Hudson v The Queen - [2001] TASSC 72

[2001] TASSC 72

CITATION: Hudson v R [2001] TASSC 72

PARTIES:  HUDSON, Sean Timothy
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 67/2000
DELIVERED ON:  4 July 2001
DELIVERED AT:  Hobart
HEARING DATE:  22 May 2001
JUDGMENT OF:  Cox CJ, Slicer J and Evans J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Disparity - Whether, where significant differences in co-offender's circumstances existed, the disparity in sentences was still manifestly excessive - Whether due discrimination made where other things not equal.
Lowe v R (1984) 154 CLR 606; R v Kite (1971) 2 SASR 94, followed.

Aust Dig Criminal law [1005]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  C J Rheinberger
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 72
Number of paragraphs: 14

Serial No 72/2001
File No CCA 67/2000

SEAN TIMOTHY HUDSON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
SLICER J
EVANS J
4 July 2001

Order of the Court:

Appeal allowed.

Sentence of four years' imprisonment from 28 August 2000 quashed and sentence of four years' imprisonment from 4 December 1999 substituted therefor.

Serial No 72/2001
File No CCA 67/2000

SEAN TIMOTHY HUDSON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
4 July 2001

The appellant's sole ground of appeal is that he received an unjustifiably disparate sentence from that imposed on his co-offender on their conviction after trial for aggravated armed robbery. The two offenders had placed improvised masks over their faces and entered a newsagency at Ravenswood on 4 December 1999 where the proprietor and his staff were robbed of $7,240 at knifepoint. The knife was a large kitchen knife and was wielded by one of them, although the learned trial judge was unable to determine which of the two had held it. A threat was made to use it and it was waved around. It brushed against the hand of one of the employees, but did not injure him. The learned trial judge described the offenders' actions as follows:

"What you did was dangerous, terrifying for the men you robbed, the newsagent's wife and probably also a customer in the store, and stupid. Your getaway arrangements were particularly stupid. You fled on foot in broad daylight, and were followed by the newsagent's wife and a passing truck driver. As a result, you were located and arrested. All but $210 of the stolen money was recovered and eventually returned to the newsagent.
The men you robbed have all received psychological counselling. The newsagent lost the use of his money for some months, and suffered financially as a result. He has decided to take greater precautions for security at his shop, and some of these are costing him money.
You both have appalling records. Neither of you has shown any remorse. Substantial prison sentences are therefore…

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 [2001] TASSC 72
Case: [2001] TASSC 72
Decision Date: 4 July 2001

CaseChat Overview and Summary

Sean Timothy Hudson appealed against his sentence of four years' imprisonment for aggravated armed robbery, arguing that it was unjustifiably disparate when compared to the sentence of his co-offender. The Court of Criminal Appeal in Tasmania considered this appeal and found that the disparity in sentences warranted the intervention of the appellate court. The court recognised that while there were justified reasons for different sentences due to the differing backgrounds and criminal records of the offenders, the disparity in this case was still excessive and called for the intervention of an appellate court in the interests of justice. The court substituted a sentence of four years' imprisonment backdated to the date when the appellant first went into custody, which reduced his effective head sentence by almost nine months and made him eligible for parole earlier than under the original sentence.

The court considered the principles of disparity in sentencing and recognised that there is no rule of law requiring co-offenders to be given the same sentence for the same offence, even if no distinction can be drawn between them. However, any difference in sentences ought not to give rise to a justifiable sense of grievance or the appearance that justice has not been done. The court found that the difference between the sentences imposed on the appellant and his co-offender was indeed manifestly excessive and called for the intervention of an appellate court in the interests of justice. The court substituted a sentence of four years' imprisonment backdated to the date when the appellant first went into custody, which reduced his effective head sentence by almost nine months and made him eligible for parole earlier than under the original sentence.

Orders