Hardey v R [2019] NSWCCA 310

Hardey v R [2019] NSWCCA 310

Error was established because, although the sentencing judge was aware of the Parramatta sentence and issues of accumulation and totality, the record did not show that her Honour turned her mind to the precise impact of partial accumulation, namely that the applicant would serve approximately 80% of his total term...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW on 5 December 2018; Appeal Allowed and Applicant Re Sentenced
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced.
Legal Topics
['sentence Appeal' 'special Circumstances' 'totality' 'accumulation of Sentences' 'non Parole Period' 'parity Principle' 're Sentencing' 'break and Enter in Company']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sentence Appeal' 'special Circumstances' 'totality' 'accumulation of Sentences' 'non Parole Period' 'parity Principle' 're Sentencing' 'break and Enter in Company']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of NSW on 5 December 2018; Appeal Allowed and Applicant Re Sentenced

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to give effect to the finding of special circumstances when structuring the applicant's sentence cumulatively on an existing sentence." 'Whether the sentencing judge failed to give effect adequately to the principle of totality with respect to the Parramatta sentence.' 'Whether the applicant had a justifiable sense of grievance arising from the sentence imposed on the co-offender.']

Ratio Decidendi

Error was established because, although the sentencing judge was aware of the Parramatta sentence and issues of accumulation and totality, the record did not show that her Honour turned her mind to the precise impact of partial accumulation, namely that the applicant would serve approximately 80% of his total term before parole eligibility despite a finding of special circumstances. The parity ground failed because the co-offender had materially different subjective circumstances, including Bugmy-type considerations, and was in a different custody position when sentenced. The Court therefore exercised the sentencing discretion afresh and imposed a sentence structured to reflect special...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced.

Orders

  • ['Leave to appeal against the sentence imposed in the District Court on 5 December 2018 is granted.' 'The appeal is allowed.' 'The sentence imposed in the District Court on 5 December 2018 is quashed.' 'In lieu thereof, the applicant is sentenced to a non-parole period of 2 years imprisonment commencing on 5 July...