R v Hill

Case [2021] NSWDC 333 22 July 2021

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District Court

New South Wales

Medium Neutral Citation: R v Hill [2021] NSWDC 333
Hearing dates: 22 July 2021
Decision date: 22 July 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 6 years with a non-parole period of 3 years 6 months.

Catchwords:
CRIME – Break, Enter & Steal - Attempt Break & Enter- multiple offences
SENTENCING - Relevant factors on sentence – on parole for similar offences - long criminal history- never lived a normal community life - institutionalised offender- application of guideline judgement -accumulation and concurrence – need for structured release to the community

Legislation Cited:
Crimes Act 1900
Criminal ProcedureAct1986
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Attorney General's Application No 1 [2002] 56 NSWLR 146
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v Regina [2007] NSWCCA 1
Devaney v R [2012] NSWCCA 285
Grube v R [2005] NSWCCA 140
Markarianv The Queen (2005) 228 CLR 357
Ponfield v R [1999] NSWCCA 435; 48 NSWLR 327
Postiglione v The Queen (1997) 189 CLR 295
R v Hayes (1984) 1 NSWLR 740
RvJDX; JDX v R [2017] NSWCCA 9
R v Knight (2005) 155 A Crim R 252
R v M.A.K. & R v M.S.K. [2006] NSWCCA 381
R v Maher [2004] NSWCCA 177
R v Scott [1999] NSWCCA 434
Ryan v R [2017] NSWCCA 209
Veen v The Queen (No 2) (1988) 164 CLR 465

Category: Sentence
Parties: Nathan Troy Hill (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr E Anderson (for the offender)
Solicitors:
Morrisons Law (for the offender)
Mr L McGonigal (for the Director of Public Prosecutions)

File Number(s): 2020/00192410

SEntence

Introduction

Nathan Troy Hill entered a plea of guilty in the Local Court to five counts of Break, Enter & Steal and one count of Attempt Break & Enter: s.112(1) of the Crimes Act 1900 - maximum penalty 14 years imprisonment. He is for sentence today.
He asks that I take into account seven offences on Criminal Procedure Act 1986 Forms 1 when I sentence him for sequences 3 and 12. They involve a further five Attempt Break & Enter charges; one Break & Enter charge and one Deal with Property reasonably suspected of being Proceeds of Crime charge: maximum penalty of three years imprisonment.
The guilty pleas were all entered in the Local Court and adhered to today. A reduction of 25% of the otherwise appropriate sentence is required to reflect the utilitarian value of those guilty pleas: s25D(2)(a) Crimes (Sentencing Procedure) Act 1999.
Hill was arrested on the 29 June 2020. He has been in custody ever since. At the time of the commission of these offences he was on parole following a sentence imposed by me at Wollongong District Court on 27 August 2018: R v Hill, unreported NSWDC 27/8/2018. He had been released to parole on 24 February 2021. His parole has been revoked.

Facts for sentence

There were seven offences…

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 [2021] NSWDC 333
Case: [2021] NSWDC 333
Decision Date: 22 July 2021

CaseChat Overview and Summary

The defendant in the case, Hill, faced multiple charges of attempted break and enter, which were heard in the Supreme Court. Hill had a history of criminal behaviour and was already on parole for similar offences at the time of the alleged crimes. The prosecution argued for a stringent sentence due to the accumulation and concurrence of Hill's criminal activities, coupled with his extensive criminal record. Hill, represented by counsel, contended that the court should consider his difficult personal circumstances, including his institutionalised lifestyle, and that a structured release program might be more beneficial than an extended custodial sentence.

The court was tasked with determining the appropriate sentence for Hill's offences, taking into account his criminal history and the nature of the attempted break and enter charges. The legal issues revolved around whether the existing sentencing guidelines could be applied to Hill's situation and whether a custodial sentence was necessary or if an alternative, such as a structured release program, would be more effective. The court had to weigh the need for public protection against Hill's prospects for rehabilitation and reintegration into society.

In delivering the judgment, the court acknowledged Hill's extensive criminal history and his lack of successful reintegration into the community. Despite this, the court found that a custodial sentence was necessary to adequately address the public safety concerns arising from Hill's criminal behaviour. The court determined that a structured release program, while potentially beneficial, was not a sufficient alternative to incarceration in this instance. The court imposed an aggregate sentence of six years with a non-parole period of three years and six months. This decision aimed to balance the need for punishment and deterrence with the potential for rehabilitation and future community safety.

Orders

Orders of the court

Aggregate sentence of 6 years with a non-parole period of 3 years 6 months.

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.

Citations

AGLC Citation

R v Hill [2021] NSWDC 333

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Ryan v Regina
[2017] NSWCCA 209 Para 25

…e is no reason here to doubt the professional opinions of the psychologist, they appear well founded: Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209, at [9] and [10] . The reports did not uncritically parrot claims by an offender who does not give evidence. Nor were any expressions of good intenti…
R v JDX; JDX v R
[2017] NSWCCA 9 Para 25

…ressions of good intentions, by him reported without proper evaluation in a professional context; unlike that described Basten JA in R v JDX; JDX v R [2017] NSWCCA 9 .…
Bugmy v The Queen
[2013] HCA 37

…ct 1900 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application No 1 [2002] 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v Regina [2007] NSWCCA 1 Devaney v R [2012] NSWCCA 285 Grube v R [2005] NSWCCA 140 Markarian v The Queen (2005) 228 CLR…
Devaney v R
[2012] NSWCCA 285 Para 25

…supported by any factual detail there is no reason here to doubt the professional opinions of the psychologist, they appear well founded: Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209, at [9] and [10] . The reports did not uncritically parrot claims by an offender who does not give evidence. Nor…
Cahyadi v R
[2007] NSWCCA 1 Para 18

…and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26; Cahyadi v Regina [2007] NSWCCA 1.…
R v MAK
[2006] NSWCCA 381 Para 19

…t is recognised that the severity of a sentence increases at a greater rate than any increase in the length of the sentence: R v M.A.K. & R v M.S.K . [2006] NSWCCA 381. That said public confidence in the administration of justice requires the Court avoid any suggestion that what is in effect being offered is some ki…
Markarian v The Queen
[2005] HCA 25 Para 16

…therwise be appropriate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application…
R v Grube
[2005] NSWCCA 140 Para 16

…[2002] 56 NSWLR 146 at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18]; Grube v R [2005] NSWCCA 140.…
R v Maher
[2004] NSWCCA 177 Para 9

…thers who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely:” R v Maher [2004] NSWCCA 177 at [44]; R v Scott [1999] NSWCCA 434…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 16

…. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No 1 [2002] 56 NSWLR 146 at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18]; Grube v R [2005] NSWCCA 140.…
R v Simpson
[2001] NSWCCA 534 Para 20

…eriod for which the offender should be imprisoned must properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. It is common ground however that here are a number of factors here that justify a finding of special circumstances allowing fo…
R v Scott
[1999] NSWCCA 434 Para 9

…emselves in a similar fashion that if they come before the courts they will be punished severely:” R v Maher [2004] NSWCCA 177 at [44]; R v Scott [1999] NSWCCA 434…
R v Ponfield
[1999] NSWCCA 435 Para 13

…Care is required here. There is a Court of Criminal Appeal Guideline judgment that must be considered: Ponfield v R [1999] NSWCCA 435; 48 NSWLR 327; s42A Crimes (Sentencing Procedure) Act 1999. As Mr Anderson, counsel for Hill, noted one guide to assessing the relative seriousness of the offences now before me is th…
Regina v Simpson
[1999] NSWCCA 367 Para 20

…offender should be imprisoned must properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. It is common ground however that here are a number of factors here that justify a finding of special circumstances allowing for a long perio…
Postiglione v the Queen
[1997] HCA 26 Para 18

…of the sentences must be a “just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26; Cahyadi v Regina [2007] NSWCCA 1.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 15

…es, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…

Legislation cited in this decision · 4

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 23)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Hill [2021] NSWDC 333
Hearing dates:	22 July 2021
Decision date:	22 July 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 6 years with a non-parole period of 3 years 6 months.
Catchwords:	CRIME – Break, Enter & Steal - Attempt Break & Enter- multiple offences SENTENCING - Relevant factors on sentence – on parole for similar offences - long criminal history- never lived a normal community life - institutionalised offender- application of guideline judgement -accumulation and concurrence – need for structured release to the community
Legislation Cited:	Crimes Act 1900 Criminal ProcedureAct1986 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General's Application No 1 [2002] 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v Regina [2007] NSWCCA 1 Devaney v R [2012] NSWCCA 285 Grube v R [2005] NSWCCA 140 Markarianv The Queen (2005) 228 CLR 357 Ponfield v R [1999] NSWCCA 435; 48 NSWLR 327 Postiglione v The Queen (1997) 189 CLR 295 R v Hayes (1984) 1 NSWLR 740 RvJDX; JDX v R [2017] NSWCCA 9 R v Knight (2005) 155 A Crim R 252 R v M.A.K. & R v M.S.K. [2006] NSWCCA 381 R v Maher [2004] NSWCCA 177 R v Scott [1999] NSWCCA 434 Ryan v R [2017] NSWCCA 209 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Nathan Troy Hill (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr E Anderson (for the offender) Solicitors: Morrisons Law (for the offender) Mr L McGonigal (for the Director of Public Prosecutions)
File Number(s):	2020/00192410