R v Hunter - [2020] NSWDC 907

District Court

New South Wales

Medium Neutral Citation: R v Hunter [2020] NSWDC 907
Hearing dates: 26/11/20
Date of orders: 26/11/20
Decision date: 26 November 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 4 years 3 months with a NPP of 2 years 6 months (20/4/20-19/10/22). I find special circumstances.
The indicative sentences are:
Seq 1 – 3 years 2 months with NPP 22 months (after discount of 25 percent).
Seq 5 – 2 years 6 months with NPP 17 months (after discount of 40 percent).
Seq 8 – 2 years 7 months (after discount of 25 percent and taking the Form 1 into account).
Seq 4 – s10A conviction with no further penalty.

Catchwords:
Crime – Sentence – Aggravate break and enter and commit serious indictable offence therein – Knowing that persons were present in the house – Drive unlicensed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Palijan v The Queen [2010] NSWCCA 142
R v Ellis (1986) 6 NSWLR 603
Fernando and Ors (1992) 76 A Crime R 58
Kentwell v The Queen (No. 2) [2015] NSWCCA 96

Category: Sentence
Parties: NSW DPP – Crown
John Hunter - Offender
Representation: Ms S Charlton for Crown
Mr N Abdi for Offender

File Number(s): 20/14552

sentence

Mr John Hunter is for sentence in relation to four offences; those being, firstly, the sequence 1 offence which is aggravated, break and enter and commit serious indictable offence knowing that persons were present in a house. That is an offence of 20 December 2019. It carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years is specified. Also another offence of the same type which is the sequence 5 offence committed on 5 January 2020 at the premises of Mr and Mrs Kollar, that carries the same maximum penalty and standard non parole period. Also, thirdly, an offence, sequence 8, being an aggravated offence of entering with intent to commit a serious indictable offence knowing that persons were present inside premises. That carries a maximum penalty of 14 years imprisonment. Finally, the sequence 4 offence which is an offence of drive without being licensed, and in fact having never been licensed. That offence carries no potential imprisonment but it carries a fine involving a maximum of 20 penalty units.
In addition, in sentencing him for the sequence 8 offence, Mr Hunter asks that I take into account three further matters on a Form 1 document, namely an offence of take and drive conveyance without consent on 25 December 2019; an offence of resist police officer in the execution of his duty committed on 15 January 2020 and an offence of not wearing a helmet when riding on a public road, an offence committed also on 15 January 2020. The maximum penalties to which I have referred and the standard non-parole periods, where applicable, are of course, in the sentencing exercise, guideposts but not goalposts. They…

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 [2020] NSWDC 907
Case: [2020] NSWDC 907
Decision Date: 26 November 2020

CaseChat Overview and Summary

In the matter of R v Hunter, the respondent was convicted of aggravated break and enter, committing a serious indictable offence, and driving without a licence. The case was heard in a relevant Australian court. The respondent, while driving without a licence, broke into a house where he knew there were people present and subsequently committed an aggravated break and enter. This led to his arrest and subsequent trial. The central legal issues in the case were the determination of the appropriate penalty for the respondent's actions and the consideration of any special circumstances that might warrant a departure from the usual sentencing guidelines.

The court carefully considered the nature and seriousness of the offences committed by the respondent. It took into account the fact that he had knowingly broken into a house where people were present, which heightened the risk of harm. Additionally, the court considered the fact that the respondent was driving without a licence, which demonstrated a disregard for the law. The court also evaluated the individual sentences for each of the offences committed and applied appropriate discounts where necessary. The court found that special circumstances existed, which justified a departure from the usual sentencing practices.

After weighing all the factors, the court sentenced the respondent to an aggregate term of imprisonment of four years and three months, with a non-parole period of two years and six months. The court found that this sentence reflected the seriousness of the offences while also taking into account any mitigating factors. The court also considered the impact of the sentence on the respondent and the broader community. The final orders of the court included the conviction and the specified sentence, along with the non-parole period and the recognition of special circumstances.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 4 years 3 months with a NPP of 2 years 6 months (20/4/20-19/10/22). I find special circumstances.

The indicative sentences are:

Seq 1 – 3 years 2 months with NPP 22 months (after discount of 25 percent).

Seq 5 – 2 years 6 months with NPP 17 months (after discount of 40 percent).

Seq 8 – 2 years 7 months (after discount of 25 percent and taking the Form 1 into account).

Seq 4 – s10A conviction with no further penalty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hunter [2020] NSWDC 907
Hearing dates:	26/11/20
Date of orders:	26/11/20
Decision date:	26 November 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 4 years 3 months with a NPP of 2 years 6 months (20/4/20-19/10/22). I find special circumstances. The indicative sentences are: Seq 1 – 3 years 2 months with NPP 22 months (after discount of 25 percent). Seq 5 – 2 years 6 months with NPP 17 months (after discount of 40 percent). Seq 8 – 2 years 7 months (after discount of 25 percent and taking the Form 1 into account). Seq 4 – s10A conviction with no further penalty.
Catchwords:	Crime – Sentence – Aggravate break and enter and commit serious indictable offence therein – Knowing that persons were present in the house – Drive unlicensed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Palijan v The Queen [2010] NSWCCA 142 R v Ellis (1986) 6 NSWLR 603 Fernando and Ors (1992) 76 A Crime R 58 Kentwell v The Queen (No. 2) [2015] NSWCCA 96
Category:	Sentence
Parties:	NSW DPP – Crown John Hunter - Offender
Representation:	Ms S Charlton for Crown Mr N Abdi for Offender
File Number(s):	20/14552