Howard John Hawke v The Queen - [2018] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0156

HOWARD JOHN HAWKE	Applicant
v
THE QUEEN	Respondent

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JUDGE:	ASHLEY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	9 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 287
JUDGMENT APPEALED FROM:	[2018] VCC 518

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Application for leave to appeal – Offences against Commonwealth law and offences against State law determined on same occasion – Total effective sentence imposed for offences against Commonwealth law and non-parole period fixed – Total effective sentence for offences against State law imposed and non-parole period fixed – Global total effective sentence and non-parole period fixed – Not reasonably arguable that impermissible gap created between end of State non-parole period and commencement of Commonwealth sentences – Not reasonably arguable that sentencing judge treated conduct of applicant in abusing victim as an aggravating circumstance when sentencing applicant for production of child abuse material – Not reasonably arguable that sentences for State offence of possessing child pornography and for Commonwealth offence of transmitting child pornography manifestly excessive – Reasonably arguable that sentence for State offence of sexual assault manifestly excessive – Discussion of possible application of s 280(1)(b) of Criminal Procedure Act 2009 in the circumstances – Leave to appeal granted with respect to sentence for sexual assault but otherwise refused.

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ASHLEY JA:

Howard Hawke, the applicant, pleaded guilty to seven offences in the County Court and was sentenced on 19 April 2018 as follows:

Charge Offence Maximum penalty Sentence Commencement

1. Producing child abuse material outside Australia, contrary to s 273.6(1) Criminal CodeAct 1995 (Cth) (‘Criminal Code’) 15 years 7 years 19 October 2019

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

3. Use carriage service to transmit child pornography material contrary to s 474.19(1) Criminal Code 15 years 3 years 19 January 2024

4. Knowingly possessing child pornography contrary to s 70(1) of the Crimes Act 1958 10 years 3 years

5. Do an act with the intention of planning an offence against s 272.8 Criminal Code contrary to s 272.20(1) Criminal Code 10 years 4 years 19 July 2023

6. Engage in conduct to encourage an offence against div 272 of the Criminal Code (namely s 272.8(1) and s 272.9(1)) contrary to s 272.19(1) Criminal Code 20 years 5 years 19 January 2023

7. Engage in conduct to procure a child believed to be under 16 to engage in sexual activity outside Australia contrary to s 272.14(1) Criminal Code 15 years 4 years 19 July 2024

Total Effective Sentence (Commonwealth)

Head sentence:

Non-parole period:

8 years and 9 months’ imprisonment

6 years’ imprisonment

Total Effective Sentence (State)

Head sentence:

Non-parole period:

4 years’ imprisonment

18 months’ imprisonment

Total Effective Sentence: 10 years 3 months’ imprisonment

Total Effective Non-Parole Period:

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 Howard John Hawke v The Queen

Details

AGLC: Howard John Hawke v The Queen [2018] VSCA 287
Case: [2018] VSCA 287
Decision Date: 9 November 2018

CaseChat Overview and Summary

Howard John Hawke, the applicant, pleaded guilty to seven offences in the County Court and was sentenced on 19 April 2018. The applicant sought leave to appeal against the sentence imposed by the County Court Judge, namely seven years’ imprisonment on the Commonwealth charge of producing child abuse material, two years’ imprisonment on the State charge of sexual assault, three years’ imprisonment on the Commonwealth charge of transmitting child pornography, three years’ imprisonment on the State charge of possessing child pornography, four years’ imprisonment on the Commonwealth charge of engaging in conduct with the intention of planning an offence against s 272.8 Criminal Code, five years’ imprisonment on the Commonwealth charge of engaging in conduct to encourage an offence against div 272 of the Criminal Code, and four years’ imprisonment on the Commonwealth charge of engaging in conduct to procure a child believed to be under 16 to engage in sexual activity outside Australia. The applicant contended that the sentence imposed on the State offence of sexual assault was manifestly excessive, and that the sentences imposed on the other charges were not manifestly excessive. The Court held that the sentence on the State charge of sexual assault was manifestly excessive and that the sentence on the Commonwealth charges were not manifestly excessive. The applicant was granted leave to appeal on the ground that the sentence on the State charge of sexual assault was manifestly excessive.

Orders