Regina v Hunter - [2001] NSWCCA 530

CITATION: Regina v Hunter [2001] NSWCCA 530

FILE NUMBER(S): CCA 60134/01

HEARING DATE(S): 10/12/01

JUDGMENT DATE:
10 December 2001

PARTIES :

Regina v Angus Ian HUNTER

JUDGMENT OF: Greg James J at 27; Whealy J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0011

LOWER COURT JUDICIAL
OFFICER : Solomon DCJ

COUNSEL : L.M.B. Lamprati - Crown
A.P. Cook - Applicant

SOLICITORS: S.E. O'Connor - DDP
D.J. Humphreys - Legal Aid Commission

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencng Procedure) Act 1999

CASES CITED:
Veen (No 2) (2988) 164 CLR 465
Thompson & Houlton (2000) 49 NSWLR 383
R v Carter (2001) NSWCCA 245
R v Lo (2001) NSWCCA 271

DECISION: Leave to appeal granted but the appeal dismissed

60134/01

GREG JAMES J
WHEALY J

MONDAY 10 December 2001

REGINA v Angus Ian HUNTER

Judgment

The applicant in this matter is a forty five year old man who suffers from schizophrenia. He is seeking leave to appeal from a sentence imposed by Solomon DCJ on 2 March 2001 at the Sydney District Court. The applicant pleaded guilty to an offence of robbery whilst armed with an offensive weapon. This offence carried a maximum penalty of twenty years imprisonment (s 97(1) of the Crimes Act). A common assault charge committed at the same time as the robbery was taken into account on a form 1. His Honour sentenced the applicant to a total term of seven years imprisonment with a non parole period of three and a half years. The non parole period is to expire on 6 April 2004.

2 The facts were that at about 12.15pm on Saturday, 7 October 2000, Ms Lorie Bell and her two children, who were aged respectively eleven and nine, were in the vicinity of an ATM in Spring St, Bondi Junction. Ms Bell commenced to withdraw money from the ATM. The applicant approached the family and placed his right arm around the neck of the younger child, Lysia Bell aged nine, and held a knife to her throat. At this stage, according to the statement of Lorie Bell dated 7 October 2000, the applicant said:

"It wouldn't be a pretty sight if I cut your daughter's throat".

3 Ms Bell observed that her daughter was quivering and starting to cry. She described the knife as being held very close to her daughter's skin. She said in her statement that she put her right hand "in between the knife and Lysia's throat so she wouldn't be cut." An amount of $100 was produced by the ATM. The applicant snatched it and ran off.

4 The applicant got on to a bus and he was arrested shortly afterwards on the bus. He was found with the proceeds of the robbery less an amount he had spent on the purchase of a bus ticket, on his person at the time of his arrest.

5 He was interviewed by the police at Waverley Station a short time later. He made full admissions…

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 Regina v Hunter

Details

AGLC: Regina v Hunter [2001] NSWCCA 530
Case: [2001] NSWCCA 530
Decision Date: 10 December 2001

CaseChat Overview and Summary

The Court of Criminal Appeal in Regina v Angus Ian Hunter considered an appeal against sentence by a man who pleaded guilty to armed robbery while suffering from schizophrenia. Angus Ian Hunter, the applicant, was sentenced by Solomon DCJ to a total term of seven years imprisonment with a non-parole period of three and a half years. The applicant sought leave to appeal against the sentence on two grounds: firstly, that his Honour erred in relation to the discount he allowed for the applicant's early guilty plea, and secondly, that his Honour did not adequately consider the applicant's mental condition in determining the sentence. The Court considered the statutory requirement for a court to take into account the fact that an offender has pleaded guilty, and noted that if the sentencing judge had limited the discount for the early plea because of its utilitarian value, had to be offset by a recognition of the strength of the Crown case, then an error would have been shown. However, the Court found that the sentencing judge's remarks on sentence, when read in their entirety and in context, were not susceptible to the narrow construction urged by the applicant, and that no error had been shown in relation to the first ground of appeal. The Court also found that the sentencing judge had expressly applied the correct principles to the circumstances of the applicant's mental illness, and had not allowed the applicant's mental condition to dissuade him from applying the correct principles he identified. The Court concluded that leave to appeal should be granted but the appeal should be dismissed.

The Court of Criminal Appeal found that the sentencing judge had given due consideration to the applicant's mental condition in determining the sentence, and had recognised the need for a longer period of supervision and rehabilitation on parole by his finding of special circumstances. The Court found that every matter that could possibly be found on the applicant's behalf had been taken into account by the sentencing judge, and that in view of the gravity of the offence and the circumstances in which it was committed, the sentence imposed was appropriate. The Court granted leave to appeal but dismissed the appeal, and the orders were as proposed by Justice Whealy.

Orders