Hanania v R [2012] NSWCCA 220

Hanania v R [2012] NSWCCA 220

The appeal failed because the sentencing judge considered the psychological evidence, remorse and rehabilitation prospects, made findings favourable to the applicant, and was entitled to conclude that no sentence other than full-time custody would reflect the objective seriousness of a planned aggravated break enter and steal committed in company. The absence of a pre-sentence report was not error where no adjournment was sought and the judge regarded non-custodial alternatives as inappropriate. Taking into account the Form 1 offences did not involve double counting because possession of the angle grinder and the later property damage involved criminality additional to the completed break...

Jurisdiction
Australia
Judgment Date
12 October 2012
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court at Parramatta
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['aggravated Break Enter and Steal' 'form 1 Offences' 'pre Sentence Report' 'full Time Custody' 'manifest Excess' 'remorse and Rehabilitation' 'mental Health Application']
['criminal Law' 'sentencing'] ['aggravated Break Enter and Steal' 'form 1 Offences' 'pre Sentence Report' 'full Time Custody' 'manifest Excess' 'remorse and Rehabilitation' 'mental Health Application']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court at Parramatta

Legal Issues

  1. 1 ["Whether the sentencing judge gave insufficient regard to the psychologist's report and the applicant's rehabilitation prospects" 'Whether the absence of a pre-sentence report amounted to error or deprived the sentencing judge of assistance concerning non-custodial options' 'Whether taking the Form 1 offences into account involved double counting or improperly increased the criminality of the principal offence' 'Whether the sentencing judge gave insufficient regard to remorse and contrition' 'Whether the full-time custodial sentence was manifestly excessive']

Ratio Decidendi

The appeal failed because the sentencing judge considered the psychological evidence, remorse and rehabilitation prospects, made findings favourable to the applicant, and was entitled to conclude that no sentence other than full-time custody would reflect the objective seriousness of a planned aggravated break enter and steal committed in company. The absence of a pre-sentence report was not error where no adjournment was sought and the judge regarded non-custodial alternatives as inappropriate. Taking into account the Form 1 offences did not involve double counting because possession of the angle grinder and the later property damage involved criminality additional to the completed break...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']