Hudson v The Queen - [2015] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hudson v R [2015] NSWCCA 64
Hearing dates: 10 April 2015
Decision date: 10 April 2015
Before: Beazley P at [1];
R A Hulme J at [2];
Adamson J at [22]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – two counts of robbery in company – stealing in a dwelling – dishonestly obtaining property by deception – whether legitimate sense of grievance arising from a comparison of sentence imposed upon co-offender – whether error in failing to take into account other periods of custody served – where applicant seeks to argue different case to that run below – no errors established - no lesser sentence warranted – no merit to appeal – leave refused
CRIMINAL LAW – appeal – appeal against sentence – remain in building with intent to commit larceny – whether legitimate sense of grievance arising from comparison of sentence imposed upon co-offender – whether sentence manifestly excessive - no merit to appeal – leave refused
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Jake Thomas Hudson (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms N Mikhaiel (Hudson)
Mr P Ingram SC (Crown)
Solicitors:
Blair Criminal Lawyers
Solicitor for Public Prosecutions

File Number(s): 2011/2838222013/65234
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

23 August 2013; 22 May 2014

Before:

King SC DCJ; Graham ADCJ

File Number(s):

2011/283822; 2013/65234

Judgment

BEAZLEY P: I agree with the reasons of R A Hulme J and with the orders he proposes.
R A HULME J: Jake Hudson (the applicant) seeks leave to appeal in respect of a sentence imposed on him in the District Court on 23 August 2013. His Honour Judge King SC imposed an aggregate term of imprisonment of 6 years with a non-parole period of 4 years.
In the same sentence proceedings his Honour imposed upon the applicant’s co-offender, Jason Robert Carroll, a sentence of 6 years with a non-parole period of 4 years 6 months. His Honour imposed a lesser non-parole period in the applicant’s case on account of his relative youth and the judge’s assessment of his need for a longer period of supervision on parole.
Mr Hudson also brings an application for leave to appeal against a sentence imposed in an unrelated matter. I will come back to that.
The offences presently under consideration were committed on 18 August 2011 and comprised two counts of robbery in company, one of stealing in a dwelling, and one of dishonestly obtaining property by deception. The offences are contrary to ss 97(1), 148 and 192E(1)(a) of the Crimes Act 1900 (NSW) and have maximum penalties of imprisonment for 20 years, 7 years and 10 years respectively. King DCJ said that if not for the fact that he was imposing an aggregate sentence, he would have imposed individual sentences of 4 years 3 months; 4…

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.

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Details

Case: [2015] NSWCCA 64
Decision Date: 10 April 2015

CaseChat Overview and Summary

The appellant, Hudson, appealed against his sentence for two counts of robbery in company, stealing in a dwelling, and dishonestly obtaining property by deception. The trial judge imposed a sentence of imprisonment, which Hudson deemed manifestly excessive, especially when compared to the sentence given to his co-offender. Hudson argued that the trial judge erred in failing to consider other periods of custody he had served and sought to argue a different case to that which was presented at the trial. The central issue was whether the sentence imposed was manifestly excessive and whether there was an error in not taking into account other periods of custody served.

The court found that there were no errors in the trial judge's sentencing process. The trial judge had properly exercised their discretion in imposing the sentence, taking into account all relevant factors, including the gravity of the offences and the need for deterrence and denunciation. The court rejected Hudson's argument that the sentence was manifestly excessive or that there was a legitimate sense of grievance arising from the comparison with his co-offender's sentence. The court also held that there was no merit in Hudson's argument that the trial judge failed to consider other periods of custody served, as it was not a relevant factor in the sentencing process.

Consequently, the appeal was dismissed, and leave to appeal was refused. The court found no basis for reducing the sentence or altering the outcome of the case. The trial judge's sentencing decision was upheld as being within the proper parameters of judicial discretion.

Orders