Hurkmans v R [2024] NSWCCA 126

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hurkmans v R [2024] NSWCCA 126 Hearing dates: 24 April 2024 Date of orders: 12 July 2024 Decision date: 12 July 2024 Before: Davies J at [1] N Adams J at [52] R A Hulme AJ at [65] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed in the District Court on 25 November 2022. (4) In lieu sentence the applicant to imprisonment for 10 years commencing 11 March 2021 and expiring 10 March 2031 with a non-parole period of 6 years expiring 10 March 2027. Catchwords: CRIME – appeals – appeal against sentence – two drug and proceeds of crime offences – possess commercial quantity of cocaine – where primary issue before the sentencing judge was non-exculpatory duress – duress found in favour of the applicant – moral culpability reduced by reason of duress – whether sentencing judge required to separately consider mental health – applicant diagnosed with persistent depressive disorder and trauma/stress related disorder – connection between mental health and offending raised in applicant's written and oral submissions – held sentencing judge overlooked evidence concerning mental health – failed to consider the issue of moral culpability by reason of mental health – direct nexus between applicant's mental health and the offending – appeal allowed – applicant resentenced to a lesser sentence Legislation Cited: Crimes Act 1914 (Cth) s 16A Criminal Code Act 1995 (Cth) ss 307.5, 400.4 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cherdchoochatri v R [2013] NSWCCA 118 DB v R [2023] NSWCCA 323 Craft v R [2021] NSWCCA 131 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Lee v R [2016] NSWCCA 146 Masters v R [2019] NSWCCA 233 Ney v R [2023] NSWCCA 252 Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 Whipp v R [2024] NSWCCA 79 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 YM v R [2023] NSWCCA 75 Texts Cited: Nil Category: Principal judgment Parties: Jake Laurens Hurkmans (Applicant) The King (Respondent) Representation: Counsel: T Game SC and R McMahon (Applicant) A Williams (Respondent)