Hurst v R [2017] NSWCCA 114

Hurst v R [2017] NSWCCA 114

Although the sentencing judge misstated the maximum penalty for the aggravated sexual intercourse without consent offence, requiring resentencing, the offending was extremely serious domestic violence marked by brutality, sadism, humiliation and control, the delay did not warrant further leniency, the aggravated detain sentence was not manifestly excessive, and any sentence imposed afresh would be significantly greater than the sentence imposed below; therefore no lesser sentence was warranted in law and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
31 May 2017
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['sentence Appeal' 'aggravated Detain for Advantage' 'aggravated Sexual Intercourse Without Consent' 'objective Seriousness' 'manifest Excess' 'delay in Prosecution' 'incorrect Maximum Penalty' 'form 1 Offences' 'domestic Violence Offending']
['criminal Law' 'sentencing' 'domestic Violence'] ['sentence Appeal' 'aggravated Detain for Advantage' 'aggravated Sexual Intercourse Without Consent' 'objective Seriousness' 'manifest Excess' 'delay in Prosecution' 'incorrect Maximum Penalty' 'form 1 Offences' 'domestic Violence Offending']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge failed to assess the objective seriousness of the offence of aggravated detention for advantage.' 'Whether the sentence and non-parole period for aggravated detain for advantage were manifestly excessive.' 'Whether delay in prosecution and prejudice to the applicant were adequately taken into account on sentence.' 'Whether the sentences imposed and the aggregate sentence were manifestly excessive.' 'Whether the sentencing judge erred by sentencing on the basis that the maximum penalty for the offence contrary to s 61J Crimes Act was 25 years imprisonment.']

Ratio Decidendi

Although the sentencing judge misstated the maximum penalty for the aggravated sexual intercourse without consent offence, requiring resentencing, the offending was extremely serious domestic violence marked by brutality, sadism, humiliation and control, the delay did not warrant further leniency, the aggravated detain sentence was not manifestly excessive, and any sentence imposed afresh would be significantly greater than the sentence imposed below; therefore no lesser sentence was warranted in law and the appeal was dismissed.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence is granted.' 'The appeal is dismissed.']