HILLIER v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 312

Reported Decision: 198 A Crim R 565

New South Wales Court of Criminal Appeal

CITATION: HILLIER v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 312 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20 July 2009

JUDGMENT DATE: 22 December 2009

JUDGMENT OF: Basten JA at 1; Hulme J at 65; Johnson J at 115

(1) Grant leave to appeal with respect to the sentences imposed in the District Court on 5 September 2008 in relation to: (a) the assault occasioning actual bodily harm, and (b) the break, enter and steal committed at Blacktown on 4 January 2007. (2) In respect of each sentence, allow the appeal and re-sentence the applicant as follows: (a) for the assault occasioning actual bodily harm, taking into account the matter on the Form 1, set – DECISION: (i) a non-parole period of two years and three months to commence on 12 May 2008 and expire on 11 August 2010, and (ii) a balance of the term of the sentence of nine months, commencing on 12 August 2010 and expiring on 11 May 2011; (b) in respect of the break, enter and steal, set – (i) a non-parole period of three years and four months commencing on 12 February 2010 and expiring on 11 June 2013, and (ii) a balance of the term of imprisonment of one year and two months commencing on 12 June 2013 and expiring on 11 August 2014 The applicant will be eligible for release on parole on 11 June 2013.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – proper approach to sentencing –whether principle of totality complied with – whether finding of special circumstances warranted – whether manifestly excessive - SENTENCE – relevant factors – antecedent criminal history – conditional liberty – offender in possession of lengthy record of prior criminal conduct – offences committed whilst on parole – whether relevant to assessment of objective seriousness of offences - WORDS & PHRASES – "conditional liberty" – "criminal record" – "objective seriousness" – "special circumstances" – "tinkering"