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Hurst v The King

Hurst v The King

Case [2023] VSCA 286 28 November 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0151

JOEL JAMES HURST	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023
DATE OF JUDGMENT:	28 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 286
JUDGMENT APPEALED FROM:	DPP v Hurst (County Court of Victoria, Judge Smallwood, 21 September 2022)

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CRIMINAL LAW – Appeal – Sentence – Trafficking firearms – Trafficking drug of dependence – Handling stolen goods – Applicant subject to abuse in childhood – Whether judge reduced moral culpability – Bugmy v The Queen (2013) 249 CLR 571 – Moral culpability reduced in general way – Childhood abuse not connected to offending in specific way – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Whether involvement of covert police operatives warranted reduction in sentence – Whether cumulation excessive – Leave to appeal refused.

Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; DPP v Kumas [2021] VSCA 215; Ellis v The King [2021] VSCA 229; Kruger v The King [2023] VSCA 149; Lowndes v The Queen (1999) 195 CLR 665; Newton v The King [2023] VSCA 22; Sabbatucci v The Queen [2021] VSCA 340.

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Counsel
Applicant:		Mr P Pathmaraj
Respondent:		Ms MA Mahady
Solicitors
Applicant:	Sarah Pratt & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
WHELAN JA:

On 19 September 2022, the applicant, Joel James Hurst, now aged 39, pleaded guilty in the County Court to 14 charges on indictment, and three related summary charges. On 21 September 2022, he was sentenced as follows:[1]
[1]Extracted from DPP v Hurst (County Court of Victoria, Judge Smallwood, 21 September 2022), [58]–[60] (‘Reasons’).

Charge

Offence

Maximum

Sentence

Cumulation

1

Handle stolen goods[2]

15 years imprisonment

18 months imprisonment

6 months

2–9

Prohibited person possess firearm[3]

10 years imprisonment

24 months imprisonment (aggregate)

6 months

10

Prohibited person possess silencer[4]

8 years imprisonment

12 months imprisonment

6 months

11

Disposal of traffickable quantity of firearms[5]

10 years imprisonment

4 years imprisonment

Base

12

Traffic in drug of dependence[6]

15 years imprisonment

3 years imprisonment

18 months

13

Handle stolen goods

15 years imprisonment

18 months imprisonment

Nil

14

Fail to comply with order to provide information or assistance[7]

5 years imprisonment

3 months imprisonment

Nil

Related summary offences

9

Possess ammunition without a licence[8]

40 penalty units

Convicted and discharged

10

Dispose of ammunition to unlicensed person[9]

12 months imprisonment

11

Commit an indictable offence whilst on bail[10]

3 months imprisonment

Total effective sentence

7 years

Non-parole period

4 years 6 months

Pre-sentence detention declared pursuant to Sentencing Act 1991 s 18(1)

300 days

Section 6AAA[11] statement

Total effective sentence of 11 years with a non-parole period of 8 years

Other relevant orders

Forfeiture and disposal of property

[2]Contrary to s 88 of the Crimes Act 1958.
[3]Contrary to s…

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 Hurst v The King

Details

AGLC: Hurst v The King [2023] VSCA 286
Case: [2023] VSCA 286
Decision Date: 28 November 2023

CaseChat Overview and Summary

In Hurst v The King, the applicant appealed against a sentence imposed for trafficking firearms, trafficking a drug of dependence, and handling stolen goods. The matter was heard in the Victorian Court of Appeal. The court was required to determine whether the sentence imposed was manifestly excessive and if the applicant's involvement with covert police operatives warranted a reduction in the sentence. Additionally, the court had to consider whether the cumulative sentence was excessive.

The court found that the judge had not reduced the applicant's moral culpability by taking into account the applicant's history of childhood abuse. The court held that while the applicant's history of abuse was relevant, it did not specifically connect to the offending in a way that reduced the moral culpability. The court concluded that the sentence was not manifestly excessive and that the involvement with covert police operatives did not warrant a reduction in the sentence. The court also found that the cumulative sentence was not excessive.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was proportionate to the seriousness of the offences and that the mitigating factors had already been taken into account by the sentencing judge. The applicant was ordered to serve the original sentence imposed by the trial judge.

Orders