Hudson v The Queen - [2016] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hudson v R [2016] NSWCCA 30
Hearing dates: 1 March 2016
Decision date: 07 March 2016
Before: Bathurst CJ at [1];
Hall J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – armed robbery – no error in assessment of objective seriousness – offence involved extensive planning – different conclusions reached by sentencing judges of co-offenders does not reveal error – assessment of “well above” the middle of the range open to be made – sentence not manifestly excessive – quoting entire victim impact statement in sentencing remarks did not represent undue regard – inadvertent misstatement of criminal history of no material consequence – lengthy sentence required despite unfortunate upbringing – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 97(2)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Mulato v R [2006] NSWCCA 282
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Millwood [2012] NSWCCA 2
Category: Principal judgment
Parties: Damien Lee Hudson (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms M Avenell (Applicant)
Mr H Baker (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2012/370330
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

9 October 2014

Before:

McLoughlin DCJ

File Number(s):

2012/370330

Judgment

BATHURST CJ: I agree with R A Hulme J.
HALL J: I agree with R A Hulme J.
R A HULME J: Damien Lee Hudson seeks leave to appeal against a sentence of 10 years with a non-parole period of 7 years 6 months imposed upon him in the District Court at Sydney on 9 October 2014 for an offence of robbery whilst armed with a dangerous weapon committed at the Stockton Bowling Club on 26 August 2012.
The offence is contrary to s 97(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years.
Mr Hudson ("the applicant") raises two grounds of appeal, one asserting that the learned sentencing judge erred in assessing the seriousness of the offence and another asserting that the sentence is manifestly excessive.

Facts

The applicant pleaded not guilty but was convicted after a relatively short trial. The facts for the purpose of sentencing were not disputed. The following summary was helpfully provided in the Crown’s written submissions:

“The applicant along with two co-offenders, Peter Laupama and Scott Lynch, planned and carried out an armed robbery on the Stockton Bowling Club where Lynch worked as a barman. They planned for it to take place on the night of an annual charity function when Lynch was on duty. At about 10pm trading ceased, the patrons left and the club was secured. Lynch and another employee, Ms Susan Stirrat, remained behind to empty the poker machines, to count the tills…

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 [2016] NSWCCA 30
Case: [2016] NSWCCA 30
Decision Date: 07 March 2016

CaseChat Overview and Summary

The appellant, Hudson, sought to appeal his sentence for armed robbery, arguing that the trial judge erred in assessing the objective seriousness of the offence and that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge had erred in his assessment of the objective seriousness of the armed robbery and the overall sentence imposed.

The court found that the trial judge had appropriately considered the extensive planning involved in the offence and the significant impact on the victims. The court noted that different conclusions by sentencing judges of co-offenders did not necessarily indicate an error. The assessment of the seriousness of the offence as "well above" the middle of the range was within the permissible bounds. The court also ruled that quoting the entire victim impact statement in the sentencing remarks did not constitute undue regard. An inadvertent misstatement regarding the appellant's criminal history was deemed of no material consequence. The court concluded that a lengthy sentence was warranted despite the appellant's unfortunate upbringing.

Given the comprehensive assessment by the trial judge and the absence of any material errors, the appeal was dismissed. The sentence imposed by the trial court was upheld as appropriate and proportionate to the crime committed.

Orders