| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0002
| KERRIE HOCHKINS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 May 2022 |
| DATE OF JUDGMENT: | 17 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 91 |
| JUDGMENT APPEALED FROM: | DPP v Clay, Freeman-Mackenzie & Hochkins (Unreported, County Court of Victoria, Judge Gamble, 14 December 2021) |
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CRIMINAL LAW – Appeal – Sentence – Burglary, theft of firearm and other offences – Applicant sentenced to 20 months’ imprisonment with 11 months non-parole – Two co-offenders – Whether sentence infringed parity principle – No error demonstrated – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr D McGlone | ||
| Respondent: | Mr C Boyce QC | ||
Solicitors | |||
| Applicant: | C Marshall & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BEACH JA:
Introduction
On 3 November 2019, the applicant and two co-offenders, Luke Glen Clay (‘Clay’) and Zachary Freeman-Mackenzie (‘Freeman-Mackenzie’), burgled premises in Ferny Creek and stole a quantity of firearms.
An indictment filed in the County Court charged each of the three with burglary and theft, and the applicant solely with three charges of possessing a drug of dependence.
On 27 July 2021, the applicant, Clay and Freeman-Mackenzie pleaded guilty to the charges on indictment, and each also pleaded guilty to diverse related summary offences.
Following pleas in mitigation, on 14 December 2021 the judge sentenced the applicant to a total effective sentence of 20 months’ imprisonment, with a non-parole period of 11 months; Clay to a total effective sentence of 18 months’ imprisonment, with a non-parole period of 10 months; and Freeman-Mackenzie to a total effective sentence of 19 months’ imprisonment, with a non-parole period of 12 months; in accordance with the tables set out below. (A fourth co-offender, Mitchell Mackenzie, pleaded guilty at a summary hearing to handling stolen goods.)
The applicant now seeks leave to appeal against her sentence on a single ground that contends that the sentencing judge ‘erred by failing to observe parity between co-accused’.
In our view, the applicant’s ground of appeal is without merit. Leave to appeal must be refused.
The applicant’s and co-offenders’ sentences
Set out in tabular form, the applicant’s sentence is as follows:
Charges on Indictment
Charge
Offence
Sentence
Cumulation
1
Burglary[1]
12 months
3 months
2
Theft of firearm[2]
15 months
Base
3
Possessing a drug of dependence[3] (methylamphetamine)
2 months (aggregate)
1 month
4
Possessing a drug of dependence (diazepam)
5
Possessing a drug of dependence (alprazolam)
Related summary offences
5
Driving whilst disqualified[4]
14 days
—
6
Using unregistered motor vehicle[5]
$1,000 fine
7
Using a vehicle displaying number plate other than issued[6]
$250 fine
8
Breach alcohol interlock condition[7]
$500 fine
10
Commit indictable offence whilst on bail[8]
Convicted and discharged
11
Dealing with property suspected of being proceeds of crime[9]
3 months (aggregate)
1 month
14
Dealing with property suspected of being proceeds of crime
15
Possess Schedule 4 Poison[10]
$250 fine
20
Commit indictable offence whilst on bail
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- AGLC
- Hochkins v The Queen [2022] VSCA 91
- Case
- [2022] VSCA 91
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the sentence imposed on the applicant was manifestly excessive or disproportionate in comparison to the sentences of his co-offenders, thus contravening the principle of parity. The court had to consider whether the trial judge had erred in failing to take into account the principle of parity, and if so, whether such an error was significant enough to warrant a reduction in the applicant's sentence. The court also needed to assess whether the sentence was appropriate in all the circumstances, including the nature and circumstances of the offences and the applicant's role in them.
The court found that there was no demonstrated error in the trial judge's approach to sentencing, and the sentence imposed was not manifestly excessive. The court held that the principle of parity required that sentences be proportionate, but it did not demand identical sentences for co-offenders unless they played an identical role in the commission of the offences. The court observed that the trial judge had considered the principle of parity and had exercised his discretion appropriately in imposing the sentence. The differences in the roles of the applicant and his co-offenders justified the disparity in their sentences. Consequently, the appeal was dismissed, and leave to appeal was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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