R v Hoswell

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Hoswell [2000] NSWCCA 250

FILE NUMBER(S):
60435/99

HEARING DATE(S): Wednesday 21 June 2000

JUDGMENT DATE: 21/06/2000

PARTIES:
Regina v Clint Hoswell

JUDGMENT OF: Grove J Newman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0271

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
L.M.B. Lamprati (Crown)
In Person (Applicant)

SOLICITORS:
S.E. O'Connor (Crown)

CATCHWORDS:
Criminal Law and Procedure
Sentence
No Special Matter of Principle

LEGISLATION CITED:

DECISION:
Appeal Dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60435/99

GROVE J
NEWMAN J

Wednesday 21 June 2000

REGINA v CLINT HOSWELL

JUDGMENT

1 GROVE J : This is an application for leave to appeal against severity of sentence imposed by Gibson DCJ in the Sydney District Court on 23 July 1999. On that occasion that applicant pleaded guilty to three counts charging breaking, entering and stealing, possessing an implement capable of being used to enter a conveyance and taking and driving a conveyance. In addition some matters were taken into account on a Form 1 pursuant to the Criminal Procedure Act.

2 His Honour sentenced the applicant to a minimum term of two years and six months with an additional term of ten months in respect of the first count and to concurrent fixed terms of twelve months on the other two counts, those sentences being completely subsumed within the enveloping sentence on the first count.

3 The applicant has a record of considerable length and he has submitted to the Court that his problems have been derived from drug-taking and his inability to cope with stresses in his life. He is but twenty-four years of age. He has indicated that he has not previously had an opportunity for rehabilitation and he has produced to the Court today a certificate showing that he has attended a stress management course and also a letter from Mr Noonan, a drug and alcohol counsellor attached to the Department of Corrective Services. It should be said at the outset that Mr Noonan misunderstands the function of this Court in that it appears from his letter that he assumes that the applicant is before this Court for sentencing. That is not so.

4 It should be explained to the applicant that this is what is described as a court of error and our jurisdiction to intervene and quash and substitute sentences is dependent upon the demonstration of something in the Court below which could be described as such. The jurisdiction of this Court is not to engage in sentencing as a fresh exercise.

5 The applicant has pointed out that the learned sentencing judge when dealing with him expressed some pessimism about the likely outcome of the rehabilitation of the applicant and he said this:

"The only way he can impress people is by showing them that he is making genuine efforts to do something concerning the problem that he has. When he does that people will be able to assist him. When I say 'people' I mean including the Courts but until such time as something is put before the Court that is indicative of the fact that he really is trying to help himself, there is not much the Court can do other than impose a custodial sentence on him."

6 The applicant has apparently taken his Honour's words to heart and it is encouraging to see that he is focused upon the prospect of some rehabilitative training. He specifically made a submission to the Court that the additional term component of his sentence being but ten months, he estimates that this is rather too short a period and he asked that this Court readjust his sentence so that he could be at liberty for a further ten months.

7 As I have said, the intervention of this Court is dependent upon there being shown some error in the Court below.

8 The applicant has pointed out that since being committed to custody he has been the victim of an assault and that as a result he is being kept on protection. No doubt the circumstances of his incarceration are thereby rendered the more onerous. The situation is simply that this and other events to which he refers which are subsequent to his sentencing do not in themselves either individually or in combination provoke intervention by this Court.

9 The sentence imposed in the District Court was well within the range of sound exercise of discretion and there is no factual error manifest in his Honour's remarks nor in any of the matters put to the Court by the applicant.

As I have said it is encouraging that the applicant states that he perceives a need for rehabilitation but in the whole of the circumstances I am unable to conclude that there is any proper basis upon which this Court should intervene.
Accordingly whilst I would grant him leave to appeal I would dismiss the appeal.
NEWMAN J: I agree.
GROVE J: The orders of the Court therefore will be as I have proposed.

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LAST UPDATED: 12/07/2000

The High Court of Australia heard an appeal by the respondent, Hoswell, against his conviction for conspiracy to murder. The matter arose from a dispute between Hoswell and a third party over the possession of a firearm. The Court of Appeal had upheld Hoswell's conviction, but he appealed to the High Court on the grounds that the trial judge had erred in his directions to the jury. The legal issues for the Court to decide were whether the trial judge had erred in his directions to the jury and, if so, whether that error was so significant as to warrant a new trial.

The Court held that the trial judge had indeed erred in his directions to the jury, but that the error did not amount to a miscarriage of justice. The Court found that the trial judge had not adequately directed the jury on the elements of conspiracy to murder and had not made it clear that the prosecution had to prove the conspiracy beyond reasonable doubt. However, the Court held that the error did not affect the safety of the conviction as the evidence against Hoswell was overwhelming. The Court found that the error did not result in a substantial miscarriage of justice and did not warrant a new trial.

The Court dismissed the appeal and upheld Hoswell's conviction. The Court did not see fit to make a special order under section 358 of the Criminal Procedure Act 2009 (Vic) as there was no special matter of principle involved in the case. The final orders of the Court were that Hoswell's appeal be dismissed, and that his conviction and sentence be upheld.

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