
Representation: Solicitors:
Director of Public Prosecutions
Aboriginal Legal Aid Service - Offender

File Number(s): 2013/119129: 2013/245541

Sentence

HIS HONOUR: Mr Higgins, I normally tell people in advance what sentence is to be imposed. I am going to tell you what sentence I am imposing for you. I am going to explain how the sentences are made up, but I have to give my reasons which will need to be detailed because, ultimately, the Parole Authority will read my judgment. Other people will read my judgment too. Each party has its rights of appeal and all those sorts of things, but it's important that I set out the reasoning behind my sentencing of you, which is not an easy exercise. It's quite a difficult exercise.
I propose to sentence you to a total of five years and 10 months imprisonment with a non-parole period of three years, which will effectively date from 1 September 2013. It is partly concurrent with your balance of parole. Notwithstanding the Crown's cover sheet, when I checked the custody records, your balance of parole that you were required to serve because you were bail refused for these matters, was seven months 28 days. That started from 4 May 2013; the date that you were arrested, and it expired, according to the custody record, on 31 December last year.
What I am proposing to do is sentence you to two years three months for the breaking, entering and stealing on 29 April. That is where you…

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 Higgins; R v Higgins

Details

AGLC: R v Higgins; R v Higgins [2014] NSWDC 356
Case: [2014] NSWDC 356
Decision Date: 12 August 2014

CaseChat Overview and Summary

In the case of R v Higgins, the defendant was brought before the Supreme Court of Victoria to address multiple criminal charges. The defendant was accused of breaking and entering, stealing, detaining with the intention of obtaining an advantage, and assault. The facts of the case involved the defendant committing a series of criminal acts that culminated in his arrest and subsequent prosecution. The defendant pleaded guilty to all charges, leading to a sentencing hearing where the court was required to determine an appropriate punishment.

The legal issues before the court included assessing the severity of the offences, the defendant’s criminal history, and the principles of sentencing. The court had to consider the totality of the offences and the circumstances surrounding each one, as well as the defendant's background and the likelihood of rehabilitation. The court also had to balance the need for punishment with the possibility of rehabilitation, ensuring that the sentences imposed were just and proportionate to the crimes committed.

The court, in delivering its judgment, took into account the nature and seriousness of the offences, the defendant's guilty plea, and his criminal history. The court acknowledged the severity of the crimes but also considered the defendant's cooperation and remorse. The court sentenced the defendant to various terms of imprisonment, with specific non-parole periods for each count. The sentences were designed to reflect the gravity of the offences while also providing an opportunity for the defendant to rehabilitate and reintegrate into society.

The final orders of the court were that the defendant be sentenced to a term of imprisonment of 4 years and 10 months for the first count, with a non-parole period of 2 years, to commence from 1 September 2014. For the second count, the defendant was sentenced to 10 months, also to commence from the same date. The third count carried a sentence of 2 years and 10 months, with a non-parole period of 2 years, again to commence from 1 September 2014. Lastly, for the fourth count, the defendant was sentenced to 1 year and 3 months, with a non-parole period of 12 months, to commence from 1 September 2013.

Orders

Orders of the court

Count 1 Sentenced to a term of imprisonment of 4 years and 10 months with a non parole period of 2 years to commence from 1 September 2014.

Count 2 Sentenced to a term of imprisonment of 10 months to commence from 1 September 2014.

Count 3 Sentenced to a term of imprisonment of 2 years and 10 months with a non parole period of 2 years to commence on 1 September 2014.

Count 4. Sentenced to a term of imprisonment 1 year and 3 months with a non parole period of 12 months to commence on 1 September 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Higgins; R v Higgins [2014] NSWDC 356
Hearing dates:	12/08/2014
Decision date:	12 August 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Count 1 Sentenced to a term of imprisonment of 4 years and 10 months with a non parole period of 2 years to commence from 1 September 2014. Count 2 Sentenced to a term of imprisonment of 10 months to commence from 1 September 2014. Count 3 Sentenced to a term of imprisonment of 2 years and 10 months with a non parole period of 2 years to commence on 1 September 2014. Count 4. Sentenced to a term of imprisonment 1 year and 3 months with a non parole period of 12 months to commence on 1 September 2013.
Catchwords:	Criminal – Sentence, break, enter and steal, detain with intention of obtaining an advantage, assault
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	R v Allen [2010] NSWCCA 47 Bugmy v The Queen [2013] HCA 37 R v Callaghan (2006) 160 A Crim R 145 Fernando John Hunter v R [2011] NSWCCA 141 R v McLaren [2012] NSWCCA 284 Muldrock v R [2011] 244 CLR 120 Munda v The Queen [2013] HCA 38 Pearce v The Queen [1998] 194 CLR 610 R v Newell [2004] NSWCCA 183 R v Speechley [2012] NSWCCA 130 R v Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	Director of Public Prosecutions Jacob Owen-John Higgins - Offender
Representation:	Solicitors: Director of Public Prosecutions Aboriginal Legal Aid Service - Offender
File Number(s):	2013/119129: 2013/245541