Hudson v Tasmania

[2012] TASCCA 14

[2012] TASCCA 14

COURT:                  SUPREME COURT OF TASMANIA

CITATION:              Hudson v Tasmania [2012] TASCCA 14

PARTIES:  HUDSON, Sean Timothy
  v
  STATE OF TASMANIA

FILE NO:  CCA 408/2012
DELIVERED ON:  19 December 2012
DELIVERED AT:  Hobart
HEARING DATE:  20 September 2012
JUDGMENT OF:  Blow, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Parity between co-offenders – Murder – Accessory after the fact and principal offender.

Postiglione v R (1997) 189 CLR 295, followed.
Aust Dig Criminal Law [3521], [3522]

REPRESENTATION:

Counsel:
           Appellant:  A J Hall
           Respondent:  J Ransom
Solicitors:
           Appellant:  Grant Tucker
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2012] TASCCA 14
Number of paragraphs:  20

Serial No 14/2012
File No CCA 408/2012

SEAN TIMOTHY HUDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
PORTER J
WOOD J
19 December 2012

Order of the Court

Appeal dismissed.

Serial No 14/2012
File No CCA 408/2012

SEAN TIMOTHY HUDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
19 December 2012

1. This is an appeal against sentence.  The appellant, Sean Hudson, and a man named Neville Whiting were jointly charged with murdering a man named Scott Rock in Launceston on or about 29 March 2011.  They were tried together before Evans J.  Whiting was found guilty of murder.  The appellant was found not guilty of murder and not guilty of manslaughter, but guilty of being an accessory after the fact to murder.  He was subsequently indicted on a charge of unlawfully assaulting Scott Rock by punching him twice to the jaw.  He pleaded guilty to that charge.  In relation to the two crimes of assault and being an accessory after the fact to murder, Evans J convicted the appellant, sentenced him to 7½ years' imprisonment, and ordered that he be eligible for parole after serving 5½ years of that sentence.  This is an appeal from those orders.

1. There are two grounds of appeal, as follows:

"1That the sentence of 7 ½ years imprisonment with a non parole period of 5 ½ years was manifestly excessive in all the circumstances.

2That the Learned Justice had no regard or insufficient regard to the principal [sic] of parity compared to the Applicant's co-accused Neville Lindsay Whiting."

Was the sentence manifestly excessive?

1. On the night of the murder, the appellant and Neville Whiting were visiting a woman named Teena Kelly at her home in Ravenswood.  Scott Rock arrived and entered the residence.  There was an argument.  The events that followed, as recounted by the learned judge in his sentencing comments, were as follows:

"Scott Rock left the residence and walked away up the road.  Sean Hudson followed Scott Rock and they continued to abuse each other.  Neville Whiting followed Sean Hudson. 

About 150 metres from Teena Kelly's home, Sean Hudson and Scott Rock came together face-to-face.  Sean Hudson punched Scott Rock twice to the jaw and, on the case against Sean Hudson, this caused Scott Rock to fall to the ground but not to lose consciousness.  Again, on the case against Sean Hudson, at this point he walked away leaving Scott Rock on the ground but, as he did so, Neville Whiting stepped in, stomped on Scott Rock's head three or four times and struck his head with a bag that Scott Rock had been carrying. Inside this bag were about five stubbies of beer contained within the plastic skin that stubbies are sold in."

1. The assault charge relates to the appellant punching Mr Rock twice to the jaw.  Mr Rock died as a result of the conduct of Neville Whiting, who was said to have stomped on his head three or four times and to have struck his head with the bag of stubbies. The appellant was not criminally responsible for that conduct.  He and Whiting left Mr Rock and returned to Teena Kelly's residence.  They left Mr Rock lying on the road.  A short while later, the appellant went back to check on him, concluded that he was dead, and returned to Teena Kelly's residence.  The events that followed, as described by the learned sentencing judge, were as follows:

"Thereafter, with Neville Whiting driving Teena Kelly's station wagon, the defendants went back to Scott Rock's body.  They loaded the body into the station wagon on a tarpaulin and drove to the nearby residence of Scott Keating. …

At Scott Keating's residence both defendants made comments about that which had occurred in the presence of Scott Keating and Ricky Lockwood, who had been called to that residence to drive Scott Keating to the 24 hour shop to purchase alcohol.  Before going to the 24 hour shop, Scott Keating and Ricky Lockwood observed Scott Rock's body in the back of the station wagon.  Ricky Lockwood, Scott Keating and Sean Hudson set off for the 24 hour shop at about 3am.  Shortly thereafter, Neville Whiting drove the station wagon containing Scott Rock's body to the Hollybank forest near Lilydale.  He there dumped the body on the side of a bush track, covered it with timber, doused it with petrol from a can that he had taken from Scott Keating's residence, and set fire to it.  The incinerated remains of the body were discovered by a spotlighting kangaroo shooter at about 7.30pm on 4 April 2011. 

Further matters that bear on Sean Hudson's conviction as an accessory after the fact to murder include:

·    that at about 8am on the morning of the murder he and Neville Whiting took the station wagon to a car wash where they endeavoured to remove any sign that the body had been in it;

·    that a few hours later, having purchased bleach and carpet cleaner, Sean Hudson again took the wagon to that car wash with the same intent.  On this occasion he was not accompanied by Neville Whiting; and

·    that Sean Hudson played a role in implementing an arrangement by which Teena Kelly swapped the station wagon for the vehicle of a friend."

1. In relation to the appellant's crimes and their impact, the following matters were all relevant to sentencing:

·    The appellant had no justification for following Mr Rock away from the residence and attacking him.

·    His assault on Mr Rock, which caused him to fall to the ground, left him in a vulnerable situation.  It was during the resulting period of vulnerability that he was fatally injured by Whiting, before he was able to get up.

·    The appellant was callously indifferent to the death of Mr Rock.

·    The verdict of the jury indicated that they were satisfied beyond reasonable doubt that the appellant had deliberately assisted a murderer in the concealment of his crime in order that he might escape just punishment.

·    The learned sentencing judge made a finding, which has not been challenged in this appeal, that the appellant and Whiting shared an intention to dispose of the body. 

·    His Honour also concluded that he was not persuaded that the appellant was aware that Whiting had in mind burning the body.  That conclusion has not been challenged in this appeal either.

·    It was in the appellant's interests to participate, to the extent that he did, in the removal and disposal of the body and the destruction of evidence.  That was because it was likely that he would be suspected and accused of complicity in the murder.  His conduct as an accessory after the fact did not benefit Whiting alone.  It also had the advantage of reducing the chances that he would be suspected and charged.

·    There was no arrangement for the appellant to receive any payment or reward for assisting Whiting.

·    The appellant's actions did not result in Whiting escaping a conviction for murder. 

·    The devastating impact of Mr Rock's death on those who cared for him was compounded by the concealment and disposal of his body.

1. The appellant was 37 years old when he was sentenced.  He had been to prison many times, beginning in 1994.  Some of his sentences related wholly or partly to crimes of violence.  In 1995 he was sentenced to 18 months' imprisonment for causing grievous bodily harm and wounding.  In 1996 he was sentenced to four months' imprisonment for assault.  In 1997 he was sentenced to three years' imprisonment for aggravated armed robbery.  In August 2000 he was sentenced to four years' imprisonment for another aggravated armed robbery.  In 2007 a magistrate sentenced him to four months' imprisonment for offences that included two assaults.  In March 2009 a magistrate sentenced him to 12 months' imprisonment for offences that included one assault.

1. There was little to take into account in mitigation of penalty.  The appellant participated in a police interview on 8 April 2011 during which he gave a helpful account of Whiting's conduct.  He pleaded guilty to the assault charge.  He had been working as a self-employed concreter.  He is the father of four children, but none of them were living with him. 

1. When an appellant contends that a sentence of imprisonment is manifestly excessive, the principles to be applied by the appellate court are those summarised by Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR 499 in the following passage at 504 – 505:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. In this case, no specific error can be detected in the reasoning or comments of the learned sentencing judge.  None has been asserted.  The appeal can therefore only succeed if we conclude that the head sentence of 7½ years, or the non-parole period of 5½ years, or each of them, was so long as to be "unreasonable or plainly unjust".

1. Fortunately it is not at all common for judges of this Court to have to sentence offenders for being accessories after the fact to murder.  As Underwood J (as he then was) remarked in Legge v R [2002] TASSC 62 at par[6], "… there is no tariff for sentences for being an accessory after the fact of murder". A lot depends on how much the offender did to help the murderer or murderers. Having regard to all the factors I have referred to, particularly those relating to the appellant's criminal record, the extent of his participation in the concealment of the killing, and the fact that the assault must also be taken into account, I am not persuaded that the head sentence of 7½ years' imprisonment was manifestly excessive.

1. A non-parole period represents the minimum period of imprisonment that a crime requires: Power v R (1974) 131 CLR 623 at 628. Fixing a non-parole period gives a sentencing judge the opportunity to mitigate a penalty of imprisonment in favour of the rehabilitation of the prisoner through conditional freedom: Power at 629; Carr v R (2002) 11 Tas R 362 at par[96]. The non-parole period must be at least half the length of the head sentence: Sentencing Act 1997, s17(3). The appellant has responded badly in the past to some opportunities for rehabilitation. He was dealt with by courts for breaching the conditions of suspended sentences in 1994 and 2006. He was on parole when he committed his first aggravated armed robbery in January 1997. He was on probation when he committed the crimes in question. Having regard to those matters, and to the appellant's generally bad record, I think a non-parole period of well above the minimum was warranted, and that the period of 5½ years chosen by the learned sentencing judge was not manifestly excessive. That period was less than 75% of the head sentence, and allowed for the possibility that the appellant would not be required to serve up to two years of his sentence.

1. For these reasons, ground 1 should fail.

Parity

1. Neville Whiting was convicted on the murder charge and sentenced to 20 years' imprisonment with a non-parole period of 11 years.  As counsel for the appellant pointed out, that non-parole period was exactly twice as long as the appellant's. 

1. The High Court held in Lowe v R (1994) 154 CLR 606 that a discrepancy between the sentences imposed on co-offenders will attract appellate intervention where the discrepancy is so great as to give rise to a justifiable sense of grievance and the appearance of injustice. However the appellant in this case is not complaining that there was too great a discrepancy between his sentence and Whiting's sentence. He is complaining that there should have been a greater discrepancy because Whiting was the murderer and he was an accessory after the fact whose crimes involved a much lower degree of criminality. There is no reason in principle why an appellate court should not, in an appropriate case, reduce the sentence of an accessory, even a sentence that is not manifestly excessive, if, in comparison to the sentence imposed on the principal offender, there is not a disparity that properly reflects different degrees of criminality and/or differences in circumstances. In Postiglione v R (1997) 189 CLR 295 at 301 – 302, Dawson and Gaudron JJ said (omitting footnotes):

"Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. …

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

1. The question to be determined in relation to ground 2 is whether, having regard to the sentences of Whiting and the appellant, their different circumstances, and their different degrees of criminality, there is a disproportion in that, by reference to Whiting's sentence, the appellant's sentence is disproportionately high.

1. The matters relevant to a comparison of the sentences imposed upon Whiting and the appellant include the following:

·    Whiting killed the deceased.  The appellant had no involvement in the killing.  He assaulted the deceased by punching him twice to the jaw, thus causing him to fall, and by taking steps to dispose of the body and conceal the crime with a view to Whiting not being brought to justice.

·    The learned sentencing judge accepted that Whiting did not intend to kill the deceased, but that he killed him by unlawful acts which he knew, or ought to have known, to be likely to cause death, and was thus guilty of murder by virtue of the Criminal Code, s157(1)(c).

·    Whiting was sentenced on the basis that his crime was impulsive, not premeditated.

·    Whiting was 32 years old when sentenced.  He had no prior convictions for any crime involving violence.  He had evidently been to prison only once – in 2009 for dishonestly obtaining a financial advantage.  He had drink-driving convictions, and a long-standing problem with alcohol.  He was a disability support pensioner as a result of a back injury and intellectual disability.

·    Whiting had been assessed as a medium security prisoner, and had accepted responsibility for the care of an elderly life prisoner.

1. In my view the disparity between Whiting's 20-year head sentence and the appellant's head sentence of 7½ years was warranted by the nature of the crimes they committed.  Whiting was the murderer.  The appellant was someone who punched the victim twice, and later became involved as an accessory after the fact to murder.  In my view it was appropriate for Whiting's non-parole period to be 55% of his head sentence because of his personal circumstances, particularly his lack of prior convictions for offences involving violence, the fact that he had taken on the care of an elderly life prisoner, and the fact that he had only been to prison once before.  In all the circumstances, a long period of conditional release could be very appropriate for him.  Having regard to the substantial differences between the two men's criminal records, and to the appellant's bad responses to past opportunities for rehabilitation, I do not think it can be said that the appellant's non-parole period of 5½ years is so close to Whiting's non-parole period of 11 years as to give rise to a justifiable sense of grievance or the appearance of injustice.  Ground 2 should therefore also fail.

Conclusion

1. For these reasons, I would dismiss the appeal.

   File No CCA 408/2012

SEAN TIMOTHY HUDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
19 December 2012

1. I agree with the reasons for judgment of Blow J.  I would also dismiss the appeal.

   File No CCA 408/2012

SEAN TIMOTHY HUDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
19 December 2012

1. I agree that the appeal should be dismissed for the reasons stated by Blow J.