Hudson v R - [2016] NSWCCA 278

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hudson v R [2016] NSWCCA 278
Hearing dates: 21 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Before: Hoeben CJ at CL at [1]
R A Hulme J at [70]
Schmidt J at [74]
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – two counts of dishonestly obtain a financial advantage and fourteen counts of make and use a false instrument – whether finding of some degree of planning was open on the evidence – whether delay adequately taken into account – whether finding of a significant level of overall criminality was open on the evidence – cheques drawn for large sums of money – significant harm caused to victims – delay properly taken into account – modest sentence in all the circumstances – appeal dismissed.
Legislation Cited: Crimes Act 1900 – ss 178BA, 300(1), 300(2)
Crimes (Sentencing Procedure) Act 1999 – s 21A
Criminal Code – s 135.1(1)
Cases Cited: Luong v R [2014] NSWCCA 129
Moore v R [2016] NSWCCA 185
R v Mills [2005] NSWCCA 175; 154 A Crim R 40
R v RMW [2016] NSWCCA 211
R v Todd (1982) 2 NSWLR 517
Category: Principal judgment
Parties: Suzanne Hudson – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr G Jones - Applicant
Ms V Lydiard – Respondent Crown
Solicitors:
Sydney Criminal Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/220114
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 May 2010

Before:

Robison DCJ

File Number(s):

2013/220114

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 27 May 2016 the applicant was sentenced by Robison DCJ on 16 counts as follows:

Two counts of dishonestly obtain financial advantage contrary to s 178BA of the Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years.

7 counts of make false instrument contrary to s 300(1) of the Crimes Act for which the maximum penalty is imprisonment for 10 years.

7 counts of use a false instrument contrary to s 300(2) of the Crimes Act for which the maximum penalty is imprisonment for 10 years.

There is no standard non-parole period applicable to any of the offences.

His Honour imposed an aggregate sentence of imprisonment for 2 years and 9 months with a non-parole period of 1 year and 6 months commencing 27 May 2016.
The indicative sentences were as follows:

Number

Offence

Section and Act

Max. Pen

Indic. Sent.

1

Make false instrument

s 300(1) Crimes Act 1900

10 years

8 months

2

Use false instrument

s 300(2) Crimes Act 1900

10 years

8 months

3

Make false instrument

s 300(1) Crimes Act 1900

10 years

1 year 4 months

4

Use false instrument

s 300(2) Crimes Act 1900

10 years

1 year 4 months

5

Make false instrument

s 300(1) Crimes Act 1900

10…

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 Hudson v R

Details

AGLC: Hudson v The Queen [2016] NSWCCA 278
Case: [2016] NSWCCA 278
Decision Date: 02 December 2016

CaseChat Overview and Summary

The appeal was heard by the High Court against the respondent, the Crown, regarding a sentence imposed by the lower court. The appellant, Hudson, was found guilty of two counts of dishonestly obtaining a financial advantage and fourteen counts of making and using a false instrument. The primary issue before the court was whether the lower court was correct in finding some degree of planning in the offences, given the cheques drawn for large sums of money. Additionally, the court needed to determine whether the delay in bringing the matter to court was adequately taken into account and whether the overall level of criminality was significant.

The court considered the nature of the offences, which involved large sums of money and caused significant harm to the victims. The appellant argued that the lower court did not adequately consider the delay in sentencing and that the overall level of criminality was not significant. However, the court found that the lower court had correctly identified some degree of planning in the offences, as evidenced by the cheques drawn for large sums of money. The court also held that the delay in bringing the matter to court was adequately taken into account in the sentencing process. Given the significant harm caused to the victims and the nature of the offences, the court found that a significant level of overall criminality was indeed present.

In light of the court's findings, the appeal was dismissed, and the sentence imposed by the lower court was upheld. The court held that the sentence was modest in all the circumstances, considering the harm caused to the victims and the nature of the offences. The court found that the lower court had appropriately balanced the various factors in reaching its sentencing decision.

Orders