Citation: Hemsworth v R [2025] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 12 February 2025
Judges: Mitchelmore JA, Davies J, Campbell J
Background
The applicant was convicted by jury of two serious offences: causing grievous bodily harm with intent (contrary to s 33(1)(b) of the Crimes Act 1900 (NSW)) and failure of a person with parental responsibility to care for a child, causing a danger of death (s 43A). He had also pleaded guilty in the Local Court to perverting the course of justice (s 319), which plea was maintained at trial. The offences involved catastrophic injuries inflicted on a child, compounded by the applicant's fabrication of a false alibi and the recruitment of others to support it.
On 10 September 2021, Judge Buscombe in the District Court imposed an aggregate sentence of 18 years and 6 months imprisonment, with a non-parole period of 13 years and 10 months. The applicant received a 15% discount on the indicative sentence for the public justice offence, reflecting his guilty plea. No discount was applied for assistance to authorities.
The applicant sought leave to appeal, arguing the sentencing judge had failed to consider his assistance to law enforcement while on remand, and that his legal representatives had failed to put that assistance before the court adequately.
Legal Issues
- Whether the sentencing judge erred by failing to consider the applicant's assistance to law enforcement authorities, as required under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the applicant's legal representatives were incompetent in failing to present available evidence of that assistance
- Whether, if either ground was established, the Court of Criminal Appeal should impose a lesser sentence on resentence
Decision
Ground 1: Failure to consider s 23
The Court found that the sentencing judge had failed to engage with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which governs discounts for assistance to authorities. The applicant's counsel had directly raised the matter at sentencing, yet the judge's reasons did not demonstrate that the argument had been considered, accepted, rejected, or that the discretion under s 23 had been exercised at all. This constituted error of the kind identified in House v The King (1936) 55 CLR 499, requiring the Court of Criminal Appeal to resentence.
Ground 2: Competence of counsel
The Court rejected the suggestion that the applicant's trial counsel had been incompetent. Counsel had squarely raised the assistance to police and the application of s 23, expressly seeking a reduction in sentence on those bases. The principles in R v Birks (1990) 19 NSWLR 677, which justify appellate intervention on grounds of counsel incompetence, were not engaged.
Ground 3: Resentencing
On resentencing, the Court exercised its discretion to decline to allow any discount under s 23. The connection between the offences for which the applicant was sentenced and the separate offending about which he had provided information to police was negligible or absent. The Court also took into account the applicant's persistent dishonesty, his lack of remorse for the injuries inflicted on the child, his refusal to seek medical assistance, and the fact that the information was provided in pursuit of his own financial interests. The Court concluded that any reduction would produce a penalty unreasonably disproportionate to the nature and circumstances of the offending under s 23(3). No lesser sentence than that passed by Judge Buscombe was warranted.
Orders Made
- Leave granted to the applicant to make his application for leave to appeal against sentence (under r 3.5 of the Supreme Court (Criminal Appeal) Rules 2021)
- Leave to appeal against sentence granted (under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW))
- Appeal dismissed
Key Takeaways
- A sentencing judge must demonstrate in their reasons that they have turned their mind to the discretion under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) where assistance to authorities has been directly raised by counsel; silence on the issue constitutes House v The King error.
- Upholding a sentencing error does not automatically result in a lesser sentence on resentence. The Court of Criminal Appeal independently exercises the sentencing discretion afresh, applying all relevant statutory requirements and sentencing principles.
- Under s 23, the court retains a discretion to decline any discount for assistance to authorities. Relevant factors include the nature and closeness of the connection between the offences being sentenced and the offending about which information was provided.
- Where assistance to police was rendered in pursuit of the offender's own financial interests, and where the connection to the sentenced offences is negligible, the court may decline to treat that assistance as warranting any reduction.
- Persistent dishonesty during proceedings, including the advancement of a false account at trial, is a circumstance that can inform the exercise of a sentencing discretion, even where the court is not treating absence of remorse as a standalone aggravating factor.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 43A, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44, 53A, 54
- Criminal Appeal Act 1912 (NSW), ss 6, 10
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases
- House v The King (1936) 55 CLR 499
- R v Birks (1990) 19 NSWLR 677
- Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Betts v The Queen (2016) 258 CLR 420
- Kentwell v The Queen (2014) 252 CLR 601
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v XX [2017] NSWCCA 90; 266 A Crim R 132
- Ahmad v R [2021] NSWCCA 30
- Owens v R [2023] NSWCCA 198
- R v Hemsworth [2021] NSWDC 638