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R v Hookey

R v Hookey

Case [2018] NSWCCA 147 20 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Hookey [2018] NSWCCA 147
Hearing dates: 27 April 2018
Date of orders: 20 July 2018
Decision date: 20 July 2018
Before: Hoeben CJ at CL [1];
Rothman J at [2];
Button J at [70]
Decision:
(1) Appeal dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – Crown appeal – wound with intent – failure to aggravate sentence because of use of weapon – use of weapon considered by sentencing judge in assessing objective seriousness – use of weapon is aggravating factor, but no error because taken into account – impermissible to double count – manifest inadequacy – seemingly insufficient or no regard to maximum sentence and standard non-parole period – outside range for this offence and this offender – residual discretion – significant rehabilitation – Crown did not persuade the Court to intervene – residual discretion exercised
APPEAL – Crown appeal against sentence – purpose of Crown appeal – residual discretion not to intervene exercised
Legislation Cited: Crimes (Appeal and Review) Act 2001, s 68A
Crimes (Sentencing Procedure) Act 1999, s 21A
Crimes Act 1900, s 33(1)
Criminal Appeal Act 1912, s 5D
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Duncombe v R [2013] NSWCCA 271
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Green v the Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Newman v R [2015] NSWCCA 270
R v Baker [2000] NSWCCA 85
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Tait (1979) 24 ALR 473; 46 FLR 386
R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: The Queen (Appellant)
Tristan Hookey (Respondent)
Representation:
Counsel:
A Mitchelmore (Appellant)
J Stratton SC (Respondent)
Solicitors:
Director of Public Prosecutions (NSW) (Appellant)
Mallinson & Rake Lawyers (Respondent)

File Number(s): 2016/348073
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 December 2017

Before:

Williams DCJ

File Number(s):

2016/348073

Judgment

HOEBEN CJ at CL: I agree with Rothman J and the order which he proposes. As Rothman J has set…

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 Hookey

Details

AGLC: R v Hookey [2018] NSWCCA 147
Case: [2018] NSWCCA 147
Decision Date: 20 July 2018

CaseChat Overview and Summary

The appeal before the Court was from a conviction for wounding with intent. The Crown appealed the sentence imposed on the respondent, Hookey, arguing that it was manifestly inadequate. The appeal was heard in the Court of Appeal. The primary issue before the Court was whether the sentence imposed by the primary judge was manifestly inadequate. This involved assessing whether the primary judge had failed to sufficiently regard the maximum penalty and standard non-parole period, and whether the sentence was outside the range for this offence and this offender. The Court also needed to determine whether the primary judge had exercised the residual discretion to intervene appropriately.

The Court found that the primary judge had considered the use of a weapon as an aggravating factor, but had not erred in taking it into account. The Court held that it was impermissible to double count the use of a weapon as an aggravating factor. The Court further found that the primary judge had given seemingly insufficient or no regard to the maximum penalty and standard non-parole period, and that the sentence was outside the range for this offence and this offender. However, the Court held that the primary judge had exercised the residual discretion not to intervene appropriately, taking into account the significant rehabilitation of the respondent. The Crown did not persuade the Court to intervene, and the Court exercised its residual discretion not to intervene.

The Court dismissed the Crown's appeal against sentence. The Court held that the sentence imposed by the primary judge was not manifestly inadequate, and that the primary judge had exercised the residual discretion appropriately. The Court did not make any orders altering the sentence imposed by the primary judge.

Orders