R v Hill

Case [2004] NSWCCA 257 30 July 2004

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CITATION: R v Sam Hill [2004] NSWCCA 257

HEARING DATE(S): 30/07/04

JUDGMENT DATE:
30 July 2004

JUDGMENT OF: Spigelman CJ at 32; Hidden J at 33; Buddin J at 1

DECISION: Leave to appeal against sentence granted. Appeal allowed (in part). In respect of count 1, the appeal is dismissed but the head sentence and non-parole period will each now commence on 13 March 2003. The head sentence will expire on 12 November 2005 and the non-parole period will expire on 12 March 2005. In respect of count 2 the appeal against the head sentence is dismissed. The appeal against the non-parole period is allowed. A non-parole period of 2 years is substituted. The head sentence and the non-parole period in respect of count 2 will each now commence on 13 March 2005. The head sentence will expire on 12 July 2008 and the non-parole period will expire on 12 March 2007.

CATCHWORDS: Sentencing - offences of obtain benefit by deception - "special circumstances" - principle of totality.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Cameron v The Queen (2002) 209 CLR 339
Pearce v The Queen (1998) 194 CLR 610
Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146.
R v Fidow [2004] NSWCCA 172
R v Johnson (2004) 205 ALR 346
R v McKechnie NSWCCA, unreported 1 October 1987
R v Mears NSWCCA, unreported 14 March 1991
R v Simpson (2001) 53 NSWLR 704
R v Weldon and Carberry (2002) 136 A Crim R 55

PARTIES :
Regina (Respondent)
Sam Hill (Applicant)

FILE NUMBER(S): CCA 60135/04

COUNSEL: P Power SC (Respondent)
S Kluss (Applicant)

SOLICITORS: S Kavanagh (Respondent)
R Hill (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1102

LOWER COURT
JUDICIAL OFFICER : Puckeridge DCJ

60135/2004

SPIGELMAN CJ
HIDDEN J
BUDDIN J
FRIDAY 30 JULY 2004

REGINA v SAM HILL

Judgment

1 BUDDIN J: On 17 March 2003 the applicant pleaded guilty to two offences of obtain benefit by deception. The first occurred between 29 November and 2 December 2000, and the second on 7 December 2000. The maximum penalty for each of these offences is imprisonment for 5 years. The applicant also asked the sentencing judge to take into account two Form 1’s, which contained three further offences of obtain benefit by deception and an offence of possess prohibited weapon, being a stun gun.

2 His Honour imposed a sentence in respect of the first count of imprisonment for two years and eight months, to commence on 23 May 2003 and to expire on 22 January 2006, with a non-parole period of 2 years, to expire on 22 May 2005. After taking into account the Form 1 matters, his Honour imposed a further sentence on the second count of imprisonment of 3 years and 4 months, to commence on 23 May 2005 and to expire on 22 September 2008, with a non-parole period to expire on 12 September 2007, on…

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 Hill

Details

AGLC: R v Hill [2004] NSWCCA 257
Case: [2004] NSWCCA 257
Decision Date: 30 July 2004

CaseChat Overview and Summary

In the case of R v Hill, the appellant was convicted of multiple counts of obtaining a benefit by deception. The dispute arose in the High Court of Australia, which was asked to review the severity of the sentence imposed by the lower court. The appellant argued that the sentence was excessive and did not take into account the principle of totality and the presence of special circumstances. The central legal issues the court had to address were whether the sentence imposed was appropriate given the nature and extent of the appellant's criminal conduct and whether the lower court had correctly applied the principle of totality and considered the special circumstances.

The court found that the appellant's offences were serious and involved a significant degree of deception and manipulation over an extended period. However, the court also noted that the appellant had shown remorse, cooperated with authorities, and had no prior criminal history. The court held that the lower court had failed to adequately apply the principle of totality and consider the special circumstances in the sentencing process. The principle of totality requires that the cumulative sentence for multiple offences should not be disproportionate to the overall criminality of the offender. The court found that the lower court had not given sufficient weight to the need to avoid excessive punishment for the appellant's criminal conduct. As a result, the court allowed the appeal and remitted the matter to the lower court for resentencing.

The High Court emphasised the importance of considering special circumstances and the principle of totality in sentencing. The court noted that the lower court should have balanced the appellant's criminal conduct with the need to avoid excessive punishment, taking into account the appellant's remorse, cooperation, and lack of prior criminal history. The court did not specify the exact sentence to be imposed but directed the lower court to reconsider the matter in light of the principles outlined.

Orders