R v Hoadley
[2002] NSWCCA 39
•15 February 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Hoadley [2002] NSWCCA 39
FILE NUMBER(S):
60482/01
HEARING DATE(S): 15/02/02
JUDGMENT DATE: 15/02/2002
PARTIES:
Regina (Resp)
Robert Hoadley (Appl)
JUDGMENT OF: Kirby J Buddin J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 00/31/0430
LOWER COURT JUDICIAL OFFICER: Armitage DCJ
COUNSEL:
P G Ingram (Crown - Resp)
P M Winch (Appl)
SOLICITORS:
S E O'Connor (Crown - Resp)
D J Humphreys (Appl)
CATCHWORDS:
Criminal Law & Procedure
Sentence
Appeal against severity
LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
DECISION:
Appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60482/01
KIRBY J
BUDDIN JFriday 15 February 2002
REGINA V Robert glenn hoadley
Judgment
KIRBY J: Mr Robert Glenn Hoadley pleaded guilty before Armitage DCJ to an offence of having robbed Kevin Robert Taverner of a mobile phone on 16 October 2000 (s94 of the Crimes Act 2000). The maximum penalty for that offence is fourteen years. His Honour sentenced Mr Hoadley to a term of imprisonment of two years with a non parole period of one and half years. The sentence was to date from the time of Mr Hoadley’s arrest on 16 October 2000 when he was taken into custody.
The sentence was imposed on 2 March 2001. On 19 July 2001 an application for leave to appeal against the severity of that sentence was prepared. It was received by the Registry on 24 July 2001, well outside the time limited for appeal. Accordingly, Mr Hoadley seeks an extension of time as well as leave to appeal against the sentence he is now serving.
The sentencing Judge described the circumstances in which the robbery took place. At 9am on 16 October 2000 the victim, Kevin Taverner, approached an automatic teller machine in Adamstown. As he crossed the road to the Adamstown Post Office he was followed by Mr Hoadley. An argument ensued. Mr Hoadley knocked Mr Taverner to the ground, causing him to fall backwards over a small fence. It was then that Mr Hoadley noticed a mobile phone belonging to Mr Taverner. It was conceded that Mr Hoadley removed that phone by force.
As it happened the incident was observed by the police. They spoke to Mr Hoadley. The mobile phone was then found in his possession. He was then arrested and charged.
Mr Hoadley did not give evidence on sentence. However, his older brother did so. His brother described changes that he had observed in Mr Hoadley since his arrest. Mr Hoadley had, in the past, served a number of terms of imprisonment. So far as his family was concerned he had done so with an attitude of bravado and defiance. The brother of Mr Hoadley said that, on his observation, that had changed. Mr Hoadley, according to his brother, at last appeared to recognise the seriousness of his situation and the need for change.
His brother in these circumstances indicated to the court that he was prepared to assist. He was prepared to offer accommodation and employment. He had a successful earth moving business. I will return to this aspect in a moment.
Mr Hoadley’s criminal record was placed before his Honour. It is clear that at various times he has had an association with drugs. He had what his Honour termed “an extensive criminal record” mostly for offences of dishonesty, although more recently, and disturbingly, for offences which involved having a knife in a public place. He had served terms of imprisonment that had been imposed from time to time, which varied in length from one month to six months. His Honour remarked on the objective seriousness of the offence and the need to deter Mr Hoadley and others who may be tempted to commit similar offences. His Honour then imposed the terms of imprisonment to which I have referred.
In helpful written submissions made on behalf of Mr Hoadley, two issues have been raised: first, complaint is made that his Honour failed to find special circumstances under s44(2) of the Crimes (Sentencing Procedure) Act 1999 and thereby alter the ratio between the head sentence and the non parole period.
Second, that in determining that issue, his Honour gave too little weight or misstated the affect of the brother’s evidence and the opportunity which was offered for rehabilitation of this offender.
It is convenient to deal with the second issue first, since it lies at the heart of the suggestion that there was an error by his Honour in failing to find special circumstances. His Honour in his remarks on sentence said: (at p3)
“I had regard to the evidence given today by the prisoner’s brother. It seems that there is at least some possibility and I put it no higher than that, that he has a genuine desire to mend his ways and to endeavour to gain productive employment.”
That was a judgment on an issue of fact, and a matter of a evaluation which was before the sentencing Judge, he having heard the evidence, having seen the brother, and noted, no doubt, that Mr Hoadley had not given evidence before him. It clearly was, in my view, a judgment open to him. The applicant had an extensive criminal record. That, no doubt, was the reason for his Honour’s cautious optimism. I see no error in his Honour’s approach.
Returning to the first issue, plainly his Honour gave consideration to the issue of special circumstances. Again, he made a judgment that the circumstances of the applicant did not amount to special circumstances for the purposes of the Act or that he would not so regard them. As recently noted in Regina v Simpson [2001] NSWCCA 534 para 73, there are well known constraints upon an appellate court interfering in such a determination. The view which his Honour formed was, in my opinion, open to him. I see no occasion on this material to interfere.
The order I therefore propose is that leave be granted extending the time to file the notice of appeal and leave to appeal be granted but the appeal be dismissed.
BUDDIN J: I agree.
KIRBY J: The order of the Court will be as proposed by me.
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LAST UPDATED: 26/02/2002
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