Hutchison v The King - [2022] VSCA 217

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 This offence was repealed on 20 September 2019 by virtue of the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) and replaced with the offence of using a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…

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 Hutchison v The King

Details

AGLC: Hutchison v The King [2022] VSCA 217
Case: [2022] VSCA 217
Decision Date: 6 October 2022

CaseChat Overview and Summary

The applicant, Mr Hutchison, appealed against his sentence for using a carriage service to access child pornography and abuse material, and for possessing such material. The appeal was heard in the High Court of Australia. The crux of the appeal was the contention that the total effective sentence was manifestly excessive, as were the individual sentences, and that the cumulation of the sentences was also manifestly excessive. Additionally, Mr Hutchison argued that the sentencing judge had undervalued the family hardship he experienced and had erred in rejecting the fact that he did not purchase the pornographic material as a mitigating factor.

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.

Orders