Hemsworth v R [2025] NSWCCA 2

Hemsworth v R [2025] NSWCCA 2

The sentencing judge failed to consider a material argument for a sentencing discount for assistance to authorities under s 23 CSPA, constituting House v The King error. However, after re-exercising the sentencing discretion on the material before the sentencing judge, the Court determined that, due to the negligible relevance of the applicant's assistance to the offences and the absence of a deeper connection, no discount is warranted. No lesser sentence than that imposed is warranted in law.

Parties
Applicant: Brendan Ray Hemsworth; Respondent: Rex (Crown)
Jurisdiction
Australia
Judgment Date
12 February 2025
Procedural Posture
Criminal Appeal / Court of Criminal Appeal (sentencing Appeal From District Court of Nsw)
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
Appeal Against Sentence, Assistance to Authorities, Discount for Assistance, Consideration of New or Fresh Evidence, Sentencing Discretion
Criminal Law Appeal Against Sentence Assistance to Authorities Discount for Assistance Consideration of New or Fresh Evidence Sentencing Discretion

Case Brief

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Parties

Brendan Ray Hemsworth

Applicant

Rex (Crown)

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal (sentencing Appeal From District Court of Nsw)

Legal Issues

  1. 1 Did the sentencing judge fail to take into account the applicant's assistance to law enforcement authorities under s 23 Crimes (Sentencing Procedure) Act 1999 (NSW)?
  2. 2 Did the applicant's legal representatives fail to present available evidence about the applicant's assistance to law enforcement authorities?
  3. 3 If error is established, should a lesser sentence be imposed on re-sentence?

Ratio Decidendi

The sentencing judge failed to consider a material argument for a sentencing discount for assistance to authorities under s 23 CSPA, constituting House v The King error. However, after re-exercising the sentencing discretion on the material before the sentencing judge, the Court determined that, due to the negligible relevance of the applicant's assistance to the offences and the absence of a deeper connection, no discount is warranted. No lesser sentence than that imposed is warranted in law.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • Under r. 3.5 Supreme Court (Criminal Appeal) Rules 2021, grant leave to the applicant to make his application for leave to appeal from the sentence passed upon him in the District Court on 10 September 2021.
  • Under s 5(1)(c) Criminal Appeal Act 1912 (NSW) grant leave to appeal against the sentence.