Hoskins v R [2021] NSWCCA 169

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hoskins v R [2021] NSWCCA 169 Hearing dates: 5 May 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Before: Basten JA at [1]; Brereton JA at [3]; Beech-Jones J at [78] Decision: (1) Extend time for the applicant to file a Notice of Appeal to the date on which it was filed; (2) Grant leave to the applicant to appeal against the aggregate sentence imposed on 20 February 2020 by the District Court; (3) Allow the appeal; and (4) Quash the aggregate sentence imposed in the District Court on 20 February 2020 in respect of sequences 7, 10, 11, and 12, and in lieu thereof: (a) impose an aggregate sentence of five years' imprisonment to commence from 31 January 2019 and expire on 30 January 2024; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of three years, and specify that the earliest date the applicant will be eligible to be released on parole is 31 January 2022; and (c) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: (i) sequence 11 (reckless wounding of Ms Whitmore): three years, with a non-parole period of two years; (ii) sequence 12 (reckless wounding of Ms Charles): three years, with a non-parole period of two years; (iii) sequence 10 (affray): one year and six months; and (iv) sequence 7 (aggravated break, enter (knowing that a person was in the place) and commit serious indictable offence (assault occasioning actual bodily harm): two years and three months, with a non-parole period of one year and six months. Catchwords: CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender's background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted Legislation Cited: Crimes Act 1900 (NSW), ss 35(4), 59(1), 93C(1), 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(c), 5, 10A, 21A, 44(2A), 53A(2)(b), 54B Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Appeal Rules 1952 (NSW), r 3A Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Dungay v R [2020] NSWCCA 209 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ingrey v R [2016] NSWCCA 31 Judge v R [2018] NSWCCA 203 Kennedy v R [2010] NSWCCA 260 Kentwell v R (No 2) [2015] NSWCCA 96 Kliendienst v R [2020] NSWCCA 98 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Perkins v R [2018] NSWCCA 62 R v Fernando (1992) 76 A Crim R 58 R v Hoskins [2020] NSWDC 315 R v Irwin [2019] NSWCCA 133 Taysavang v R; Lee v R [2017] NSWCCA 146 Texts Cited: Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) Category: Principal judgment Parties: Douglas Hoskins (Applicant) Regina (Respondent) Representation: Counsel: P Segal (Applicant) G Newton (Respondent)