Hanania v R [2012] NSWCCA 220

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hanania v R [2012] NSWCCA 220 Hearing dates: 30 July 2012 Decision date: 12 October 2012 Before: Hoeben JA at [1] Johnson J at [2] Button J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - aggravated break enter and steal - no error in not obtaining pre-sentence report - whether double counting by taking Form 1 offences into account - no error in taking possession of safebreaking instrument on Form 1 into account - whether full-time custody manifestly excessive - whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Yang v R [2012] NSWCCA 49 Category: Principal judgment Parties: Anthony Hanania (applicant) Regina (respondent) Representation: Counsel: W Dawe QC (applicant) J Girdham (respondent) Solicitors: City Legal Solicitors (applicant) Solicitor for Public Prosecution (applicant) File Number(s): 2011/89403 Publication restriction: Nil Decision under appeal Date of Decision: 2012-03-01 00:00:00 Before: Keleman DCJ File Number(s): 2011/89403

Judgment 1Hoeben JA: I agree with Button J and the orders which he proposes. I particularly endorse his Honour's remarks in respect of Grounds 1 and 4. Grounds of Appeal expressed in terms of a sentencing judge "having insufficient regard to" some aspect of evidence, face a threshold difficulty in that they concede that some regard or weight was given to the evidence. This inevitably results in a direct challenge to the sentencing discretion of the judge. 2Johnson J: I agree with Button J. 3Button J: On 1 March 2012 in the District Court at Parramatta, his Honour Judge Keleman SC sentenced Anthony Hanania ("the applicant") for one count of aggravated break enter and steal. The circumstance of aggravation was that the offence was committed in company. The maximum penalty for the offence, pursuant to s 112(2) of the Crimes Act 1900, was imprisonment for 20 years. A standard non-parole period of imprisonment for 5 years attached to the offence. 4At the same time, a co-offender was dealt with for an identical offence. In light of the fact that the applicant has notified no ground of appeal founded on disparity, or any other ground that relates to the co-offender, I will not discuss the sentencing of the co-offender further in this judgment. 5In sentencing for the primary offence, his Honour took into account two offences on a Form 1. Because they found a ground of appeal, I will describe them in more detail than would usually be necessary. 6The first offence was possession of a safebreaking implement without lawful excuse. Pursuant to s 114(1)(b) of the Crimes Act, that offence carries a maximum term of imprisonment for 7 years. According to a Court Attendance Notice, the implement that founded that offence was an angle grinder. The second offence on the Form 1 was intentionally or recklessly damaging property. Pursuant to s 195(1)(a) of the Crimes Act, the maximum penalty was imprisonment for 5 years. Again, according to a Court Attendance Notice, the property was the front glass door of a jewellery shop. 7His Honour imposed upon the applicant a sentence comprising a non-parole period of imprisonment for 12 months with a parole period of 12 months. Accordingly, the head sentence was imprisonment for 2 years with a non-parole period of 12 months. Clearly, special circumstances were found upon which a variation of the statutory ratio was based. If that had not occurred, the non-parole period would have been 18 months.