Hitchen v R [2010] NSWCCA 77

Hitchen v R [2010] NSWCCA 77

Although the offences were of the utmost gravity and some fell within the worst category, the overall starting sentence of 32 years before discount was manifestly excessive. The sentencing judge erred in the application of the totality principle by making the sentences for counts 4, 5 and 6 cumulative on one another, producing an unduly excessive aggregate sentence. The appropriate starting point before discount was 24 years, resulting in an overall sentence of 18 years with a non-parole period of 14 years.

Jurisdiction
Australia
Judgment Date
03 May 2010
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed in part; sentences for counts 5 and 6 quashed and replaced; sentences for counts 1, 2, 3 and 4 confirmed.
Legal Topics
['child Sexual Assault' 'child Pornography' 'manifest Excess' 'totality Principle' 'non Parole Period' 'guilty Plea Discount']
['criminal Law' 'sentencing'] ['child Sexual Assault' 'child Pornography' 'manifest Excess' 'totality Principle' 'non Parole Period' 'guilty Plea Discount']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the aggregate head sentence and aggregate non-parole period were manifestly excessive.' 'Whether the sentencing judge erred in the application of the totality principle by making the sentences for counts 4, 5 and 6 cumulative on one another.']

Ratio Decidendi

Although the offences were of the utmost gravity and some fell within the worst category, the overall starting sentence of 32 years before discount was manifestly excessive. The sentencing judge erred in the application of the totality principle by making the sentences for counts 4, 5 and 6 cumulative on one another, producing an unduly excessive aggregate sentence. The appropriate starting point before discount was 24 years, resulting in an overall sentence of 18 years with a non-parole period of 14 years.

Court Disposition

Leave to appeal granted; appeal allowed in part; sentences for counts 5 and 6 quashed and replaced; sentences for counts 1, 2, 3 and 4 confirmed.

Orders

  • ['Grant the applicant leave to appeal and allow the appeal in part.' 'Confirm the sentences imposed for counts 1, 2, 3 and 4.' 'Quash the sentences for counts 5 and 6.' 'Count 6: A sentence of imprisonment with a non-parole period of 4 years with a balance of term of 2 years to commence on 5 December 2015 and to...