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R v Hoschke

R v Hoschke

Case [2001] NSWCCA 317 21 August 2001

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CITATION: R v Hoschke [2001] NSWCCA 317

FILE NUMBER(S): CCA 60154/00

HEARING DATE(S): 21/8/01

JUDGMENT DATE:
21 August 2001

PARTIES :

Regina
Andrew Peter Hoschke

JUDGMENT OF: Beazley JA at 1,37,39; Wood CJ at CL at 38; Carruthers AJ at 2

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) : 00/11/0808

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : R D Cogswell SC (Crown)
B Baker (Crown)
J Fliece (Respondent)

SOLICITORS: S E O'Connor (Crown)
Ross Hill and Associates (Respondent)

CATCHWORDS: Sentencing - Crown appeal - alleged inadequacy of sentence - young offender - robbery in company - sentencing judge finds respondent half as culpable as co-offender - whether exceptional cricumstances within the meaning of Henry's Case.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Children (Detention Centres) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912
Justices Act 1902

CASES CITED:
Regina v Blackman and Waters [2001] NSWCCA 121
Regina v Govinden (1999) 106 A Crim R 314.
Regina v Henry (1999) 46 NSWLR 346

DECISION: 1. Appeal Allowed;; 2. Sentence of Shadbolt DCJ set aside;; 3. Re-sentence: imprisonment for 2 years and 9 months, to begin 24 February 2001 and to expire 23 November 2003.; 4. Non Parole period of 16 months, to begin 24 February 2001 and to expire 23 June 2002.; 5. Prisoner to serve this sentence in a Juvenile Detention Centre, in accordance with s 19 Children (Criminal Proceedings) Act 1987.; Recommendation: That the Minister give consideration to making an order under s 10 of the Children (Detention Centres) Act 1987, for the transfer of the prisoner from the present place of custody to a Juvenile Detention Centre for the duration of the sentence imposed on 24 May 2001 at Windsor Local Court.

- 13 -IN THE COURT OF

CRIMINAL APPEAL

60154/01

Beazley JA

Wood CJ at CL

Carruthers AJ

Tuesday 21 August 2001

Regina v Andrew Peter Hoschke

JUDGMENT

1 BEAZLEY JA: I will ask Mr Justice Carruthers to give the first judgment.

2 CARRUTHERS AJ: The Director of Public Prosecutions appeals to this Court pursuant to s 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of a sentence imposed upon the respondent, Andrew Peter Hoschke, by his Honour Shadbolt DCJ at the Sydney District Court on 15 February 2001, for one count of robbery in company under s 97(1) of the Crimes Act 1900, which offence carries a maximum penalty of twenty years imprisonment.

3 The offence was committed on 3 July 2000, on which date the respondent was arrested and taken into custody. The respondent was then 18 years of age, however he remained in adult custody until he was granted conditional bail on 18 September 2000. This represented a period of 78 days in full time custody.

4 The respondent pleaded guilty to the offence on 24 October 2000 at the Downing Centre Local Court and was committed to the District Court for sentence pursuant to s 51A of the Justices Act

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 R v Hoschke

Details

AGLC: R v Hoschke [2001] NSWCCA 317
Case: [2001] NSWCCA 317
Decision Date: 21 August 2001

CaseChat Overview and Summary

The case of R v Hoschke involved the Crown appealing the sentence imposed on the respondent, Hoschke, for his involvement in a robbery committed in company. The dispute centred on the adequacy of the sentence, particularly whether it was too lenient given the circumstances and Hoschke's relative culpability compared to his co-offender. The appeal was heard in the High Court of Australia, which was tasked with determining whether the original sentencing judge had erred in his assessment of Hoschke's culpability and whether there were exceptional circumstances that warranted a more severe sentence.

The central legal issue before the court was whether the original sentence was inadequate, and if so, whether exceptional circumstances existed that justified the Crown's appeal. Specifically, the court had to consider the sentencing judge's finding that Hoschke was only half as culpable as his co-offender and whether this assessment was consistent with the principles outlined in Henry's Case. This case established that a Crown appeal on the ground of inadequacy of sentence could only be upheld if the sentence was shockingly inadequate or if there were exceptional circumstances that made the sentence unjust.

The High Court found that the sentencing judge had erred in his assessment of Hoschke's culpability and that the sentence imposed was indeed inadequate. The court held that the sentencing judge had not properly considered the totality of Hoschke's criminal conduct and his role in the offence. Furthermore, the court determined that there were exceptional circumstances present, as the sentence did not adequately reflect the seriousness of the crime or provide sufficient deterrence. Consequently, the High Court allowed the Crown's appeal, quashed the original sentence, and remitted the matter to the sentencing court for re-sentencing.

The final orders of the High Court were that the appeal be allowed, the original sentence quashed, and the matter remitted to the sentencing court for re-sentencing. The court did not specify the nature of the new sentence but emphasised the need for it to appropriately reflect the gravity of the offence and the principles of sentencing outlined in Henry's Case.

Orders