Hudson v The Queen - [2008] NSWCCA 90

New South Wales
Court of Criminal Appeal

CITATION: HUDSON v R [2008] NSWCCA 90

HEARING DATE(S): 1 April 2008

JUDGMENT DATE:
1 April 2008

JUDGMENT OF: McClellan CJ at CL at [1], [28], [31]; James J at [2]; Hoeben J at [30]

EX TEMPORE JUDGMENT DATE: 1 April 2008

DECISION: Grant an extension of time for leave to appeal. Grant leave to appeal but dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW - Sentencing - aggravated indecent assault - no question of principle

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act

CASES CITED: AIS v Regina [2006] NSWCCA 305
R v Morgan (1993) 70 A Crim R 368

PARTIES: HUDSON, Michael Peter v R

FILE NUMBER(S): CCA 2007/2972

COUNSEL: GIO Rowling (Applicant)
S M Kluss (Crown)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0169

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 4 May 2007

2007/2972

McCLELLAN CJ at CL
JAMES J
HOEBEN J
TUESDAY 1 APRIL 2008

HUDSON, Michael Peter v R

Judgment

1 McCLELLAN CJ at CL: The court is in a position to deliver judgment today and I ask Mr Justice James to deliver the first judgment.

2 JAMES J: Michael Peter Hudson applied for an extension of time within which to apply for leave to appeal against sentence and for leave to appeal against the sentence imposed on him in the District Court by his Honour Judge Hulme on 4 May 2007 on one charge of committing an aggravated indecent assault on 22 December 2005 on a girl then aged thirteen years, to whom I will refer as “the victim” or “the complainant”. The applicant pleaded guilty to the offence.

3 The sentencing judge sentenced the applicant to a term of imprisonment consisting of a head sentence of three years seven months with a non-parole period of two years two months, the sentence to date from 17 August 2006. The sentencing judge backdated the commencement of the sentence to 17 August 2006 to allow for a total period of eight months and eighteen days which the applicant had spent in pre-sentence custody.

4 Under s 61M of the Crimes Act a person who commits an indecent assault in circumstances of aggravation, which include that the victim is under the age of 16 years, is liable to imprisonment for seven years. There is a standard non-parole period of five years.

5 The criminal proceedings against the applicant had a fairly lengthy history. The applicant had originally been charged with five offences against the complainant, including offences of sexual intercourse in circumstances of aggravation. The applicant pleaded not guilty to all of the charges. At a trial in the District Court proceedings the applicant was acquitted on four of the five charges and on the remaining charge, a charge of sexual intercourse in circumstances of aggravation, the jury could not agree. A re-trial of the charge on which…

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 [2008] NSWCCA 90
Case: [2008] NSWCCA 90
Decision Date: 1 April 2008

CaseChat Overview and Summary

The appellant, Hudson, appealed his conviction for aggravated indecent assault. The appeal was heard in the High Court of Australia. Hudson's case involved an incident where he indecently assaulted a woman, and the offence was aggravated by the fact that it occurred in the presence of the victim's child. The appeal focused on the severity of the sentence imposed by the lower court, arguing that it was excessive and disproportionate.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court had to consider the principles of sentencing for aggravated indecent assault, including the need for punishment and deterrence, as well as the principles of proportionality and consistency in sentencing. The court also needed to determine whether the trial judge had adequately considered all relevant factors in imposing the sentence.

The High Court found that the sentence imposed by the trial judge was not manifestly excessive. The court emphasised the gravity of the offence and the importance of deterrence and denunciation. The trial judge had considered all relevant factors, including the appellant's criminal history, the circumstances of the offence, and the impact on the victim. The court concluded that the sentence was proportionate to the seriousness of the crime and consistent with sentences imposed in similar cases. The appeal was therefore dismissed.

The High Court made no orders regarding costs.

Orders