Citation: Regina v Hoswell [2000] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 21 June 2000
Judge(s): Grove J, Newman J
Background
The applicant, a 24-year-old man with a lengthy criminal record, pleaded guilty in the Sydney District Court to three counts: breaking, entering and stealing; possessing an implement capable of being used to enter a conveyance; and taking and driving a conveyance. Additional matters were taken into account on a Form 1. Gibson DCJ sentenced him to a minimum term of two years and six months with an additional term of ten months on the first count, with concurrent fixed terms of twelve months on each of the other two counts, all subsumed within the enveloping sentence.
The applicant sought leave to appeal against the severity of the sentence, appearing in person before the Court of Criminal Appeal. He submitted that his offending stemmed from drug use and an inability to cope with life stressors, and that he had not previously had a genuine opportunity for rehabilitation.
In support of his application, the applicant produced a certificate of attendance at a stress management course and a letter from a drug and alcohol counsellor attached to the Department of Corrective Services. He also noted that he had been assaulted while in custody and was being held on protection, making his incarceration more onerous.
Legal Issues
- Whether the sentence imposed by Gibson DCJ was within the sound range of sentencing discretion
- Whether post-sentencing developments, including the applicant's rehabilitative efforts and the assault in custody, provided a basis for the Court of Criminal Appeal to intervene
- Whether the additional term of ten months was manifestly inadequate
Decision
Grove J began by clarifying the Court of Criminal Appeal's function. As a court of error, its jurisdiction to intervene and substitute a sentence depends on the demonstration of an identifiable error in the court below. It does not conduct a fresh sentencing exercise. The drug and alcohol counsellor's letter, which appeared to assume the applicant was before the Court for resentencing, reflected a misunderstanding of this role.
The court acknowledged that the applicant had taken the sentencing judge's remarks to heart and found it encouraging that he was engaging in rehabilitative programs. However, the applicant's post-sentencing efforts, together with his assault in custody and other circumstances arising after sentencing, did not individually or collectively provide a basis for appellate intervention.
Grove J found the sentence imposed by Gibson DCJ was well within the range of a sound exercise of discretion, with no factual error apparent in the sentencing remarks or in the matters raised by the applicant. The applicant's specific request that the Court extend his additional term to give him a longer period of supervision at liberty was refused on the same basis.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed its role as a court of error: intervention requires identification of a specific error in the sentencing court's exercise of discretion, not merely a desire to have the sentence reconsidered afresh.
- Post-sentencing developments, including rehabilitative efforts and changed custodial circumstances such as being held on protection following an assault, do not in themselves found a basis for appellate intervention in a severity appeal.
- A sentence that falls within the range of a sound exercise of sentencing discretion, with no identifiable factual error, will not be disturbed on appeal.
- In dismissing the appeal, the Court acknowledged the applicant's rehabilitative steps without treating them as sufficient to demonstrate error below.
- No special matter of principle arose from this decision, and the Court's conclusions were confined to the facts and circumstances of this particular sentence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act (NSW) (Form 1 procedure)
Cases cited:
- None cited in the provided text