| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0139 |
| ANDREW HUTCHISON | Applicant |
| V | |
| THE KING | Respondent |
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| JUDGES: | BEACH and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 September 2022 |
| DATE OF JUDGMENT: | 6 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 217 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1267 (Judge Hampel) |
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CRIMINAL LAW – Appeal against sentence – Using a carriage service to access child pornography material (Charge 1) – Using a carriage service to access child abuse material (Charge 2) – Possessing child abuse material obtained or accessed using a carriage service (Charge 3) – Whether total effective sentence is manifestly excessive – Whether individual sentences are manifestly excessive – Whether cumulation of sentences is manifestly excessive – Whether sentencing judge undervalued applicant’s family hardship – Whether sentencing judge erred in rejecting the fact that applicant did not purchase pornographic material as a mitigating factor – Sentences not manifestly excessive – Appeal dismissed.
Heathcote (a pseudonym) v The Queen (2014) VSCA 37, Totaan v The Queen [2022] NSWCCA 75 considered.
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| Counsel | |||
| Applicants: | Dr Michael Fitzgerald | ||
| Respondent: | Ms K Breckweg | ||
Solicitors | |||
| Applicants: | Doogue + George | ||
| Respondent: | Commonwealth Director of Public Prosecutions | ||
BEACH JA
T FORREST JA:
On 5 March 2021, the appellant pleaded guilty to one charge of using a carriage service to access child pornography material,[1] one charge of using a carriage service to access child abuse material,[2] and one charge of possessing child abuse material obtained or accessed using a carriage service.[3]
[1]Criminal code (Cth), s 474.19(1). The maximum penalty was 15 years’ imprisonment. This offence was repealed on 20 September 2019 by virtue of the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) and replaced with the offence of using a carriage service to access child abuse material contrary to s 474.22(1) of the Crimes Act 1914 (Cth) with effect from 21 September 2019.
[2]Criminal Code (Cth), s 474.22(1). The maximum penalty is 15 years’ imprisonment.
[3]Criminal Code (Cth), s 474.22A(1). The maximum penalty is 15 years’ imprisonment.
The appellant was arrested and granted bail on 20 August 2020. On 2 September 2021, following a plea in mitigation, the judge sentenced the appellant according to the following table:
Charge
Offence
Sentence
Commencement
1 Using a carriage service to access child pornography material 3 years 2 January 2022 2 Using a carriage service to access child abuse material 1 year 2 September 2021 3 Possessing child abuse material obtained or accessed using a carriage service 4 years 2 September 2022 Total Effective Sentence:
5 years’ imprisonment
Non-Parole Period:
3 years
Pre-sentence Detention:
Nil
Section 6AAA Statement:
7 years’ imprisonment with 5 years non-parole
Other orders
Declared as registrable for period of 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004 and forfeiture orders.
On 12 May 2022 the appellant was granted leave to appeal on a single ground of appeal. It is expressed as follows:
The individual sentences on the charges as well…
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- AGLC
- Hutchison v The King [2022] VSCA 217
- Case
- [2022] VSCA 217
- Decision Date
CaseChat Overview and Summary
The High Court examined whether the total effective sentence imposed by the lower court was manifestly excessive, taking into account the principles set forth in Heathcote v The Queen and Totaan v The Queen. The Court considered the severity and nature of the crimes committed, the need for deterrence and denunciation, and the mitigating factors presented. The Court concluded that the total effective sentence was not manifestly excessive, as it was proportionate to the gravity of the offences and took into account the relevant mitigating factors. The individual sentences and their cumulation were also found to be proportionate to the crimes committed.
Given the findings, the Court dismissed the appeal. The sentences imposed by the lower court were affirmed as appropriate and not manifestly excessive. The Court upheld the sentencing judge's assessment of the mitigating factors and family hardship, finding no error in the judge's consideration of these aspects.
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