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R v Hudson

R v Hudson

Case [2016] SASCFC 60 19 May 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUDSON
[2016] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
19 May 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence. On 14 November 2013, the appellant was charged with the offence of importing a commercial quantity of a border control drug, namely heroin, contrary to section 307.1(1) of the Criminal Code 1995 (Cth). The appellant was in custody on remand for a period of eight months and three days before being released on home detention bail.
On 3 September 2014, following a trial by jury, the appellant was convicted of the offence, bail was revoked and she was taken into custody. On 20 October 2015, the appellant was sentenced to nine years imprisonment backdated to commence on 3 September 2015. The Judge further ordered that the appellant be released on her own recognizance after serving 50 months of the term of imprisonment. It was a condition of the recognizance release order that the appellant be of good behaviour for 24 months.
The appellant contends that the head sentence of nine years imprisonment is manifestly excessive, the recognizance release period of 50 months is manifestly excessive, and that the Judge failed to take into account, or articulate the consideration of, the eight months and three days spent in custody and a little over 13 months spent on home detention bail.
Held per Nicholson J (Parker and Lovell JJ agreeing) allowing the appeal:
1. The Judge erred by not taking into account the time spent in custody on remand between 14 November 2013 and 17 July 2014, being eight months and three days, when setting the head sentence and the recognizance release period.
2. The original sentence is set aside and the appellant is resentenced with a head sentence of eight years imprisonment backdated to commence 3 September 2015. The appellant is to be released after serving three and a half years provided that she enters into a security by way of her own recognizance. The length of the recognizance is to be 24 months, during which the appellant is to be of good behaviour, and the recognizance amount is $500.
Crimes Act 1914 (Cth) s 16A, s 19AB, s 19AC, s 19AHA; Criminal Code 1995 (Cth) s 307.1; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 10, referred to.
R v Franceschini [2015] SASCFC 116, (2015) 123 SASR 396; R v Rowe [2016] SASCFC 33, discussed.

R v HUDSON
[2016] SASCFC 60
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
NICHOLSON J.
Introduction

On 3 September 2015, Deliah Gidget Hudson (the appellant) was found guilty after a trial by jury of the offence of importing a commercial quantity of a border control drug contrary to section 307.1(1) of the Criminal…

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 Hudson

Details

AGLC: R v Hudson [2016] SASCFC 60
Case: [2016] SASCFC 60
Decision Date: 19 May 2016

CaseChat Overview and Summary

The case of *R v Hudson* concerned an appeal against sentence by the applicant, who had pleaded guilty to charges of importing a commercial quantity of a border-controlled drug. The appeal was heard by Nicholson, Parker and Lovell JJ in the Court of Criminal Appeal.

The primary legal issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive, particularly in light of the time the applicant had already spent in custody. The Court was required to consider the appropriate weight to be given to this pre-sentence custody when determining the final sentence.

The Court reasoned that while pre-sentence custody is a significant factor to be taken into account, it does not automatically equate to a reduction in the head sentence by the equivalent period. The sentencing judge had properly considered all relevant factors, including the gravity of the offence, the applicant's personal circumstances, and the need for general deterrence. The Court found that the sentence imposed was not so disproportionate as to be manifestly excessive, and therefore the appeal against sentence was dismissed.

Orders