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Hawke v The Queen

Hawke v The Queen

Case [2019] VSCA 276 27 November 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0156

HOWARD JOHN HAWKE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	27 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 276
JUDGMENT APPEALED FROM:	[2018] VCC 518 (Judge Wraight)

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CRIMINAL LAW – Appeal – Sentence – Sexual offences – Multiple Commonwealth and State offences – Leave to appeal confined to sentence for single State offence of sexual assault – Sentence of 2 years – Whether manifestly excessive – Appeal allowed – Resentenced to 6 months’ imprisonment – Total effective State sentence reduced – No change to non-parole period or commencement date of Commonwealth sentences or global total effective sentence – Ludeman v The Queen (2010) 31 VR 606, Kentwell v The Queen (2014) 252 CLR 601, DPP v Swingler [2017] VSCA 305 considered – Criminal Procedure Act 2009 ss 280–282.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G F Connelly	Cahills Solicitors
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
BEACH JA:

The appellant pleaded guilty in the County Court to seven offences on an indictment containing two State charges and five Commonwealth charges. On 19 April 2018, he was sentenced to a total effective sentence of 10 years and 3 months’ imprisonment, with a non-parole period of 7 years and 6 months.[1]
[1]DPP v Hawke [2018] VCC 518 (‘Reasons’).

In respect of the State offences, the judge imposed a total effective sentence of 4 years, with a non-parole period of 18 months, commencing on the date of sentence (19 April 2018). In respect of the Commonwealth offences, the judge imposed a total effective sentence of 8 years and 9 months’ imprisonment, and fixed a non-parole period of 6 years. The judge ordered that the first of the Commonwealth sentences to be served would commence on 19 October 2019, 18 months after he imposed sentence. Thus, the effect of the judge’s sentences and orders was to require the appellant to serve 18 months of the total effective State sentence (being the entirety of the State non-parole period) before serving the terms of imprisonment imposed for the Commonwealth offences.[2]
[2]As to the difficulties and complexities that confront a judge, and the possible approaches that may be taken, when he or she is required to sentence an offender for multiple State and Commonwealth offences, see DPP v Swingler [2017] VSCA 305, [63]–[87], and in particular [78] (Ferguson CJ, Maxwell P and Weinberg JA). See also Gaunt v The Queen [2019] VSCA 241, [18], [34] (Whelan JA).

The substance of the various sentences and orders made by the judge was as follows:

Charge Offence Maximum penalty Sentence Commencement/
Cumulation

1. Producing child abuse material outside Australia, contrary to s 273.6(1) Criminal Code (Cth) 15 years 7 years 19 October 2019

2. Sexual assault contrary to s 40(1) Crimes Act 1958 (Vic) 10…

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.

Continue reading Hawke v The Queen

Details

AGLC: Hawke v The Queen [2019] VSCA 276
Case: [2019] VSCA 276
Decision Date: 27 November 2019

CaseChat Overview and Summary

Hawke appealed against his sentence for a single state offence of sexual assault, which was a two-year imprisonment term. The appeal was limited to the sentence for the state offence, with the other sentences, both state and Commonwealth, remaining unchanged. The appellant's contention was that the sentence for the state offence of sexual assault was manifestly excessive. The appeal centred on the determination of whether the sentence imposed was excessive in light of the overall context of the appellant's criminal conduct and the principle of totality.

The legal issue at hand was whether the sentence for the single state offence of sexual assault was manifestly excessive. The court considered this by examining the principles of sentencing, particularly the principle of totality, which requires that the aggregate of a prisoner's sentences should not be manifestly excessive. The court also took into account the appellant's extensive criminal history, which included both state and Commonwealth offences. The court was required to balance the appellant's criminal history and the nature of the offences against the severity of the sentence imposed for the state offence of sexual assault.

The court found that the sentence for the state offence of sexual assault was manifestly excessive. It allowed the appeal and reduced the sentence for the state offence of sexual assault to six months' imprisonment. The court emphasised that the principle of totality must be applied to ensure that the aggregate of the appellant's sentences was not manifestly excessive. By reducing the sentence for the state offence of sexual assault, the court achieved a reduction in the total effective state sentence without affecting the non-parole period or commencement date of the Commonwealth sentences or the global total effective sentence. The court considered relevant authorities, including Ludeman v The Queen, Kentwell v The Queen, and DPP v Swingler, to support its decision. The court also referred to sections 280 to 282 of the Criminal Procedure Act 2009 in its reasoning.

Orders