Hildebrand v R [2021] NSWCCA 9

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hildebrand v R [2021] NSWCCA 9 Hearing dates: 7 October 2020 Date of orders: 15 February 2021 Decision date: 15 February 2021 Before: Payne JA at [1] Davies J at [36] Garling J at [273] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentences imposed by Judge Tupman in the District Court on 27 September 2019. 4. Remit the proceedings to the District Court for sentence. Catchwords: SENTENCING - sentencing procedure - where sentencing judge took into account federal offences on Form 1s that were attached to State principal offences - whether State Form 1 provisions inconsistent with federal sentencing law - where a federal offence is required to attract a sentence that is stated and imposed pursuant to s 16A of Crimes Act (Cth) - where court not authorised to fix a single non parole period in respect to both federal and state sentences pursuant to s 19AJ of the Crimes Act (Cth) - where inconsistency - sentence quashed and remitted for resentencing SENTENCING - appeal against sentence – where applicant pleaded guilty to charges under both Commonwealth and State laws – where offending related to sexual acts occasioned by manipulation of multiple victims by threats, harassment and communications using various carriage services – where sentencing judge imposed a number of stand-alone and aggregate sentences – whether the sentencing judge erred in failing to take into account accumulation of sentences as "special circumstances" – where sentencing judge expressly referred to effective sentence being close to statutory norm and determined that nothing less would be sufficient – whether sentencing judge erred with respect to her assessment of the objective criminality and the indicative sentences – where both indicative and aggregate sentences were within the sentencing judge's discretion – where sentences imposed neither unjust nor unreasonable ­­- where sentence remitted because of an error of law Legislation Cited: Commonwealth Constitution, s 80 Commonwealth Prisoners Act 1967 (Cth) Crimes Act 1900 (NSW), ss 61I, 192J, 447B Crimes Act 1914 (Cth), ss 16A, 16BA, 19AJ, 474.17, 474.19, Pt IB, Crimes (Amendment) Act 1955 (NSW), s 4(e) Crimes Amendment Act 1982 (Cth) Criminal Code (Cth), ss 474.17(1), 474.19(1) Crimes Legislation Amendment Act (No. 2) 1989 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 33 Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW) Crimes (Sentencing Procedure) Regulation 2000 (NSW) Crimes (Sentencing Procedure) Regulation 2017 (NSW) cl 4 Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW) s 65 Judiciary Act 1903 (Cth), ss 68, 79 Sentencing Act 1995 (WA) ss 32, 33 Weapons Prohibition Act 1998 (NSW) s 7 Cases Cited: Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 Hughes v R [2018] NSWCCA 2 Hutchen v R [2015] NSWCCA 101 Ilic v R [2020] NSWCCA 300 Kabir v R [2020] NSWCCA 139 Kerr v R [2016] NSWCCA 218 Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 R v Cramp [2004] NSWCCA 264 R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36 R v Murphy (1985) 158 CLR 596; [1985] HCA 50 R v Oti (1990) 19 NSWLR 561 R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29 Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3234 Category: Principal judgment Parties: Vaughan Mark Hildebrand (Applicant) Crown (Respondent) Representation: Counsel: S Kluss (Applicant) B Baker & M Kumar (Respondent)