Hazell v R [2015] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hazell v R [2015] NSWCCA 26 Hearing dates: 23 February 2015 Decision date: 11 March 2015 Before: Hoeben CJ at CL at [1]; Harrison J at [2]; R A Hulme J at [25] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – mental health and intellectual issues – substance and alcohol abuse – sentences imposed upon the applicant were not unreasonable or plainly unjust – appeal dismissed Legislation Cited: Crimes Act 1900 Cases Cited: Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1 Category: Principal judgment Parties: Anthony Hazell (Applicant) Crown (Respondent) Representation: Counsel: S Corish (Applicant) K McKay (Respondent)

Solicitors: M Bowe (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/4254 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 17 December 2013 Before: Blanch J File Number(s): 2013/4254

Judgment 1. HOEBEN CJ at CL: I agree with Harrison J. 2. HARRISON J: The applicant was sentenced by his Honour Justice Blanch in the District Court of New South Wales on 17 December 2013 as follows: 1. On a count of assault occasioning actual bodily harm to a fixed term of imprisonment of 2 years commencing on 5 January 2013 and expiring on 4 January 2015. This is an offence contrary to s 59(1) of the Crimes Act 1900 and carries a maximum penalty of 5 years imprisonment. 2. On a count of aggravated detain for advantage to a non-parole period of 4 years commencing on 5 January 2013 and expiring on 4 January 2017 with an additional term of 2 years expiring on 4 January 2019. This is an offence contrary to s 86(2)(b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment. 3. On a count of reckless wounding to a fixed term of imprisonment of 3 years commencing on 5 January 2013 expiring on 4 January 2016. This is an offence contrary to s 35(4) of the Crimes Act and carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. 1. The applicant was therefore sentenced to a total sentence of 6 years imprisonment commencing on 5 January 2013 and expiring on 4 January 2019, with a total non-parole period of 4 years expiring on 4 January 2017. 2. All offences occurred on 5 January 2013 and the applicant has been in custody since his arrest on that day. He pleaded guilty to all three offences in circumstances attracting a 25 percent discount. The applicant contends that the sentences imposed were attended by error and liable to be set aside as manifestly excessive. He seeks leave to appeal and has raised three grounds of appeal as follows: 1. In considering the applicant's mental health issues, his Honour erred in failing to take into account: 1. The causal link between the applicant's mental health issues and the commission of the offences; and/or 2. The more onerous conditions of custody faced by the applicant. 1. The sentences imposed were otherwise manifestly excessive. 2. The learned sentencing judge erred in declining to set a non-parole period for the third count being an offence that carried a standard non-parole period.