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R v Hoch (No 2) [2023] QCA 200

See full judgment: Austlii.

The offender was sentenced following conviction for 4 counts of flying aircraft as pilot in command without a licence contrary to s 20AB of the Civil Aviation Act 1988 (Cth) and 5 counts of operating an aircraft in contravention of s 27 of the Civil Aviation Act contrary to s 29 of the Civil Aviation Act. Offender also sentenced for 3 state dishonesty offences. Offender originally sentenced for 1 count of general dishonesty contrary to s 135.1 of the Commonwealth Criminal Code but the offender successfully appealed against conviction on this ground. Original sentence (excluding the offence the subject of the conviction appeal) was 3 years and 6 months imprisonment. Following the successful appeal against the Commonwealth dishonesty offence, the offender appealed against the remaining sentence on the ground that the sentencing judge would have set an earlier release date for the state dishonesty offences, and so commensurate changes should be made to the commencement date and good behaviour periods for the Commonwealth aviation offences.

Commencement and Recognizance Release: Offender’s primary submission was that the sentencing judge would not have taken the course of suspending the sentence on the state offences at later than the halfway point of the base sentence but for the need to impose an appropriate punishment for count 2. That means that, with the quashing of the conviction on count 2, the reason for fixing that date no longer applies and the date for commencement of the Commonwealth aviation offences should be earlier. Offender also sought to substitute 3 years for 4 in the recognizance release order as the period for which the applicant must be of good behaviour, on the basis that would better reflect the relationship between the period and the longest Commonwealth sentences. The point at which offender is released from custody must reflect the fact that the overall notional sentence for all the offending must be less without the quashed count which was, in fact, the most serious of the fraud offences with which offender was charged. The period during which the recognizance release order operates should relate to the length of the sentences imposed for the aviation offences. That period should be reduced.

Orders: Leave to appeal granted. Appeal allowed. Sentenced varied such that the sentences for the state fraud offences is suspended after the offender has served a period of 18 months imprisonment. The commencement date for each of the sentences imposed on the Commonwealth aviation counts is adjusted. The recognizance release order good behaviour period is shortened from 4 years to 3 years.

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