Hochkins v The Queen - [2022] VSCA 91

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

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 Hochkins v The Queen

Details

AGLC: Hochkins v The Queen [2022] VSCA 91
Case: [2022] VSCA 91
Decision Date: 17 May 2022

CaseChat Overview and Summary

In the case of Hochkins v The Queen, the applicant appealed against his sentence, which followed his conviction for burglary, theft of a firearm, and other related offences. The High Court of Australia was tasked with determining whether the sentence imposed on the applicant, which was 20 months' imprisonment with an 11-month non-parole period, infringed the principle of parity in sentencing. The applicant contended that his sentence was excessive in comparison to those of his two co-offenders, who received lesser sentences. This appeal raised significant legal issues regarding the principle of parity in sentencing, the appropriateness of the sentence, and whether the trial judge had erred in imposing the sentence.

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