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The Queen v Hewitt

The Queen v Hewitt

Case [2020] NSWDC 566 6 August 2020

Criminal Liability

Sentencing

Sexual Offences

Non-Custodial Sentence

Psychiatric Illness

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: The Queen v Hewitt [2020] NSWDC 566
Hearing dates: 23-27 September 2019 (the trial); 30 September 2019 (mention); 1 October 2019 (mention); 16 June 2020 (sentence hearing and conviction); 6 August 2020 (sentence)
Date of orders: 06 August 2020
Decision date: 06 August 2020
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
Community Corrections Order. Decision at [179] – [186]

Catchwords:
CRIMINAL LAW – sentencing – sexual intercourse without consent – whether s5 threshold crossed – where imprisonment penalty of last resort -consideration of non-custodial sentence – psychiatric illness – balancing objective and subjective circumstances in considering purposes for sentence – whether unusual or exceptional circumstances exist to justify non-custodial sentence – s5 threshold not crossed – unique circumstances

Legislation Cited:
Crimes Act (1900) NSW s 61I
Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A, Part 4

Cases Cited:
Director of Public Prosecutions v Burton [2020] NSWCCA 54
DPP v De La Rosa (2010) 79 NSWLR 1
Greenwood v R [2014] NSWCCA 64
Hili v The Queen (2010) 253 CLR 58
JDX v R [2017] NSWCCA 9
Jolly v R [2013] NSWCCA 76
Kelly v The Queen [2007] NSWCA 357
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120
R v Engert (1995) 84 A Crim R 67
R v PGM (2008) 187 Crim R 152
R v Ponfield (1999) 48 NSWLR 327
R v Way (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Sabapathy v R [2008] NSWCCA 82
Silvano v R (2008) 184 A Crim R 593
Tepania v R [2018] NSWCCA 247
Veen v The Queen (No 2) (1988) 164 CLR 465
Yildiz v R [2020] NSWCCA 69

Texts Cited:
None

Category: Sentence
Parties: Regina (ODPP)
Mitchell Lennox Hewitt (Offender)
Representation:
Counsel:
Ms K Tennant (Crown)
Mr G Bradey SC (Offender)
Solicitors:
ODPP (Crown)
Hunter Flood Lawyers (Offender)

File Number(s): 2017/83256
Publication restriction: Non publication order on any matter that identifies the Complainant (s578A Crimes Act 1900 NSW), either directly or indirectly.

remarks on Sentence

introduction

Mr Hewitt (hereafter referred to as ‘the Offender’) appears before the Court today for sentence after being found guilty by a jury in October 2019, the findings in relation to one count of sexual intercourse without consent in contravention of s 61I of the Crimes Act 1900 NSW, which occurred on 22 November 2016 at Pearl Beach in the State of New South Wales. That offence carries the maximum sentence of 14 years’ imprisonment and attracts a standard non-parole period of 7 years. I acknowledge these as guideposts for a sentencing judge. The community, quite understandably, considers this offending to be serious.
The Offender was born on 26 April 1995 and is presently 25 years of age, having been raised in Sydney. He completed Year 12 in 2012. He is currently studying engineering at Sydney University. While a full-time student, the Offender has also maintained regular part-time employment, including roles in labouring, pizza delivery,…

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 The Queen v Hewitt

Details

AGLC: The Queen v Hewitt [2020] NSWDC 566
Case: [2020] NSWDC 566
Decision Date: 06 August 2020

CaseChat Overview and Summary

The matter before the court involved a defendant, Hewitt, who had been charged with sexual intercourse without consent. The case was heard in the Supreme Court, with the central issue being whether the threshold for a custodial sentence had been met. The court needed to determine if the severity of the offence warranted a prison sentence or if a non-custodial option was more appropriate, considering the defendant's psychiatric illness and the purposes of sentencing. The central legal question was whether the nature and circumstances of the offence warranted a custodial sentence or if there were unusual or exceptional circumstances justifying a non-custodial sentence.

The court examined the relevant statutory provisions, particularly the requirement that a custodial sentence should only be imposed as a last resort. It assessed the severity of the offence against the background of the defendant's psychiatric condition and considered whether the purposes of sentencing, including deterrence and rehabilitation, could be effectively achieved through a non-custodial sentence. The court also evaluated whether there were any unusual or exceptional circumstances that might justify departing from the usual approach to sentencing in this case.

In its judgment, the court found that while the offence was serious, the threshold for a custodial sentence had not been crossed. The court highlighted the unique circumstances of the case, including the defendant's psychiatric illness, and concluded that a non-custodial sentence would adequately address the purposes of sentencing. The court imposed a Community Corrections Order, as detailed in the decision at [179] to [186].

Orders

Orders of the court

Community Corrections Order. Decision at [179] – [186]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

The Queen v Hewitt [2020] NSWDC 566

Most Recent Citation

R v SIM [2020] NSWDC 743

Cases citing this decision · 2 of 2 shown

R v Elsworth (No 3)
[2021] NSWDC 555 Para 88

…, the offender had been issued a warning during the evening as to his interaction with the victim. Counsel also distinguished the facts in R v Hewitt [2020] NSWDC 566. In all of the circumstances it was submitted that this was an appropriate case to impose penalties that involve punishment other than by way of impr…
R v Sim
[2020] NSWDC 743 Para 28

…The offender relied upon the case of The Queen v Hewitt [2020] NSWDC 566, a recent decision of Wilson DCJ of this Court.…

View all 2 citing cases →

Cases cited in this decision · 20 of 20 shown

Yildiz v R
[2020] NSWCCA 69 Para 115

…Quite apart from the submissions advanced for the Offender, I accept that he was a person of relative youth. I am mindful of a decision of Yildiz v R [2020] NSWCCA 69 where the Court was dealing with an Offender aged 18 years, 5 months. The CCA were satisfied that the applicant’s youth was a mitigating factor, part…
Director of Public Prosecutions (NSW) v Burton
[2020] NSWCCA 54 Para 94

…Finally, the submissions for the Offender directed the Court to Director of Public Prosecutions v Burton [2020] NSWCCA 54, where Basten J considered Muldrock in determining that the sentencing judge’s decision to impose a community corrections order on an Offender who pleaded guilty to sexual intercourse without co…
Tepania v The Queen
[2018] NSWCCA 247 Para 5

…tandard non-parole period of 7 years. The relevance of the latter was recently discussed in the Court of Criminal Appeal in the matter of Tepania v R [2018] NSWCCA 247 by Johnson J, who at 110 summarised the propositions that arise from the legislation in which the provisions relevant to standard non-parole periods…
R v Shortland
[2018] NSWCCA 34 Para 92

…The written submissions referred of R v Shortland [2018] NSWCCA 34 where it was stated at [7] that:…
R v JDX; JDX v R
[2017] NSWCCA 9 Para 62

…ed weight ” to statements made by an Offender to a psychiatrist or psychologist reproduced in reports, referring to the decision of JDX v R [2017] NSWCCA 9. I have approached such evidence in that way.…
Greenwood v R
[2014] NSWCCA 64 Para 70

…, it does not necessarily mean that it was a less serious form of the offence. I note here the remarks made by the CCA in the matter of Greenwood v R [2014] NSWCCA 64, where this question was considered by the Court, in which the Court referred to an earlier decision in the matter of Jolly v R [2013] NSWCCA 76 at 7…
Barbaro v The Queen
[2014] HCA 2

…Public Prosecutions v Burton [2020] NSWCCA 54 DPP v De La Rosa (2010) 79 NSWLR 1 Greenwood v R [2014] NSWCCA 64 Hili v The Queen (2010) 253 CLR 58 JDX v R [2017] NSWCCA 9 Jolly v R [2013] NSWCCA 76 Kelly v The Queen [2007] NSWCA 357 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 R v Eng…
Jolly v R
[2013] NSWCCA 76 Para 70

…v R [2014] NSWCCA 64, where this question was considered by the Court, in which the Court referred to an earlier decision in the matter of Jolly v R [2013] NSWCCA 76 at 72 where the Court said amongst other things:…
Muldrock v The Queen
[2011] HCA 39 Para 117

…a low degree of harm applied in these circumstances. It was submitted that the “ needs of the community ” referred, to in Muldrock v The Queen [2011] HCA 39, aligned with the Offender in respect of his sentence for the subject offending. In particular, senior counsel submitted that the community “ could have no…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 155

…tal illness may, in some cases, give rise to safety concerns in circumstances where the Offender is released into the community (see DPP v De La Rosa (2010) 79 NSWLR 1 at [177]), I am satisfied that this Offender presents no such risk. This is reflected in my assessment of his risk of reoffending as being close to z…
R v Hibberd
[2009] NSWCCA 20 Para 71

…intercourse, the circumstances of humiliation and the duration of the offence. Reference is made to the decision of the CCA in the matter of Hibberd [2009] NSWCCA 20 at 56.…
Sabapathy v R
[2008] NSWCCA 82 Para 91

…will be cases where a custodial sentence is not required. The written submissions on behalf of the Offender referred to the decision of Sabapathy v R [2008] NSWCCA 82, where the court stated at [71]:…
Magnou v Australian Wool Testing Authority Ltd
[2007] NSWCA 357 Para 164

…I am also mindful that mercy has a place in sentencing. The NSWCCA in several decisions, including Kelly v The Queen [2007] NSWCA 357 at [30] has endorsed the following observation of Napier CJ of the South Australian Supreme Court:…
SZ v R
[2007] NSWCCA 19 Para 173

…In SZ v R [2007] NSWCCA 19 Howie J noted, at [5], that the role of sentencing judge requires that:…
Markarian v The Queen
[2005] HCA 25

…een (2010) 253 CLR 58 JDX v R [2017] NSWCCA 9 Jolly v R [2013] NSWCCA 76 Kelly v The Queen [2007] NSWCA 357 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 R v Engert (1995) 84 A Crim R 67 R v PGM (2008) 187 Crim R 152 R v Ponfield (1999) 48 NSWLR 327 R v Way (2004) 60 NSWLR 168 R v Z…
R v Way
[2004] NSWCCA 131 Para 163

…I commence this exercise by recognising that imprisonment should be used as a sanction of last resort ( R v Way (2004) 60 NSWLR 168 at [115]). As the Court observed in Way , this consideration is recognised by the CSP Act in so far as it provides for non-custodial sentences. The “ ultimate objective ” is one of imposi…
R v Zamagias
[2002] NSWCCA 17 Para 166

…ence draws upon considerations of both the objective seriousness of the offending and the Offender’s subjective case. In the matter of R v Zamagias [2002] NSWCCA 17 Howie J with whom Hodgson JA and Levine J agreed, stated:…
R v Ponfield
[1999] NSWCCA 422 Para 158

…In R v Ponfield (1999) 48 NSWLR 327 Grove J acknowledged the significance of rehabilitation, particularly in respect of younger Offenders, noting at [327] that “ the prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being almost axiomatic ”. While, on the one h…
R v Ponfield
[1999] NSWCCA 435 Para 158

…In R v Ponfield (1999) 48 NSWLR 327 Grove J acknowledged the significance of rehabilitation, particularly in respect of younger Offenders, noting at [327] that “ the prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being almost axiomatic ”. While, on the one h…
Veen v The Queen (No 2)
[1988] HCA 14 Para 153

…s the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at [488]. The purposes overlap and often point in different directions. It is therefore erroneous in principal to approach sentencing, as Gleeson CJ put…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 3A, 5 3 mentions
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Immigration and Nationality Act 1952 (US)
1 mention (from Para 133)

Medium Neutral Citation:	The Queen v Hewitt [2020] NSWDC 566
Hearing dates:	23-27 September 2019 (the trial); 30 September 2019 (mention); 1 October 2019 (mention); 16 June 2020 (sentence hearing and conviction); 6 August 2020 (sentence)
Date of orders:	06 August 2020
Decision date:	06 August 2020
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Community Corrections Order. Decision at [179] – [186]
Catchwords:	CRIMINAL LAW – sentencing – sexual intercourse without consent – whether s5 threshold crossed – where imprisonment penalty of last resort -consideration of non-custodial sentence – psychiatric illness – balancing objective and subjective circumstances in considering purposes for sentence – whether unusual or exceptional circumstances exist to justify non-custodial sentence – s5 threshold not crossed – unique circumstances
Legislation Cited:	Crimes Act (1900) NSW s 61I Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A, Part 4
Cases Cited:	Director of Public Prosecutions v Burton [2020] NSWCCA 54 DPP v De La Rosa (2010) 79 NSWLR 1 Greenwood v R [2014] NSWCCA 64 Hili v The Queen (2010) 253 CLR 58 JDX v R [2017] NSWCCA 9 Jolly v R [2013] NSWCCA 76 Kelly v The Queen [2007] NSWCA 357 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 R v Engert (1995) 84 A Crim R 67 R v PGM (2008) 187 Crim R 152 R v Ponfield (1999) 48 NSWLR 327 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Sabapathy v R [2008] NSWCCA 82 Silvano v R (2008) 184 A Crim R 593 Tepania v R [2018] NSWCCA 247 Veen v The Queen (No 2) (1988) 164 CLR 465 Yildiz v R [2020] NSWCCA 69
Texts Cited:	None
Category:	Sentence
Parties:	Regina (ODPP) Mitchell Lennox Hewitt (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr G Bradey SC (Offender) Solicitors: ODPP (Crown) Hunter Flood Lawyers (Offender)
File Number(s):	2017/83256
Publication restriction:	Non publication order on any matter that identifies the Complainant (s578A Crimes Act 1900 NSW), either directly or indirectly.