Hesketh v R [2021] NSWCCA 262

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hesketh v R [2021] NSWCCA 262 Hearing dates: 21 July 2021 Date of orders: 08 November 2021 Decision date: 08 November 2021 Before: Bell P at [1]; Price J at [64]; Hamill J at [65] Decision: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Dismiss the application for leave to appeal against sentence. Catchwords: CRIME – appeals – appeal against conviction – discharge of firearm with intent to cause grievous bodily harm – reckless wounding – wrong decision on a question of law – the rule against double punishment – conviction on two counts – pursuant to plea of guilty – assertion that the criminality in respect of one count was totally subsumed by the other – whether the applicant was punished twice for the commission of elements common to both offences for which he was convicted – whether the fact of conviction constitutes an act of punishment CRIME – appeals – appeal against sentence – manifest excess – where indicative sentences are not themselves amenable to appeal CRIME – appeals – appeal against sentence – misapplication of principle – principle of totality – applicant sentenced on two counts – assertion that the criminality in respect of one count was totally subsumed by the other – whether the principle of totality required the sentences for both offences to be wholly concurrent – nature of the relationship between indicative sentences and aggregate sentence SENTENCING – appeal against sentence – aggregate sentence – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – Pearce – whether the principle of totality required the sentences for both offences to be wholly concurrent SENTENCING – appeal against sentence – severity – sentence manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 21A, 25D, 52A(4), 53A Crimes Act 1900 (NSW) ss 4A, 33, 35, 51B, 110 Cases Cited: Baradi v The Queen (2018) 273 A Crim R 468; [2018] NSWCCA 143 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1 Cashel v R [2018] NSWCCA 292 Dean v R [2015] NSWCCA 307 Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270 JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 Johnson v The Queen (2002) 26 WAR 336; [2002] WASCA 102 Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15 Kirby v R [2021] NSWCCA 162 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94 McFarland v R [2021] NSWCCA 79 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Portolesi v The Queen (2012) 227 A Crim R 170; [2012] NSWCCA 157 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Priovolidis v R [2016] NSWCCA 201; (2016) 78 MVR 59 R v Campbell; R v Smith [2019] NSWCCA 1 R v Dodd (1991) 56 A Crim R 451 R v Hilton (2005) 157 A Crim R 504; [2005] NSWCCA 317 R v Hoar (1981) 148 CLR 32; [1981] HCA 67 R v Sessions [1998] 2 VR 304 R v Thomas [1950] 1 KB 26 Regina v Janceski [2005] NSWCCA 288 Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Texts Cited: D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) Category: Principal judgment Parties: Dylan Hesketh (Applicant) The Crown (Respondent) Representation: Counsel: