R v Hopoi - [2014] NSWCCA 263

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Hopoi [2014] NSWCCA 263
Hearing dates: 27 October 2014
Decision date: 26 November 2014
Before: Hoeben CJ at CL at [1]
R A Hulme J at [2]
Davies J at [3]
Decision:
1. Appeal allowed.
2. Remit the matter to the District Court for sentence of the Respondent according to law.

Catchwords: CRIMINAL LAW - sentence - robbery with wounding - deferral of sentence under s 11 Crimes (Sentencing Procedure) Act - crown appeal - where deferral appropriate - sentencing judge places emphasis on rehabilitation - no finding of objective seriousness - custodial sentence ordinarily required - sentence of deferral manifestly inadequate
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 XCLR 462
R v Brown [2009] NSWCCA 6; 193 A Crim R 574
R v Farrell [2014] NSWCCA 30
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Thomas [2007] NSWCCA 269
R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
Category: Principal judgment
Parties: Crown (Applicant)
Sione Ahoakotau Hopoi (Respondent)
Representation: Counsel:
J Girdham SC (Crown)
C Smith (Respondent)
Solicitors:
Solicitor for Public Proscecutions (Crown)
Legal Aid of NSW (Respondent)

File Number(s): 2012/314809
Decision under appeal

Date of Decision:

2014-07-23 00:00:00

Before:

Williams DCJ

File Number(s):

2012/314809

Judgment

HOEBEN CJ AT CL: I agree with Davies J.

R A HULME J: I agree with Davies J.

DAVIES J: On 10 July 2013 the Respondent pleaded guilty at Burwood Local Court to robbery in circumstances of aggravation with wounding contrary to s 96 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment.

On 23 July 2014 Judge Williams in the District Court sentenced the Respondent by adjourning the proceedings to 29 October 2014 pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour intended that by that date there would be a report from Probation and Parole or Community Corrections Service in respect of the matters provided for in s 11 and particularly the Respondent's rehabilitation progress.

The Sentencing Judge imposed a number of conditions on the deferral including abstinence from alcohol and illicit drugs, and participation in all programs required by the Respondent's case manager.

The Crown now appeals on the basis that the sentence is manifestly inadequate.

Some days after the appeal was argued, the parties informed the Court that when the matter came back before the Sentencing Judge for review on 29 October 2014 his Honour had adjourned the matter for sentence on 6 February 2015 and had ordered an assessment of the Respondent for an Intensive Corrections Order. This Court required the parties to provide a transcript of the hearing on 29 October…

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 Hopoi

Details

AGLC: R v Hopoi [2014] NSWCCA 263
Case: [2014] NSWCCA 263
Decision Date: 26 November 2014

CaseChat Overview and Summary

The matter of R v Hopoi came before the court in the context of a criminal appeal by the Crown against the sentence imposed on the appellant, Hopoi, for his conviction of robbery with wounding. The appellant had pleaded guilty to the charge and was sentenced by a sentencing judge to a period of detention followed by a deferred sentence. The Crown appealed the sentence on the grounds that it was manifestly inadequate.

The central legal issue before the court was whether the sentence of deferral was appropriate in the circumstances. Specifically, the court had to determine whether the sentence imposed was manifestly inadequate, considering the need for denunciation and deterrence, as well as the appellant's culpability and the objective seriousness of the offence. The Crown argued that the sentence was inadequate because it did not adequately reflect the seriousness of the crime and the need for appropriate punishment and deterrence.

In delivering its judgment, the court noted that while the sentencing judge had placed a significant emphasis on the appellant's prospects for rehabilitation, there was no finding of objective seriousness made. The court held that the sentencing judge had failed to adequately consider the need for denunciation and deterrence, which are critical factors in sentencing for offences of this nature. The court concluded that a custodial sentence was ordinarily required for such offences and that the sentence of deferral was manifestly inadequate. The appeal was therefore allowed, and the matter was remitted to the sentencing court for reconsideration of the appropriate sentence.

Orders