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Hudson v The Queen

Hudson v The Queen

Case [2010] VSCA 32 5 February 2010

Appeal

Sentence

Possession of child pornography

Resentencing

Risk Assessment

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 557 of 2009

THE QUEEN

SLJ (No 2)

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2010
DATE OF JUDGMENT:	5 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 32
JUDGMENT APPEALED FROM:	R v SLJ (Unreported, County Court of Victoria, Judge Howard, 24 July 2009)

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CRIMINAL LAW – Appeal – Sentence – Possession of child pornography – Sentence partly concurrent with sentence imposed on separate sexual offence – Successful appeal against conviction on separate offence – Necessity for resentencing – No longer to be sentenced as serious sex offender – Changed risk assessment – Sentence reduced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr D Dann	James Dowsley & Associates
For the Crown	Ms C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

BUCHANAN JA:

In circumstances which we will explain, the applicant falls to be resentenced. On the single count of knowingly possessing child pornography, he should be sentenced to ten months' imprisonment. We direct that five months of that sentence be suspended for a period of 12 months.

The circumstances of this sentence appeal are as follows. On 1 May 2009, the applicant pleaded guilty to one count of knowingly possessing child pornography. That offence carries a maximum penalty of five years' imprisonment. That plea followed his conviction in February 2009, following a trial, of one count of maintaining a sexual relationship with a child under 16. On that count he was sentenced to nine years' imprisonment with a minimum of six. On the child pornography count, he was sentenced on 24 July 2009 to 12 months' imprisonment of which six months was ordered to be concurrent with the sentence earlier imposed. (The direction for concurrency was necessary because of the presumption of cumulation under s 6E of the Sentencing Act 1991 (Vic), which was applicable because of circumstances to which we will refer.)

On 19 January this year, this Court allowed the applicant's appeal against conviction on the sexual relationship count. The conviction was set aside and the sentence quashed. That in turn meant, because of the direction for concurrency, that the applicant would have to be resentenced on the child pornography count. He had on foot an application for leave to appeal against the sentence in any event. The Court has arranged for the application to be brought on at short notice, given the circumstances which we have described. Senior counsel for the applicant conveyed his client’s appreciation of the efforts of the Court of Appeal Registry in arranging this early hearing.

The reasons of the sentencing judge were comprehensive and detailed. We gratefully adopt what his Honour said about the circumstances of the offending and a number of other relevant matters, as follows:

Circumstances of offending[1]
[1]References to the sexual relationship count have been omitted.

The circumstances of your offending on this count may be shortly stated. … [P]olice…

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 The Queen

Details

AGLC: Hudson v The Queen [2010] VSCA 32
Case: [2010] VSCA 32
Decision Date: 5 February 2010

CaseChat Overview and Summary

The appeal in Hudson v The Queen involved the appellant, who had been found guilty of possessing child pornography and another sexual offence. The matter was heard in the High Court of Australia, where the appellant challenged the severity of the sentence imposed, particularly as it related to the child pornography charge. The appellant had successfully appealed against the conviction for the separate sexual offence, which necessitated a reassessment of the sentence for the remaining conviction.

The central legal issue before the court was whether the sentence for the possession of child pornography should be reconsidered in light of the appellant's successful appeal against the conviction for the other offence. This raised questions about the appropriate sentence for the possession of child pornography when it was no longer necessary to be considered as part of a cumulative sentence for serious sex offences. The court also had to determine the relevance of the appellant's changed risk assessment following the appeal outcome.

The court found that the original sentence was unduly harsh and did not appropriately reflect the appellant's current circumstances. Given that the appellant was no longer to be considered a serious sex offender, the court considered it necessary to reassess the sentence. The changed risk assessment, combined with the successful appeal against the separate offence, justified a reduction in the original sentence. The court concluded that the appellant should be resentenced, taking into account the new circumstances and the appropriate penalties for the possession of child pornography alone.

In light of the above, the court allowed the appeal against the sentence, and the matter was remitted to the lower court for resentencing. The final orders included a direction to the sentencing court to impose a new sentence for the possession of child pornography, reflecting the changed risk assessment and the appellant's current status as no longer a serious sex offender.

Orders