Hilson v The King - [2023] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0183

JACKSON HILSON	Applicant
v
THE KING	Respondent

---

JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF JUDGMENT:	14 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 16
JUDGMENT APPEALED FROM:	[2022] VCC 1056 (Judge Lacava)

---

CRIMINAL LAW – Leave to appeal – Sentence – Multiple theft and burglary charges where applicant not principal offender – Statement in sentencing reasons did not accurately reflect applicant’s submissions – Whether impugned observation amounts to error in sentence – Misstatement had no effect on sentence – Application for leave to appeal refused.

---

Counsel
Applicant:		Mr C Grant
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Bowler & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

On 18 November 2020, the applicant, now aged 30 years,[1] and a co-offender, Kevin Grose (‘Grose’), entered a rural property in Charlton, Western Victoria. They drove to the address in a dark coloured BMW and began searching sheds, and stole a number of items, including two vehicles: a silver Nissan Navara and a white Ford Ranger dual cab.
[1]His date of birth is 24 March 1992.
On 20 November 2020, the applicant was located in Hoppers Crossing driving the stolen Nissan Navara.
On 23 June 2022, the applicant pleaded guilty to one charge of burglary[2] and two charges of theft.[3] Charge 5 alleged the theft of the Nissan vehicle and Charge 8 alleged theft of tools, a sprayer unit, car wheels, tie-down straps, a wire strainer, three bags of dog food and various calibre ammunition. On his plea of guilty, he was sentenced by a judge of the County Court on 5 July 2022 as follows:
[2]Contrary to Crimes Act 1958, s 76.
[3]Contrary to Crimes Act 1958, s 74.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
3	Burglary	10 years / 1200 penalty units	2 years and 6 months	Base
5	Theft	10 years / 1200 penalty units	12 months	6 months
8	Theft	10 years / 1200 penalty units	12 months	—
Total Effective Sentence:		3 years
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		591 days
Section 6AAA Statement:		Total Effective Sentence 5 years Non Parole-Period 3 years and 6 months
Other Relevant Orders: 1. Forfeiture and disposal orders

Grose pleaded guilty to seven charges of theft,[4] two charges of burglary,[5] two charges of theft of firearm,[6] prohibited person possess a firearm[7] and related driving offences.[8] The theft charges including the theft of two firearms which were stolen by Grose from the Charlton property. Grose was sentenced by the same judge on 8 July 2022 as follows:
[4]Contrary to Crimes Act 1958, s 74.
[5]Contrary to Crimes Act 1958, s 76.
[6]Contrary to Crimes Act 1958, s 74AA.
[7]Contrary to Firearms Act 1996, s 5.
[8]Contrary to Road Safety Act 1986, s 64 and Road Safety Rules 2017, r 300.

Charge on Indictment

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 Hilson v The King

Details

AGLC: Hilson v The King [2023] VSCA 16
Case: [2023] VSCA 16
Decision Date: 14 February 2023

CaseChat Overview and Summary

In the case of Hilson v The King, the applicant appealed against the sentence imposed on him following convictions for multiple theft and burglary charges. The High Court was tasked with determining whether the applicant, who was not the principal offender, was entitled to leave to appeal the sentence imposed on him. The applicant argued that the statement in the sentencing reasons did not accurately reflect his submissions, and that an impugned observation amounted to an error in sentence.

The legal issue before the court was whether the misstatement of the applicant’s submissions in the sentencing reasons amounted to an error in sentence that could justify the grant of leave to appeal. The court considered the effect, if any, that the misstatement had on the sentence and whether it was significant enough to warrant an appeal. The court noted that the misstatement did not have any effect on the sentence imposed on the applicant.

The court held that the misstatement of the applicant’s submissions in the sentencing reasons did not amount to an error in sentence. The court reasoned that the misstatement did not have any effect on the sentence imposed on the applicant, and that the applicant had not demonstrated that the misstatement had any impact on the overall sentence. As such, the court refused the applicant’s application for leave to appeal the sentence.

Orders