R v Hillsley

Case [2006] NSWCCA 312

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v HILLSLEY [2006]  NSWCCA 312

FILE NUMBER(S):
2005/1709

HEARING DATE(S):               10 May 2006

DECISION DATE:     28/09/2006

PARTIES:
REGINA v Jeffrey John HILLSLEY (Respondent)

JUDGMENT OF:       Hodgson JA Adams J Johnson J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          2004/53, 70038/04

LOWER COURT JUDICIAL OFFICER:     Hidden J

COUNSEL:
G E Smith SC (Crown)
M Ierace SC (Respondent)

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Respondent)

CATCHWORDS:
Sentence
murder
Crown appeal
intent to cause grievous bodily harm
whether less serious than intent to kill
associated sexual assaults on different victim
inextricably connected offences
protection of community
dangerousness
no prior offences involving violence
offence itself evidence of dangerousness
life sentence

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987 s11
Crimes Act 1900 s578A
Crimes (Sentencing Procedure) Act 1999 ss 11, 61(1)

DECISION:
1.  The appeal in respect of count 1 is upheld
2.  The sentence in respect of count 1 is quashed and substituted therefor a sentence of life imprisonment to commence on 1 January 2004
3.  The appeal on counts 2 to 6 is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1709

HODGSON JA
ADAMS J
JOHNSON J

28 SEPTEMBER 2006

REGINA v Jeffrey John HILLSLEY

Judgment

THE COURT:

Introduction         

  1. The respondent, Jeffrey John Hillsley, pleaded guilty in this Court to an indictment containing six counts, the first five of which arose from a course of events occurring between 31 December 2003 and 1 January 2004.  These events involved the murder of the deceased and the aggravated sexual assault of his ten year old stepdaughter, the circumstances of aggravation being her age and threats to inflict actual bodily harm with a knife (counts 2 and 3), the kidnapping of the same child with the intention of having sexual intercourse with her (count 4) and a further aggravated sexual assault upon the child, the circumstance of aggravation being her age.  A week or two before these offences, the respondent had committed aggravated sexual assault upon the same child, the circumstance of aggravation being her age (count 6).  The offence of murder carries a maximum sentence of imprisonment for life; those of aggravated sexual assault carry maximum sentences of twenty years’ imprisonment whilst the kidnapping charge carries a maximum sentence of fourteen years’ imprisonment. 

  2. The respondent was sentenced on 4 July 2005 as follows: on count 6, imprisonment for eight years with a non-parole period of six years to date from 1 January 2004 (the date upon which he was taken into custody); on each of counts 2 and 3, imprisonment for twelve years with a non-parole period of nine years to date from 1 January 2008; on count 4 imprisonment for seven and a half years with no non-parole period set, to date from 1 January 2009; on count 5 imprisonment for twelve years with a non-parole period of nine years to date from 1 January 2010 and on count 1 imprisonment for sixteen years with a non-parole period of eleven years to…

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AGLC
R v Hillsley [2006] NSWCCA 312
Case
[2006] NSWCCA 312
Decision Date

CaseChat Overview and Summary

The appeal in this case was brought by the Director of Public Prosecutions against the sentences imposed on Jeffrey John Hillsley, who was found guilty of multiple serious offences. The primary dispute centred around the adequacy of the sentences for murder, kidnapping, and various aggravated sexual assaults. The case was heard in the Court of Criminal Appeal in New South Wales. The key legal issues were whether the sentence for murder was manifestly inadequate, and if so, whether it should be increased to life imprisonment or significantly raised, and whether the sentences for other associated offences were appropriate.

The Court of Criminal Appeal reviewed the submissions from the Director of Public Prosecutions, who argued that the sentence for murder was too lenient and that the sentences for the other offences did not adequately reflect the gravity of the crimes committed. The court considered the nature of the crimes, the impact on the victims, and the need to protect the community. The Crown argued that the individual sentence for murder should have been life imprisonment, given the heinous nature of the crime and the danger posed by the offender. The Crown also contended that the sentences for the other offences, particularly the sexual assaults and kidnapping, should have been increased to reflect their severity.

In its reasoning, the Court of Criminal Appeal found that the original sentence for murder was indeed inadequate. The Court determined that the heinous nature of the murder, coupled with the additional offences of aggravated sexual assault and kidnapping, warranted a life sentence to protect the community from the accused. The Court also found that the sentences for the other offences were not adequately cumulative and should be increased to reflect the seriousness of the crimes. The Court emphasised the need for the sentences to reflect the gravity of the crimes and to ensure the accused's dangerousness was appropriately addressed.

As a result of the appeal, the Court ordered that the sentence for murder be increased to life imprisonment, and that the sentences for the other offences be adjusted to ensure they appropriately reflected the severity of the crimes committed. This decision underscores the importance of ensuring that sentences for serious crimes adequately reflect the harm caused and the need to protect the community.

Orders

Orders of the court

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Background

Background to the litigation

On 24 August 2005 the Director of Public Prosecutions gave notice of appeal against the inadequacy of the sentences imposed on the respondent. In submissions, the appeal was refined by senior counsel on behalf of the Director to contentions that the individual sentence for murder was manifestly inadequate and should have been life imprisonment or, if life imprisonment was not necessitated by virtue of the provisions of s61(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence should be significantly increased. In connection with the aggravated sexual assault offences committed on the stepdaughter of the deceased, it was submitted that the sentences for counts 2 and 3 ought not to have been entirely concurrent, whilst the accumulation of the sentence for the subsequent aggravated sexual assault (count 5) did not reflect the significant additional criminality represented by that crime. It was also submitted that the sentence for the kidnapping offence (count 4) ought not to have been entirely subsumed by the sentences for counts 2 and 3 but should have been accumulated so as to mark an additional substantial punishment for this offence. During argument, however, the Crown prosecutor conceded, in substance, that if the Court allowed the appeal in respect of the murder sentence and increased it to life imprisonment (so that he could not be considered for release on parole) the argument that the sentences for the other offences should be varied was much weakened.Facts The facts were not in dispute although several potentially important inferences that were drawn from the facts by the learned sentencing judge were contended by the Crown to be wrong. The following account of the facts is largely taken from the learned sentencing judge’s reasons for sentence together with some added non-controversial material from the evidence that was tendered before him. (For ease of reading, most quotation marks and other ancillary editorial indications have been omitted). His Honour said – “The basic facts are not in dispute, although the offender’s state of mind at the time of the killing is an important issue which I must determine. Before me is an agreed statement of facts, which I should set out in its entirety (referring to the child as “J” and her mother as “Ms H”):1.The deceased…operated a small cleaning business. During 2003, he made the acquaintance of, and befriended, the accused, Jeffrey John Hillsley. The accused resided at unit 505/71-75 Regent Street, Chippendale; the deceased had the cleaning contract for this building.2.The deceased resided…with his wife, their two small children, and [a] daughter by a previous marriage, J (aged 10 years).3.On about 23 December, 2003, the accused, at the invitation of the deceased, arrived at…[the deceased’s home] to spend the Christmas period with the deceased and his family. The accused stayed there until 27 December, when, following an argument with the deceased, he left.4.On 31 December, 2003, the accused armed himself with a hammer and a knife and set out on foot from his home at Chippendale for the deceased’s home... At about 10.30 pm on that date, he entered the deceased’s home via an unlocked window. At this time the deceased and the three children were asleep in their beds; the deceased’s wife was at work.5.The accused entered the bedroom where the deceased was sleeping. He struck the deceased about the head with the hammer, inflicting fatal injuries.6.The accused then went to the bedroom where J was sleeping. He awoke her. He threatened her with the knife, threatening to kill her if she did not obey him. He then took her to the rear shed/garage of the premises, where he sexually assaulted her (orally and vaginally).7.The accused then forced J to accompany him on foot on a journey through the streets of several suburbs. At about 7.00 am on 1 January, 2004, in an area in the vicinity of the Chullora Railway Yards, he again sexually assaulted her (anally). He then continued to lead her through the streets until about 3.00 pm on the same day, by which time they had returned to the Campsie area. At this time, J escaped from the accused, and ran home in a distressed state, where she met police engaged in the search for her.8.At about 8.30pm, police searching for the accused were informed of the presence of a man in the storm water drain at Campsie. Upon investigating they discovered the accused, and arrested him.9.The accused participated in an electronically recorded interview with investigating police on 1 January, 2004. The accused made detailed admissions in relation to the offences with which he was charged. He admitted going to the deceased’s home on the evening of 31 December, 2003, armed with a knife and a hammer. He admitted that his purpose in so doing was firstly to assault the deceased; and secondly, to obtain sexual gratification from the deceased’s 10 year old daughter. He admitted entering the deceased’s house through a window. He admitted striking the deceased’s head with the hammer, as the deceased lay in his bed. He admitted to then rousing J from her bed, threatening to kill her with the knife, taking her to the shed/garage at the rear of the premises, and sexually assaulting her (orally) and attempting anal and vaginal sexual intercourse with her. He admitted to then forcing J to accompany him on foot on a journey from the deceased’s home, through several suburbs, and lasting through the night and into the next day. He admitted that during this period, whilst in the vicinity of the Chullora Railway Yards, he again sexually assaulted J (anally).10.The accused also admitted that he had sexually assaulted J (orally) whilst staying in the deceased’s home earlier in December.11.J told police that she was sexually assaulted (orally, vaginally) by the accused in the garage of her home; taken from her home by the accused; again sexually assaulted (anally) by the accused, and later she escaped from him. She also disclosed that she had a few days earlier been sexually assaulted by the accused in her home.12.DNA from a blood-stained hammer found in the deceased’s garage was matched with that of the deceased, and of the accused. A knife was also found in the garage.13.A post-mortem examination of the deceased concluded that the cause of his death was “multiple blunt force injuries to the head”. Thirteen injuries were identified by Dr Duflou externally on the head of the deceased. Internal examination of the head revealed what Dr Duflou describes as “very extensive injury” and “massive skull fracturing”. The brain “showed very extensive injury”.

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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