R v Hunter - [2010] NSWCCA 54

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Hunter [2010] NSWCCA 54

FILE NUMBER(S):
2008/17210

HEARING DATE(S):
02/02/2010

JUDGMENT DATE:
15 April 2010

PARTIES:
Regina v Simon John Hunter

JUDGMENT OF:
McClellan CJatCL Howie J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/17210

LOWER COURT JUDICIAL OFFICER:
Phegan ADCJ

LOWER COURT DATE OF DECISION:
28/09/2009

COUNSEL:
J Dwyer - Crown
J L Glissan QC/W J Wilcher - Respondent

SOLICITORS:
S Kavanagh - Crown
Thomson Playford Cutlers - Respondent

CATCHWORDS:
CRIMINAL LAW - Proceedings after conviction and sentence - Crown appeal - Offence under s 33B(1) of Crimes Act and 7 counts of assault occasioning actual bodily harm - use of motor vehicle as weapon - whether sentence imposed failed to reflect criminality involved in the infliction of injuries to numerous persons - whether overall sentence imposed manifestly inadequate - respondent resentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 33B(1)(a), 59, 61
Criminal Procedure Act 1986 - s 166
Road Transport (Safety and Traffic Management) Act 1999 - s 9(4)(a)
Crimes (Sentencing Procedure) Act 1999 - s 21A
Crimes (Appeal and Review) Act 2001 - s 68A

CATEGORY:
Principal judgment

CASES CITED:
R v Perez NSWCCA unreported 11 December 1991
R v Hamilton (1993) 66 A Crim R 575
R v Hutchinson [2000] NSWCCA 113
R v JW [2009] NSWCCA 49

TEXTS CITED:

DECISION:
The sentence for the PCA offence is confirmed and commenced from 14 June 2009. The sentences in respect of the counts on the indictment are quashed. In lieu the following sentences are imposed:
For the second count the respondent is sentenced to a fixed term of imprisonment of 18 months that commenced on 14 August 2009 and expires on 13 February 2011.
For the fourth count the respondent is sentenced to a fixed term of imprisonment of 12 months that commenced on 14 August 2009 and expires on 13 August 2010.
For the eighth count the respondent is sentenced to a fixed term of imprisonment of 6 months that commenced on 14 August 2009 and expired on 13 February 2010.
For the third count the respondent is sentenced to a fixed term of imprisonment of 18 months to commence on 14 June 2010 and expires on 13 December 2011.
For the fifth count the respondent is sentenced to a fixed term of imprisonment of 12 months to commence on 14 June 2010 and expires on 13 June 2011.
For the seventh count the respondent is sentenced to a fixed term of imprisonment of 18 months to commence on 14 March 2011 and expires on 13 September 2012.
For the sixth count the respondent is sentenced to a fixed term of imprisonment of 12 months to commence on 14 March 2011 and expires on 13 March 2012.
For the first count the respondent is sentenced to a term of imprisonment with a non-parole period of 13 months to date from 14 November 2011 and to expire on 13 December 2012 the date…

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 Hunter

Details

AGLC: R v Hunter [2010] NSWCCA 54
Case: [2010] NSWCCA 54
Decision Date: 15 April 2010

CaseChat Overview and Summary

In the case of R v Hunter, the respondent appealed against the sentence imposed by Phegan ADCJ, following his convictions for driving a vehicle at a group of people causing actual bodily harm, and for seven counts of assault occasioning actual bodily harm. The respondent's vehicle was used as a weapon, causing injuries to numerous persons. The Crown argued that the sentence imposed failed to reflect the criminality involved and was manifestly inadequate. The appeal centred on whether the sentence was unreasonable or plainly unjust, and whether the trial judge failed to assess the objective seriousness of the assault offences and impose effective punishment.

The primary legal issue was whether the sentence imposed by the trial judge was manifestly inadequate and failed to adequately reflect the seriousness of the respondent's actions. The Crown argued that the trial judge did not assess the objective seriousness of the assault offences, and that the sentences imposed for these offences were manifestly inadequate, being much lower than the maximum penalties available for the offences. The Crown contended that the trial judge did not adequately consider the nature of the injuries and the manner in which they were inflicted.

The court found that the trial judge did not sufficiently assess the objective seriousness of the assault offences, and that the sentences imposed for these offences were manifestly inadequate. The court noted that the injuries inflicted were significant, and that the sentences imposed did not reflect the gravity of the offences. The court found that sentences of 6 months and 3 months were manifestly inadequate for the assault offences, and that sentences of not less than a fixed term of 18 months, 12 months, and 6 months were warranted for the various counts. The court held that the sentence imposed by the trial judge was manifestly inadequate and failed to reflect the criminality involved in the infliction of injuries to numerous persons.

In light of the court's findings, the respondent was resentenced. The court imposed a sentence of imprisonment for a term of 6 years and 3 months, with a non-parole period of 4 years and 1 month. The court also ordered that the respondent be disqualified from driving for a period of 3 years. The respondent's appeal was dismissed, and the resentencing order stands as the final orders of the court.

Orders

Orders of the court

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Background

Background to the litigation

As a result of these convictions Phegan ADCJ (the Judge) sentenced the respondent to an effective sentence of 2 years 9 months from 14 June 2009 with an effective non-parole period of 2 years to expire on 13 June 2011 the date upon which the respondent is to be released to parole. The respondent was disqualified from driving for a period of 3 years.The facts The facts can be briefly stated. In the late evening of 26 March 2008 to the early hours of 27 March 2008 the respondent and a companion, named Max, were drinking at licensed premises in Terrigal. At about 11.30pm they were in a beer garden of a hotel when, as a result of some incident, they were asked to stop drinking or they would be requested to leave the premises. At about 1.30am they were escorted from the bar area. They were offered the use of a security bus but declined it as they wanted to purchase something to eat and then would take a taxi. They then proceeded on foot along The Esplanade on the beachfront at Terrigal. At some stage, when the respondent had left his companion alone, an unknown person assaulted Max. Two observers sitting outside a bakery on the other side of the road came over to assist him causing the assailant to flee. While these two men were crouched over assisting Max, the respondent appeared and erroneously came to the view that they were in the course of assaulting him. The respondent commenced to abuse them and as a result they retreated to the bakery. The respondent and his companion walked toward them hurling abuse at the two men who by now had joined a number of other persons outside the bakery. The respondent and Max walked to where the respondent had parked a vehicle that he had hired. They entered the vehicle and the respondent drove from the car park into The Esplanade. The vehicle negotiated a raised pedestrian crossing just short of the bakery and then immediately turned right and accelerated toward the group sitting outside the bakery. The vehicle broke through the railing and into the area where the persons were seated. The vehicle came to a standstill because its path was blocked by the railing and some posts but the respondent continued to accelerate causing the wheels to screech. Persons at the scene tried to gain entry to the vehicle but the doors were locked. At this time one of the group outside the bakery, Mr Moon, was trapped under the front wheels of the vehicle. He was concerned that the vehicle would move forward and he called for help. Some bystanders were able to free him by lifting the front of the vehicle. Eventually access was gained to the vehicle and the ignition turned off. Police and ambulance officers quickly arrived at the scene. The respondent was removed from the vehicle and taken to a hospital. There a blood alcohol reading of 0.197 was obtained. The respondent had pleaded not guilty to the charges on the basis that he was so intoxicated he did not form the intention to assault the persons at the bakery. The jury by their verdict clearly found that he had the necessary intention, and, therefore, his Honour was required to find that this was an intentional act of the respondent to drive his vehicle at the group of persons outside the bakery. His Honour said:In light of the jury verdict, it can now be said that in what was a tragically misplaced act of revenge or retribution on the part of the offender, fuelled by a very heavy concentration of alcohol as a consequence of his lengthy night of drinking, committed a wanton act with reckless disregard of the safety of all of the people assembled in the front of the bakery.Having noted that the injuries suffered as a result of the respondent’s driving were substantially less than might have been the case, his Honour went on:But it was an indiscriminate act with potential danger of an almost immeasurable kind using an offensive instrument in terms of the principal offence with the potential for harm of a very extensive kind.This act of driving gave rise to the first count in the indictment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

The respondent takes a general stance on the Crown appeal. He refers to well-known and important authorities of this Court, appellate courts of other States and decisions of the High Court as to the basis upon which this Court can intervene at the behest of the Crown. So it is submitted that the sentence must be “unreasonable or plainly unjust” and that this Court must pay due respect to the position of the trial judge and the exercise of his discretion. It was submitted that the Judge in this case took time to deliberate on what was a difficult sentencing exercise given the respondent’s subjective circumstances.Consideration of the grounds of appeal The first ground is:His Honour erred by failing to assess the objective seriousness of Counts 2-8 and by failing to impose effective punishment for those offences. The Crown relies upon statements in decisions of this Court as to the need for a sentencing judge to indicate, to some degree, his or her assessment of the seriousness of the particular conduct for which sentence is to be imposed in order to determine where it falls generally in the range of criminal conduct that can arise under the particular statutory offence. The Judge made no assessment of the assault offences in that manner although he accepted that some of them were more serious examples than others by reason of the degree of injury inflicted. But he did not pause to consider where in the range of offences covered by the section and as against the maximum penalty for the offence any particular assault fell. A number of these offences were as serious as an assault occasioning actual bodily harm could be. The injuries in at least two cases could have been considered as grievous bodily harm. The applicant could not be sentenced on that basis but it indicates how serious the offences were having regard to the kind of harm such an offence covers. In my opinion sentences of 6 months and 3 months were manifestly inadequate even if they represented the non-parole periods for those offences. The maximum penalty for each offence was 5 years. The injuries were inflicted without any justification by way of provocation or for any other reason that might be mitigatory. The persons injured were completely innocent of any wrongdoing and, in any event, the injuries inflicted far outweighed whatever injuries were inflicted, if any, upon the respondent’s companion. The sentence imposed for each of the s 59 offences was manifestly inadequate to a very significant degree. It is obvious that they were treated as very minor offences of little significance in the sentencing process and yet they were not. The sentences imposed had insufficient regard to the nature of the injuries and the manner in which they were inflicted. They were unreasonable and plainly wrong. The second, third and seventh counts each warranted a sentence of not less than a fixed term of 18 months. The fourth, fifth and sixth counts each warranted a sentence of not less than a fixed term of 12 months. Count 8 warranted a sentence of not less than a fixed term of 6 months.