Hildebrand v R [2021] NSWCCA 9

Hildebrand v R [2021] NSWCCA 9

It was not permissible for the sentencing judge to take into account Commonwealth offences on NSW Form 1s attached to State principal offences. Since the federal regime provides exhaustively for the procedure to take federal offences into account in sentencing (s 16BA, Crimes Act 1914 (Cth)), and does not allow them to be taken into account under state Form 1 procedure, an error of law was made. As a result, the applicant had not been sentenced according to law in relation to those offences, requiring the sentences to be quashed and the matter remitted for resentencing.

Jurisdiction
Australia
Judgment Date
15 February 2021
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence
Outcome
Appeal allowed
Legal Topics
['sentencing' 'commonwealth Offences' 'state Offences' 'appeal Against Sentence' 'inconsistency of Federal and State Law' 'form 1 Procedure']
['criminal Law'] ['sentencing' 'commonwealth Offences' 'state Offences' 'appeal Against Sentence' 'inconsistency of Federal and State Law' 'form 1 Procedure']

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence

Legal Issues

  1. 1 ["Whether a New South Wales ('Form 1') procedure can lawfully take into account Commonwealth offences when sentencing for State principal offences" 'Whether the sentencing judge erred in failing to take into account the proper procedure under federal sentencing law, specifically s 16BA of the Crimes Act 1914 (Cth)' 'Whether the sentencing judge erred in assessment of special circumstances and objective seriousness']

Ratio Decidendi

It was not permissible for the sentencing judge to take into account Commonwealth offences on NSW Form 1s attached to State principal offences. Since the federal regime provides exhaustively for the procedure to take federal offences into account in sentencing (s 16BA, Crimes Act 1914 (Cth)), and does not allow them to be taken into account under state Form 1 procedure, an error of law was made. As a result, the applicant had not been sentenced according to law in relation to those offences, requiring the sentences to be quashed and the matter remitted for resentencing.

Court Disposition

Appeal allowed

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Quash the sentences imposed by Judge Tupman in the District Court on 27 September 2019.' 'Remit the proceedings to the District Court for sentence.']