Solicitors:
Blair Criminal Lawyers
Solicitor for Public Prosecutions
File Number(s): 2011/2838222013/65234
Decision under appeal Court or tribunal: District Court
Date of Decision: 23 August 2013; 22 May 2014
Before: King SC DCJ; Graham ADCJ
File Number(s): 2011/283822; 2013/65234
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Judgment
BEAZLEY P: I agree with the reasons of R A Hulme J and with the orders he proposes.
R A HULME J: Jake Hudson (the applicant) seeks leave to appeal in respect of a sentence imposed on him in the District Court on 23 August 2013. His Honour Judge King SC imposed an aggregate term of imprisonment of 6 years with a non-parole period of 4 years.
In the same sentence proceedings his Honour imposed upon the applicant's co-offender, Jason Robert Carroll, a sentence of 6 years with a non-parole period of 4 years 6 months. His Honour imposed a lesser non-parole period in the applicant's case on account of his relative youth and the judge's assessment of his need for a longer period of supervision on parole.
Mr Hudson also brings an application for leave to appeal against a sentence imposed in an unrelated matter. I will come back to that.
The offences presently under consideration were committed on 18 August 2011 and comprised two counts of robbery in company, one of stealing in a dwelling, and one of dishonestly obtaining property by deception. The offences are contrary to ss 97(1), 148 and 192E(1)(a) of the Crimes Act 1900 (NSW) and have maximum penalties of imprisonment for 20 years, 7 years and 10 years respectively. King DCJ said that if not for the fact that he was imposing an aggregate sentence, he would have imposed individual sentences of 4 years 3 months; 4 years; 1 year 6 months; and 1 year 6 months respectively.
Hudson v R [2015] NSWCCA 64 | Case summary | Zoe
The offences were committed in what is commonly referred to as a "home invasion" at a home unit in Maroubra which was occupied by three men. The applicant and his co-offender physically assaulted two of the men and threatened to do serious harm to them with knives and an object that appeared to be a gun. Naturally enough, the victims were terrified and feared for their lives. The applicant and Carroll stole various items of property and later used a bank debit card stolen from one of the victims at a nearby convenience store to "buy" cigarettes and a prepaid mobile phone voucher.
There are two proposed grounds of appeal. The first involves a contention that the applicant has a legitimate sense of grievance arising from a comparison of the sentence he received with that imposed upon the co-offender. The judge found no material difference in their relative culpability for the offences. He carefully assessed their respective subjective circumstances and found that some factors favoured one offender more than the other. In the end, however, the differential in the non-parole periods was the only matter the judge felt was warranted. I cannot see that this assessment was not open to the judge in the exercise of his discretion; a discretion which this Court must respect. Moreover, I note that no submission was made to his Honour that there should be any differentiation in the sentences imposed upon the two men.
The second ground sought to be raised concerns the fact that between 2 September 2011 (when the applicant was arrested) and 12 February 2013 (when he when he went into custody following his pleas of guilty for the present offences) he had spent three discrete periods in custody in relation to unrelated matters. It was contended that the judge failed to take that fact into account at all, or sufficiently.
The problem in relation to this ground is that it ignores the case advanced by the applicant in the District Court. The judge was asked by his counsel to backdate his sentence to 24 January 2013. The judge backdated it to 8 February 2013. Mr Hudson now argues that there should have been a considerably greater regard given to the time in custody he had spent in relation to the other matters and that there should have been a lesser sentence imposed, a shorter non-parole period, or a greater backdating.
An appeal to this Court is not an opportunity to argue a different case to that advanced in the court below: generally, see Zreika v R [2012] NSWCCA 44 at [75]-[83] (Johnson J). This is especially the case where the issue concerns the manner in which a discretion should be exercised. The submissions made on the applicant's behalf in the District Court were responsible and realistic. They prevailed except to the extent of 16 days of backdating. There is an air of unreality in what is now contended.
Even if any of the errors contended for were found to be established, I am firmly of the view that no lesser sentence was warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW). The applicant committed a serious armed home invasion in which two victims were terrorised and put in genuine fear of sustaining serious injury or worse. It is an easy inference to draw that the psychological impact upon the two victims must have been significant. In my view, the sentencing outcome in the District Court was relatively modest.
Leave to appeal should be refused in respect of this matter.
The other matter before the Court is an application for leave to appeal in respect of a sentence imposed by his Honour Acting Judge Graham in the District Court on 22 May 2014. This concerned an offence of remaining in a building with intent to commit the indictable offence of larceny on 9 August 2011. The offence is contrary to s 114(1)(d) of the Crimes Act and the maximum penalty is imprisonment for 7 years. In sentencing him for that offence, the judge was asked to take into account four offences of damaging motor vehicles and one of stealing from one of the motor vehicles.
This matter involved the applicant and two other men being in the garage of a commercial and apartment complex at Brighton-Le-Sands in the early hours of the morning, breaking into cars in an attempt to steal from them. They succeeded in stealing personal items of value from one of the cars.
The applicant was serving the sentence imposed by King DCJ when he appeared before Graham ADCJ. Senior counsel who appeared for him in the District Court acknowledged that some further time in custody had to be imposed but argued that it should be relatively minimal, having regard to the principle of totality. The judge's response was to impose a sentence of 18 months with a non-parole period of 9 months. He specified the commencement date of the sentence so as to have the non-parole period extend the minimum time Mr Hudson would remain in custody by only 3 months. The parole period of the sentence will be completely subsumed by the parole period of the sentence imposed by King DCJ.
The proposed grounds of appeal in respect of this matter are that the applicant has a justifiable sense of grievance in comparing his sentence with that which was imposed upon a co-offender, Craig Bodeker, and that the sentence is in any event manifestly excessive.
In relation to the latter ground, there is no merit in now arguing that a sentencing outcome that was sought and received in the District Court is erroneously excessive.
The parity ground is baseless for the same reason. It is also baseless when examined on its merits. The co-offender Bodeker was dealt with by a magistrate in the Local Court in respect of offences of entering a building with intent, damaging property and larceny. He received a total of 150 hours of community service and a 12 month good behaviour bond. The key differences between the pair were their criminal histories (Mr Bodeker's history prior to the offending in question was relatively minor and he had not previously been imprisoned) and the fact that Mr Hudson, unlike Mr Bodeker, was serving a significant term of imprisonment which rendered other sentencing options otiose. Graham ADCJ was mindful of the outcome in Mr Bodeker's case and expressed himself as being careful not to impose a sentence that would be "a crushing burden". The practical effect of the sentence imposed upon the applicant is not one that reflects marked disparity.
Leave to appeal should be refused in respect of this matter as well.
It is most unfortunate that these applications have been brought to the Court. Valuable legal aid, prosecution and court resources have been consumed but they are both completely devoid of merit.
The following orders should be made in respect of each application:
1. Leave to appeal refused.
ADAMSON J: I agree with the reasons of R A Hulme J and with the orders his Honour proposes. I only wish to add that it is regrettable that the applicant's hopes have been unjustifiably raised by the conduct of the legal profession.
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Decision last updated: 14 April 2015