Citation: Hoskins v R [2016] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 8 August 2016
Judges: Payne JA, McCallum J, Wilson J
Background
The applicant was convicted of murder following a jury trial in March 2013. The offence arose from a confrontation at a co-offender's home, during which the deceased arrived armed with a gun and opened fire. After the deceased ran out of ammunition and attempted to flee on foot, he was chased and set upon by five men including the applicant, who carried a baseball bat. The deceased died from a stab wound inflicted by another participant in the joint criminal enterprise.
The applicant was sentenced to 12 years imprisonment with a non-parole period of 9 years. The sentence incorporated a 33 per cent reduction for provocation by the deceased, backdating for pre-sentence custody, and an allowance of 60 days for time spent under strict bail conditions.
Following his conviction appeal in 2014, the applicant sought leave in December 2015 to appeal out of time against sentence. He appeared unrepresented and advanced 13 grounds, most of which concerned his experience in custody or events arising after sentencing.
Legal Issues
- Whether leave to appeal out of time against sentence should be granted, given the apparent deliberate decision by former legal representatives to abandon the sentence appeal
- Whether the sentencing judge erred in his treatment of the applicant's psychological report
- Whether the applicant's ill health was properly taken into account
- Whether insufficient credit was given for time spent on bail under strict conditions (the "quasi-custody" question)
- Whether the sentence was disproportionate to those received by co-offenders (parity)
- Whether the effect of incarceration on the applicant's family was properly considered
- Whether the sentencing judge erred in declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Decision
The Court refused leave to appeal against sentence. The applicant's former legal representatives had been given substantial time to consider both a conviction appeal and a sentence appeal. The Court found it tolerably clear that they made a deliberate forensic decision to abandon the sentence appeal when a second Notice of Intention to Appeal, limited to conviction only, was filed in May 2014. Given the Court's conclusions that none of the 13 grounds had merit, that decision was well open to them.
On the psychological report, the Court found the sentencing judge had plainly read and considered the report but was entitled to assign it limited weight. The report lacked objective material such as specific test results, and its opinions were largely based on information supplied by the applicant himself, without him giving evidence as to the truth of those statements.
On quasi-custody, the Court acknowledged the established principle that time spent on onerous bail conditions may be treated as analogous to partial custody and attract a sentencing discount. However, it found no error in the sentencing judge's approach; the judge had already allowed 60 days credit, representing approximately 25 per cent of the bail period, which was a considered and open exercise of discretion. On parity, the Court noted that co-offenders occupied different positions in terms of their roles, criminality, and subjective circumstances, meaning no appellable disparity was established. The impact of imprisonment on the applicant's family was acknowledged but was found to fall within the ordinary consequences of a custodial sentence and did not constitute a mitigating factor beyond what the sentencing judge had considered.
On special circumstances, the Court confirmed that establishing facts capable of supporting such a finding does not compel the sentencing judge to make one. The applicant had not demonstrated error in the judge's discretion to decline the finding. The Court observed that a bare desire to reduce the non-parole period is not a proper basis for invoking special circumstances.
Orders Made
- Leave to appeal against sentence is refused.
Key Takeaways
- A deliberate forensic decision by legal representatives to abandon a sentence appeal is a significant factor weighing against granting leave to appeal out of time, particularly where the grounds advanced on a late application lack merit.
- Expert reports tendered in sentence proceedings carry very limited weight where their contents are based principally on self-reporting by the offender, without foundational evidence from the offender as to the truth of those statements (following R v Qutami [2001] NSWCCA 353).
- Where a sentencing judge has already applied a discount for time spent under strict bail conditions, no error arises simply because the applicant contends the discount was insufficient; the allowance is a matter of judicial discretion.
- Establishing facts that are capable of supporting a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 does not impose an obligation on the sentencing court to make that finding; an error in the exercise of the discretion must be demonstrated.
- In parity challenges involving co-offenders convicted of the same offence, differences in individual roles, objective criminality, and subjective circumstances can justify materially different sentences without giving rise to an unjustifiable sense of grievance.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 18
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 44
Cases
- Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417
- Hoskins v R [2014] NSWCCA 207
- Jiang v R [2010] NSWCCA 277
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v Cartwright (1989) 17 NSWLR 243
- R v Cramp [2004] NSWCCA 264
- R v Edwards (1996) 90 A Crim R 510
- R v Qutami [2001] NSWCCA 353
- R v Webb [2004] NSWCCA 230
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584