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Shane Hodgson v The Queen

Shane Hodgson v The Queen

Case [2021] VSCA 73 26 March 2021

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0188

SHANE HODGSON	Applicant
V
THE QUEEN	Respondent

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JUDGES:	BEACH, EMERTON and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2021
DATE OF JUDGMENT:	26 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 73
JUDGMENT APPEALED FROM:	[2019] VCC 1441 (Judge Lacava)

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CRIMINAL LAW – Appeal – Conviction – Applicant and co-offender convicted of 13 charges of theft, aggravated burglary, causing injury intentionally, common law assault, false imprisonment – Applicant also convicted of arson – Whether guilty verdicts unreasonable or cannot be supported having regard to the evidence – Circumstantial case including mobile phone, vehicle, eyewitness, DNA and firearm evidence – Evidence not to be assessed in piecemeal fashion – Evidence against co-offender compelling – Evidence established that applicant linked to co-offender – Leave to appeal conviction refused – Criminal Procedure Act 2009 s 276 – R v Hillier (2007) 228 CLR 618 applied.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 9 years 6 months’ imprisonment with non-parole period of 6 years 6 months – Whether judge erred in exercise of discretion to have regard to time spent serving sentence for other offending – Whether judge erred in application of principle of totality – Whether individual sentences and order for cumulation offend principle of parity having regard to co-offender’s sentence – Whether judge erred in failing to moderate general deterrence – Whether sentence on charge of aggravated burglary, orders for cumulation and non-parole period are manifestly excessive – Leave to appeal sentence refused – R v Renzella [1997] 2 VR 288 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Stary Norton Halphen
For the Respondent	Mr C Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
EMERTON JA
SIFRIS JA:

Introduction

On 12 July 2018, Shane Hodgson (the ‘applicant’) and Andreas Sianas (the ‘co-offender’) were convicted in the County Court by the jury empanelled on their trial on 13 charges: theft, aggravated burglary, two charges of intentionally causing injury, three charges of common law assault and five charges of false imprisonment. The applicant was also convicted of one charge of arson.

The applicant’s and co-offender’s pleas were heard on 27 June 2019 and they were both sentenced on 3 September 2019 as follows.

The applicant

Charge on Indictment Offence Legislation Maximum Sentence Cumulation

1.     Theft s 74 Crimes Act 1958 10 years 6 months

2.     Aggravated Burglary s 77 Crimes Act 1958 25 years 6 years Base

3.     Causing injury intentionally s 18 Crimes Act 1958 10 years 2 years 1 year

4.     Common law Assault Contrary to Common Law 5 years Dismissed

5.     Common law Assault Contrary to Common Law 5 years Dismissed

6.     Common law Assault Contrary to Common Law 5 years Dismissed

7.     Common law Assault Contrary to Common Law 5 years Dismissed

8.     False Imprisonment Contrary to Common Law 10 years 1 year

9.     False Imprisonment Contrary to Common Law 10 years 1 year

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 Shane Hodgson v The Queen

Details

AGLC: Shane Hodgson v The Queen [2021] VSCA 73
Case: [2021] VSCA 73
Decision Date: 26 March 2021

CaseChat Overview and Summary

In the case of Shane Hodgson v The Queen, the applicant appealed against his conviction and sentence. The applicant and his co-offender were convicted on 13 charges including theft, aggravated burglary, causing injury intentionally, common law assault, false imprisonment, and the applicant was also convicted of arson. The applicant sought to appeal both his conviction and sentence, arguing that the guilty verdicts were unreasonable and that the sentence was manifestly excessive.

The legal issues before the court were whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence, and whether the sentence was manifestly excessive. The court considered whether the evidence against the applicant was compelling and whether the principle of totality and parity had been properly applied in the sentencing. The court also considered whether the general deterrence principle had been properly applied in the sentencing.

The court found that the evidence against the applicant was compelling and established a link between the applicant and the co-offender. The court rejected the applicant’s argument that the evidence should be assessed in a piecemeal fashion and held that the guilty verdicts were properly based on the evidence as a whole. The court found that the sentence was not manifestly excessive and that the judge had properly exercised his discretion in having regard to the time spent serving sentence for other offending and in applying the principle of totality. The court rejected the applicant’s argument that the individual sentences and order for cumulation offended the principle of parity and held that the sentence on the charge of aggravated burglary, orders for cumulation and non-parole period were not manifestly excessive.

The court refused leave to appeal both the conviction and the sentence. The court applied the principles set out in R v Hillier (2007) 228 CLR 618 in relation to the conviction and R v Renzella [1997] 2 VR 288 in relation to the sentence.

Orders