Hart v R [2014] NSWCCA 172

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hart v R [2014] NSWCCA 172 Hearing dates: 15 August 2014 Decision date: 27 August 2014 Before: Gleeson JA at [1] Adamson J at [2] Bellew J at [3] Decision: (i) leave to appeal is granted; (ii) the appeal is allowed; (iii) the sentence imposed in respect of the offence of armed robbery on 10 November 2011 is quashed; (iv) in lieu thereof, the applicant is sentenced to a non-parole period of 7 years imprisonment commencing on 16 November 2012 and expiring on 15 November 2019 and a balance of term of 3 years imprisonment commencing on 16 November 2019 and expiring on 15 November 2022. (v) the sentences imposed upon the applicant are otherwise confirmed; (vi) the applicant will be eligible for parole on 16 November 2019 and his sentence will expire on 15 November 2022. Catchwords: CRIMINAL LAW - Appeal - Where evidence of applicant being institutionalised - Where evidence of applicant's difficulties in re-integrating into the community following previous release from custody - Where such evidence was the subject of submissions - Where sentencing judge omitted to refer to that issue on sentence - Error established

CRIMINAL LAW - Where sentencing judge failed to take into account evidence relevant to a finding of special circumstances - Error in exercise of discretion established - Finding of special circumstances made - applicant re-sentenced Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Jinnette v R [2012] NSWCCA 217 R v Hart NSWCCA (unreported) 21 June 1996 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 546 R v Simpson [2001] NSWSC 534; (2001) 53 NSWLR 704 R v Tuuta [2014] NSWCCA 40 R v Wasson [2014] NSWCCA 95 at [33] Category: Principal judgment Parties: Paul Mark Hart - Applicant Regina - Respondent/Crown Representation: Counsel: Solicitors: S E O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown File Number(s): 2011/367123 2012/60533 2012/61246 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-10-02 00:00:00 Before: Maiden SC DCJ