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Court of Criminal Appeal 8 November 2021

Hesketh v R

[2021] NSWCCA 262

Assault & violenceFirearms & weapons
CRIME APPEALS APPEAL AGAINST CONVICTION RECKLESS WOUNDING WRONG DECISION ON A QUESTION OF LAW THE RULE AGAINST DOUBLE PUNISHMENT

Citation: Hesketh v R [2021] NSWCCA 262
Court: Court of Criminal Appeal, NSW
Date: 8 November 2021
Judges: Bell P; Price J; Hamill J

Background

The applicant pleaded guilty to two offences arising from a single incident on 18 August 2018 at Darlington Point: discharging a firearm with intent to cause grievous bodily harm (the discharge offence, under s 33A(1)(a) of the Crimes Act 1900), and reckless wounding (the wounding offence, under s 35(4)). Both offences were committed against the same victim and arose from the same physical act, the discharge of a shortened .22 calibre bolt action rifle.

The sentencing judge imposed an aggregate sentence of 11 years' imprisonment with a non-parole period of seven years and six months. The indicative sentence for the discharge offence was ten years (with a seven-year non-parole period), and for the wounding offence three years (with a two-year non-parole period). The aggregate sentence reflected a modest degree of notional accumulation, adding one year to the head sentence and six months to the non-parole period beyond the discharge offence's indicative sentence alone.

Despite having pleaded guilty to the wounding offence, the applicant challenged both his conviction on that count and the aggregate sentence. The core argument was that the criminality of the wounding offence was entirely subsumed by the discharge offence, such that conviction and punishment on both amounted to impermissible double punishment.

  • Whether the sentencing judge erred by imposing a conviction and sentence for the wounding offence when the criminality of that offence was said to be wholly subsumed by the discharge offence (Ground 1)
  • Whether the sentencing judge erred by failing to make the sentence for the wounding offence wholly concurrent with the sentence for the discharge offence (Ground 2)
  • Whether the aggregate sentence was manifestly excessive (Ground 3)

Decision

Ground 1: Double punishment and subsumption. The Court granted leave to appeal against conviction but dismissed the appeal. Although both offences arose from the same physical act, they carried different legal elements. The discharge offence required proof of intent to cause grievous bodily harm; the wounding offence required proof of wounding and recklessness as to actual bodily harm. The fact that the sentencing judge could treat the wounding as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 did not mean the whole criminality of the wounding offence was subsumed. The Court rejected the argument that conviction itself constitutes punishment in the relevant sense for the purposes of the double punishment rule.

Ground 2: Concurrency of indicative sentences. The Court held that, where an aggregate sentence is imposed, it is conceptually incoherent to speak of the individual indicative sentences running concurrently or cumulatively with each other. The aggregate sentence is the operative sentence, and the indicative sentences inform its construction rather than stand independently. The Court also held that, even absent an aggregate sentence, full concurrency would only have been appropriate if the sentencing judge had fully accounted for the wounding in fixing the indicative sentence for the discharge offence, which he had not. The small degree of notional accumulation actually applied was consistent with the principle of totality and avoided disproportionate punishment.

Ground 3: Manifest excess. The applicant's real complaint, on analysis, was that the indicative sentence for the discharge offence was manifestly excessive. The Court held that individual indicative sentences within an aggregate sentencing exercise are not themselves amenable to appeal. Further, even if an indicative sentence were excessive in isolation, that would not necessarily render the aggregate sentence manifestly excessive. The aggregate sentence of 11 years was not, in the Court's view, manifestly excessive.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A conviction on two counts arising from a single act does not constitute impermissible double punishment merely because the offences share factual commonality, provided each offence contains distinct legal elements and the sentencing judge consciously avoids disproportionate accumulation.
  • Where an aggregate sentence is imposed under the Crimes (Sentencing Procedure) Act 1999, individual indicative sentences are not independently amenable to appeal for manifest excess; the appeal must be directed at the aggregate sentence itself.
  • Concepts of concurrency and accumulation apply at the level of the aggregate sentence, not between individual indicative sentences. Describing indicative sentences as "concurrent" or "cumulative" with each other has no operative legal meaning within an aggregate sentencing exercise.
  • Under the principle of totality (drawn from Pearce v The Queen (1998) 194 CLR 610 and Nguyen v The Queen (2016) 256 CLR 656), a sentencing court need not make all sentences wholly concurrent simply because offences share a common factual basis; the court must instead ensure the overall sentence is not disproportionate to the total criminality involved.
  • The Court of Criminal Appeal distinguished the Victorian decision in R v Sessions [1998] 2 VR 304, finding it did not support quashing a conviction for an offence whose elements were genuinely distinct from those of a concurrently charged offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4A, 33, 35, 51B, 110
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A, 25D, 52A(4), 53A

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Cashel v R [2018] NSWCCA 292
- Baradi v The Queen (2018) 273 A Crim R 468; [2018] NSWCCA 143
- Portolesi v The Queen (2012) 227 A Crim R 170; [2012] NSWCCA 157
- McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94
- Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270
- Dean v R [2015] NSWCCA 307
- Kirby v R [2021] NSWCCA 162
- McFarland v R [2021] NSWCCA 79
- R v Sessions [1998] 2 VR 304 (distinguished)