Hammond v R [2008] NSWCCA 138

New South Wales Court of Criminal Appeal

CITATION: Hammond v R [2008] NSWCCA 138

HEARING DATE(S): 10 June 2008 JUDGMENT OF: Spigelman CJ at 1; Price J at 7; McCallum J at 8

EX TEMPORE JUDGMENT DATE: 10 June 2008

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - aggravated kidnapping - SENTENCING - early plea - no direct evidence of causal connection between appellant's mental health and commission of offence - sentence not manifestly excessive

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

Markarian v R (2005) 228 CLR 357 R v Engert (1995) 84 A Crim R 67 CASES CITED : R v Hemsley (2004) NSWCCA 228 R v Newell (2004) NSWCCA 183 R v Way (2004) 60 NSWLR 16

PARTIES: Stephen Clyde Hammond (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2982/2007

COUNSEL: Mr S Corish (Applicant) Ms D M L Woodburne (Respondent)

S O'Connor (Applicant) SOLICITORS: SC Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0007

LOWER COURT JUDICIAL OFFICER: Woods ADCJ

LOWER COURT DATE OF DECISION: 14 May 2007

- 10 - IN THE COURT OF CRIMINAL APPEAL 2007/2982

SPIGELMAN CJ PRICE J McCALLUM J

10 JUNE 2008 Stephen Clyde HAMMOND v REGINA Judgment 1 Spigelman CJ: I agree with Justice McCallum and add the following brief observations. 2 Not only was there no evidence of a causal relationship between the applicant's psychiatric condition and the offence but there was no submission by counsel appearing in the sentencing proceedings to that effect. As Mr Hunt who appears on this appeal acknowledged, those submissions were directed to the subjective circumstances of the applicant rather than to the objective circumstances. 3 It is understandable in the light of the absence of a submission, and in the absence of evidence directly linking the psychiatric condition and the offence, that his Honour would not make express reference to it. 4 The position taken by counsel for the applicant at the sentence hearing can be justified on the basis that the only evidence directed to this issue is in fact to the contrary of the inference Mr Hunt urged on this court. Ms Robilliard in her report said, referring to the applicant: "He maintained that for some weeks leading up to his offence he was not adhering to his anti psychotic treatment regime. However, Stephen did not describe any thoughts or beliefs of a psychotic nature that might have had relevance to his aggressive treatment of Jeanette at the time."