Hudson, Sean Timothy v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Blow J,Porter J,Wood J
• Judgment Date: 19 December 2012
• Docket Number: CCA 408/2012
• Date: 19 December 2012

Hudson, Sean Timothy

and

State of Tasmania

[2012] TASCCA 14

Blow, Porter and Wood JJ

CCA 408/2012

SUPREME COURT OF TASMANIA

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Parity between co-offenders — Murder — Accessory after the fact and principal offender.

Postiglione v R (1997) 189 CLR 295, followed.

Aust Dig Criminal Law [3521], [3522]

REPRESENTATION:

Counsel:

Appellant: A J Hall

Respondent: J Ransom

Orders of the Court:

Appeal dismissed.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Blow J

19 December 2012

1 This is an appeal against sentence. The appellant, Sean Hudson, and a man named Neville Whiting were jointly charged with murdering a man named Scott Rock in Launceston on or about 29 March 2011. They were tried together before Evans J. Whiting was found guilty of murder. The appellant was found not guilty of murder and not guilty of manslaughter, but guilty of being an accessory after the fact to murder. He was subsequently indicted on a charge of unlawfully assaulting Scott Rock by punching him twice to the jaw. He pleaded guilty to that charge. In relation to the two crimes of assault and being an accessory after the fact to murder, Evans J convicted the appellant, sentenced him to 71/2 years' imprisonment, and ordered that he be eligible for parole after serving 51/2 years of that sentence. This is an appeal from those orders.

2 There are two grounds of appeal, as follows:

‘1 That the sentence of 7 ¹/₂ years imprisonment with a non parole period of 5 ¹/₂ years was manifestly excessive in all the circumstances.

2 That the Learned Justice had no regard or insufficient regard to the principal [sic] of parity compared to the Applicant's co-accused Neville Lindsay Whiting.’

Was the sentence manifestly excessive?

3 On the night of the murder, the appellant and Neville Whiting were visiting a woman named Teena Kelly at her home in Ravenswood. Scott Rock arrived and entered the residence. There was an argument. The events that followed, as recounted by the learned judge in his sentencing comments, were as follows:

‘Scott Rock left the residence and walked away up the road. Sean Hudson followed Scott Rock and they continued to abuse each other. Neville Whiting followed Sean Hudson.

About 150 metres from Teena Kelly's home, Sean Hudson and Scott Rock came together face-to-face. Sean Hudson punched Scott Rock twice to the jaw and, on the case against Sean Hudson, this caused Scott Rock to fall to the ground but not to lose consciousness. Again, on the case against Sean Hudson, at this point he walked away leaving Scott Rock on the ground but, as he did so, Neville Whiting stepped in, stomped on Scott Rock's head three or four times and struck his head with a bag that Scott Rock had been carrying. Inside this bag were about five stubbies of beer contained within the plastic skin that stubbies are sold in.’

4 The assault charge relates to the appellant punching Mr Rock twice to the jaw. Mr Rock died as a result of the conduct of Neville Whiting, who was said to have stomped on his head three or four times and to have struck his head with the bag of stubbies. The appellant was not criminally responsible for that conduct. He and Whiting left Mr Rock and returned to Teena Kelly's residence. They left Mr Rock lying on the road. A short while later, the appellant went back to check on him, concluded that he was dead, and returned to Teena Kelly's residence. The events that followed, as described by the learned sentencing judge, were as follows:

‘Thereafter, with Neville Whiting driving Teena Kelly's station wagon, the defendants went back to Scott Rock's body. They loaded the body into the station wagon on a tarpaulin and drove to the nearby residence of Scott Keating. …

At Scott Keating's residence both defendants made comments about that which had occurred in the presence of Scott Keating and Ricky Lockwood, who had been called to that residence to drive Scott Keating to the 24 hour shop to purchase alcohol. Before going to the 24 hour shop, Scott Keating and Ricky Lockwood observed Scott Rock's body in the back of the station wagon. Ricky Lockwood, Scott Keating and Sean Hudson set off for the 24 hour shop at about 3am. Shortly thereafter, Neville Whiting drove the station wagon containing Scott Rock's body to the Hollybank forest near Lilydale. He there dumped the body on the side of a bush track, covered it with timber, doused it with petrol from a can that he had taken from Scott Keating's residence, and set fire to it. The incinerated remains...