Hudson v The Queen - [2013] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0016

SHANNON HUDSON

THE QUEEN

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JUDGES:	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2013
DATE OF JUDGMENT:	20 August 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 218
JUDGMENT APPEALED FROM:	[2012] VSC 592 (King J)	1^st revision 22 August 2013, para 1 2^nd revision 23 August 2013, paras 3, 4, 18

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Sustained, unprovoked attack in company in a public place – Youthful offender – Previous convictions for violent offences – Parity – Significant differences between co-offenders - Head sentence of 10 years and 6 months’ imprisonment not manifestly excessive – Non-parole period reduced from 8 years to 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Greg Thomas, Barrister & Solicitor
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA

The appellant was arraigned in the Supreme Court and pleaded guilty to an indictment containing a charge of intentionally causing serious injury.

After a plea the appellant was sentenced to be imprisoned for a term of 10 years and 6 months, with a minimum term of 8 years’ imprisonment. The sentence was ordered to be served concurrently with a sentence the appellant was currently undergoing. At the date on which the sentence was imposed the appellant had served some 5 months of a 20 months’ sentence, with a non-parole period of 11 months.

The victim of the offence was one Minh Duong, a 21 year old Vietnamese university student, who was walking home from a part-time job in the evening of 27 June 2012, when he was attacked by the appellant, Wayne O’Brien and another.

The offenders had spent the day drinking. One of them ran across the road and struck the victim in the face, knocking off his glasses. The victim fell across a small brick fence adjoining a garden. The offenders repeatedly kicked and punched the victim while he was lying across the fence. At one point, while one of the offenders held the victim’s arm down and pinned him to the ground, the other offenders punched and kicked him to the head and his left arm.

The appellant demanded that the victim hand over his mobile phone, which had fallen to the ground. The victim attempted to find the phone so that he could placate the appellant. Mr Duong screamed and begged for mercy. Despite this, the offenders continued their assault. Mr O’Brien was also making racist comments.

Mr Duong made several attempts to get away. He was terrified, believing he was to be beaten to death. He repeatedly asked what the offenders were doing and why they were acting as they were. They did not reply but continued to rain blows upon him. At one point one of the offenders struck the victim with a sharp weapon, causing stab wounds to his arm and lower…

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 [2013] VSCA 218
Case: [2013] VSCA 218
Decision Date: 20 August 2013

CaseChat Overview and Summary

The appellant, Hudson, was convicted of intentionally causing serious injury to a person, and the case came before the court for sentencing. The incident involved a sustained, unprovoked attack in a public place, while the appellant was in the company of others. Hudson, a youthful offender with previous convictions for violent offences, faced the court for sentencing. The legal issues before the court were to determine an appropriate sentence considering the gravity of the offence, the appellant's history of violence, and the need for parity with co-offenders. Additionally, the court needed to evaluate the appropriateness of the head sentence and the non-parole period.

The court considered the significant differences between the appellant and his co-offenders, and the impact of these differences on sentencing. In assessing the head sentence of 10 years and 6 months' imprisonment, the court found it not to be manifestly excessive, given the nature and circumstances of the offence. The court also took into account the need for parity with co-offenders, and the appellant's history of violence. Ultimately, the court determined that the non-parole period of 8 years was excessive and reduced it to 7 years, while maintaining the overall sentence.

The court's decision was based on a comprehensive assessment of the appellant's criminal history, the nature of the offence, and the need for parity with co-offenders. The final orders of the court included the imposition of a sentence of 10 years and 6 months' imprisonment, with a non-parole period of 7 years. The court's decision demonstrated a careful balancing of the various factors involved in sentencing, and provided a clear rationale for the outcome.

Orders