R v Hutchison - [2015] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT
CRIMINAL DIVISION

S CR 2014 0092

THE QUEEN

STUART ANGUS HUTCHISON

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JUDGE:	OSBORN JA
WHERE HELD:	Ballarat
DATE OF HEARING:	10 August 2015
DATE OF SENTENCE:	12 August 2015
CASE MAY BE CITED AS:	R v Hutchison
MEDIUM NEUTRAL CITATION:	[2015] VSC 405

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CRIMINAL LAW – Sentence – Attempt to pervert the course of justice – Assisted a friend in aftermath of a known unlawful killing to dispose of the body of deceased.

CRIMINAL LAW – Sentence – Circumstances of offender – Plea of guilty – Did not give evidence against the killer – Remorse shown – Good prospects of rehabilitation – Psychiatric diagnosis relevant to rehabilitation and treatment – Sentenced to 21 months’ imprisonment with two year Community Correction Order with conditions.

CRIMINAL LAW – Sentence – Interaction of ss 11, 18 and 44 of the Sentencing Act 1991 – When Community Correction Order can be imposed in combination with a sentence of imprisonment – Effect of two year time limit on sentence of imprisonment when imposing a Community Correction Order – Power under s 18 to order time spent in custody not to be reckoned as served.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Brown	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Mr J Lavery (10 August 2015) Ms J Swiney (12 August 2015)	Mr M G Wardell

HIS HONOUR:

Stuart Angus Hutchison you have pleaded guilty to the charge of attempt to pervert the course of justice. The essence of your offending is that you assisted Jesse Willis to dispose of and conceal the body of Ricky Ganly shortly after Mr Willis had murdered Mr Ganly early on the morning of 29 April 2013.

The maximum penalty for the offence to which you have pleaded is 25 years’ imprisonment but the offence is one which embraces a wide range of criminal conduct.[1]
[1]R v Rogerson (1992) 174 CLR 268, 280 (Brennan and Toohey JJ).

Because of the wide range of conduct which may be caught by the offence, it is necessary first for me to say something about the objective gravity of your offending.

On the night in question, you were present at the home of your friend, Richard Peters, at Avoca, when Mr Willis came to the house and told you that he was being stood over in relation to weapons and that he was planning to ‘knock’, ie kill, the man who was standing over him. You offered to go with Mr Willis to meet the man who was standing over Mr Willis and tell him to ‘fuck off’. Mr Willis told you that he did not want your help and then left the house. He came back several hours later and told you that he had killed the man who had been standing over him and that he needed help to dispose of the body because his DNA was all over the man’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 R v Hutchison

Details

AGLC: R v Hutchison [2015] VSC 405
Case: [2015] VSC 405
Decision Date: 12 August 2015

CaseChat Overview and Summary

The case of R v Hutchison involved a defendant who assisted a friend in disposing of a body following an unlawful killing. The court was tasked with determining an appropriate sentence for the defendant, who had pleaded guilty to attempting to pervert the course of justice. The defendant's assistance came after the fact, and they did not provide any evidence against the individual responsible for the killing. The court acknowledged the defendant's remorse, prospects of rehabilitation, and a psychiatric diagnosis that was relevant to their rehabilitation and treatment.

The primary legal issue before the court was the determination of an appropriate sentence, taking into account the defendant's actions, plea of guilty, and other mitigating factors. Additionally, the court needed to consider the interaction of sections 11, 18, and 44 of the Sentencing Act 1991, particularly in relation to the imposition of a Community Correction Order in combination with a sentence of imprisonment, and the effect of the two-year time limit on the sentence of imprisonment when imposing such an order.

In delivering the judgment, the court considered the defendant's remorse, prospects for rehabilitation, and psychiatric diagnosis. The court recognised that the defendant had not provided any evidence against the individual responsible for the killing, which was a mitigating factor in their sentencing. The court also noted that the defendant had shown remorse for their actions and had good prospects of rehabilitation. Given these factors, the court sentenced the defendant to 21 months' imprisonment, to be served concurrently with a two-year Community Correction Order with conditions. The court exercised its power under section 18 to order that time spent in custody not be reckoned as time served under the Community Correction Order.

The court's final order was that the defendant be sentenced to 21 months' imprisonment, to be served concurrently with a two-year Community Correction Order with conditions, with time spent in custody not reckoned as time served under the Community Correction Order.

Orders