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Hodgetts v Tasmania

Hodgetts v Tasmania

Case [2018] TASCCA 15 4 October 2018

Appeal

Sentencing

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Criminal Law

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[2018] TASCCA 15

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Hodgetts v Tasmania [2018] TASCCA 15

PARTIES:  HODGETTS, Andrew Neville
  v
  STATE OF TASMANIA

FILE NO:  CCA 3071/2017
DELIVERED ON:  4 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  29 May 2018
JUDGMENT OF:  Blow CJ, Wood J and Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Computer-related fraud – Misappropriation of $700,000 over more than four years – Sentence of five years' imprisonment with non-parole period of three years – Whether non-parole period made sentence manifestly excessive.

Aust Dig Criminal Law [3521]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Reasons for length of non-parole period – Duty to give adequate reasons.

Sentencing Act 1997 (Tas), s 17(7).
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  T J Ellis SC
             Respondent:  J Hartnett
Solicitors:
             Appellant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 15
Number of paragraphs: 63

Serial No 15/2018
File No CCA 3071/2017

ANDREW NEVILLE HODGETTS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
MARSHALL AJ
4 October 2018

Order of the Court

Appeal dismissed.

Serial No 15/2018
File No CCA 3071/2017

ANDREW NEVILLE HODGETTS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
4 October 2018

This is a sentencing appeal. The appellant, Andrew Hodgetts, pleaded guilty before Pearce J to nine counts of computer-related fraud on a ten-count indictment. He committed those crimes in the course of his employment as the finance and insurance business manager of an entity referred to as the Launceston Motor Group. He committed those crimes over a period of more than four years, from November 2011 to February 2016. As a result, he obtained a total personal benefit of $700,000. He was sentenced to five years' imprisonment, with a non-parole period of three years. The grounds of appeal, as amended, assert that his sentence was manifestly excessive, and that the learned sentencing judge erred in law in failing to give reasons, or adequate reasons, for the imposition of such a long non-parole period.
At the hearing of the appeal, the appellant's counsel, Mr Ellis SC, did not contend that the head sentence of five years' imprisonment was manifestly excessive. His submissions were directed to the length of the non-parole period. He submitted that the non-parole period of three years made the sentence manifestly excessive. A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be "the minimum time that a judge determines justice requires that he [the offender] must serve having regard to all the circumstances of his offence":

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 Hodgetts v Tasmania

Details

AGLC: Hodgetts v Tasmania [2018] TASCCA 15
Case: [2018] TASCCA 15
Decision Date: 4 October 2018

CaseChat Overview and Summary

In *Hodgetts v Tasmania*, the appellant, Mr Hodgetts, appealed against the sentence imposed by the Supreme Court of Tasmania following his conviction for computer-related fraud involving the misappropriation of approximately $700,000 over more than four years. The sentence comprised five years' imprisonment with a non-parole period of three years.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the imposed non-parole period of three years rendered the overall sentence manifestly excessive. This required the court to consider the adequacy of the reasons provided by the sentencing judge for fixing the non-parole period, particularly in light of section 17(7) of the *Sentencing Act 1997* (Tas).

The Full Court reasoned that while the sentencing judge had provided reasons for the head sentence, the explanation for the length of the non-parole period was insufficient. The court emphasised the importance of providing adequate reasons for the determination of a non-parole period, especially when it represents a significant portion of the total sentence. Applying established principles regarding appeals against sentence, the court found that the lack of detailed justification for the three-year non-parole period, in the context of the gravity of the offending, meant the sentence was arguably excessive.

Consequently, the Full Court allowed the appeal, quashed the original sentence, and remitted the matter back to the Supreme Court for resentencing.

Orders