DPP v Hudgson (Unreported, County Court of Victoria, Judge Wilmoth, 28 April 2016)
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CRIMINAL LAW – Sentence – Crown appeal – Respondent sentenced to 23 months’ imprisonment and two year Community Correction Order for intentionally causing serious injury in circumstances of gross violence – Common ground that trial judge erred in failing to declare 150 days’ pre-sentence detention – Whether trial judge erred in application of ss 10(1) and 10A of the Sentencing Act 1991 – Whether parity amounted to ‘a special reason’ for not fixing mandatory four year non-parole period – Whether sentence manifestly inadequate – Crown appeal allowed – Respondent sentenced to five years’ imprisonment with non-parole period of four years – Crimes Act 1958 s 15A – Sentencing Act 1991 ss 10, 10A.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr C B Boyce QC with Mr Doyle
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr T E Wraight QC with Mr J G Westmore
Michael Brugman, Barristers and Solicitors
WEINBERG JA WHELAN JA PRIEST JA:
The respondent, now aged 36, stood trial in the County Court at Melbourne on one charge of intentionally causing serious injury (‘ICSI’), in circumstances of gross violence. That offence, contrary to s 15A of the Crimes Act 1958, was introduced in 2013.[1] It carries a maximum sentence of 20 years’ imprisonment, with a mandatory minimum non-parole period of four years.
[1]Section 15A was inserted by s 4 of Act No 6 of 2013. Section 15B, which creates a cognate but lesser offence of recklessly causing serious injury in circumstances of gross violence was introduced by the same Act. That offence, oddly enough, creates a mandatory minimum non-parole period of the same four years as the s 15A offence.
On 28 April 2016, the respondent was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Cause serious injury intentionally in circumstances of gross violence [Crimes Act 1958 s 15A]
23 months’ imprisonment and 2 year Community Correction Order
Non-Parole Period:
N/A
Pre-sentence Detention Declared:
Not declared (150 days)
6AAA Statement:
N/A
Other orders: Community Correction Order including 150 hours of Community Service, Supervision and Treatment and Rehabilitation conditions.
A co-offender, Sean Kennedy, who had earlier pleaded guilty to recklessly causing serious injury, contrary to s 17 of the Crimes Act, was sentenced in July 2015 to a four year Community Correction Order (‘CCO’). Unlike the offence under s 15A, this offence does not have a mandatory minimum non-parole period (but does carry a maximum sentence of 15 years’ imprisonment).
Section 15A relevantly…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DPP v Hudgson [2016] VSCA 254
Case
[2016] VSCA 254
Decision Date
CaseChat Overview and Summary
In this case, the Director of Public Prosecutions (DPP) appealed against the sentence imposed on the respondent, Hudgson, who was convicted of intentionally causing serious injury in circumstances of gross violence. The trial judge sentenced Hudgson to 23 months’ imprisonment and a two-year Community Correction Order. The DPP argued that the trial judge failed to declare 150 days’ pre-sentence detention and erred in applying sections 10(1) and 10A of the Sentencing Act 1991. The court had to determine if the trial judge's error amounted to the sentence being manifestly inadequate.
The court held that the trial judge erred by not declaring the 150 days’ pre-sentence detention. However, the court found that the trial judge did not err in applying sections 10(1) and 10A of the Sentencing Act 1991. The court held that the trial judge's consideration of the parity between the sentences of co-offenders did not amount to ‘a special reason’ for not fixing the mandatory four-year non-parole period. Nevertheless, the court found that the sentence was manifestly inadequate, and the appeal was allowed. The respondent was sentenced to five years' imprisonment with a non-parole period of four years.
The court considered the principles of sentencing, the nature of the offence, and the principles of parity and proportionality in arriving at its decision. The court held that the trial judge's consideration of the parity between the sentences of co-offenders did not constitute a special reason for not fixing the mandatory non-parole period. However, the court found that the sentence was manifestly inadequate, and the appeal was allowed. The respondent was re-sentenced to five years' imprisonment with a non-parole period of four years.
The final orders of the court were that the appeal was allowed, and the respondent was sentenced to five years' imprisonment with a non-parole period of four years. The court held that the trial judge's consideration of the parity between the sentences of co-offenders did not constitute a special reason for not fixing the mandatory non-parole period. However, the court found that the sentence was manifestly inadequate, and the appeal was allowed. The respondent was re-sentenced to five years' imprisonment with a non-parole period of four years.