Hawke v R [2010] NSWCCA 172

Hawke v R [2010] NSWCCA 172

The sentencing judge did not breach the De Simoni principle or double count by referring to actual violence, because that reference was fairly read as directed to the Form 1 assault occasioning actual bodily harm offence. The prior record was properly taken into account under s 21A(2)(d) and used benignly consistently with Veen (No. 2). The reference to substantial emotional injury was a generalisation rather than a finding under s 21A(2)(g). However, the applicant's custody between 25 May 2009 and 5 June 2009 was solely due to the subject offence, with no exceptional circumstances, so the sentence should have been backdated to commence on 25 May 2009; no further backdating was required...

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted, appeal allowed, sentence quashed and substitute sentence imposed with adjusted commencement date.
Legal Topics
['robbery in Company' 'form 1 Offence' 'aggravating Factors' 'prior Convictions' 'substantial Emotional Harm' 'backdating Sentence' 'totality' 'parole']
['criminal Law' 'sentencing'] ['robbery in Company' 'form 1 Offence' 'aggravating Factors' 'prior Convictions' 'substantial Emotional Harm' 'backdating Sentence' 'totality' 'parole']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by treating actual violence as an aggravating circumstance contrary to the De Simoni principle or by double counting violence connected with the Form 1 offence.' "Whether the sentencing judge erred by taking the applicant's prior record into account as an aggravating circumstance without explaining how it was used." 'Whether the sentencing judge erred by referring to substantial emotional injury to victims as an aggravating circumstance without evidence.' 'Whether the sentence should have been backdated to account for custody solely referable to the subject offence between 25 May 2009 and 5 June 2009.' 'Whether the principles of totality required further backdating or partial accumulation with earlier sentences.']

Ratio Decidendi

The sentencing judge did not breach the De Simoni principle or double count by referring to actual violence, because that reference was fairly read as directed to the Form 1 assault occasioning actual bodily harm offence. The prior record was properly taken into account under s 21A(2)(d) and used benignly consistently with Veen (No. 2). The reference to substantial emotional injury was a generalisation rather than a finding under s 21A(2)(g). However, the applicant's custody between 25 May 2009 and 5 June 2009 was solely due to the subject offence, with no exceptional circumstances, so the sentence should have been backdated to commence on 25 May 2009; no further backdating was required...

Court Disposition

Leave to appeal granted, appeal allowed, sentence quashed and substitute sentence imposed with adjusted commencement date.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentence and in lieu thereof impose the following sentence: imprisonment for a non parole period of 18 months commencing on 25 May 2009 and expiring on 24 November 2010, with a balance of term of 18 months expiring on 24 May 2012.' 'Direct the release of the...