The Queen v Hewitt

Case [2020] NSWDC 566


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

  1. 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.

  2. 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,…

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

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

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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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