Hockey v Regina - [2006] NSWCCA 146

CITATION: HOCKEY v REGINA [2006] NSWCCA 146

HEARING DATE(S): 17 October 2005

JUDGMENT DATE:
8 May 2006

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 2; Johnson J at 24

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: Sentence appeal - drug dealing - significance of subjective factors - whether users of drugs are "victims" within s 21A(2) of Crimes (Sentencing Procedure) Act 1999 - whether drug dealing "committed without regard to public safety" within s 21A(2)(i) - potential for double counting - appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A

CASES CITED: R v Close (1993) 65 A Crim R 55
R v Tadrosse [2005] NSWCCA 145
R v Way (2004) 60 NSWLR 168

PARTIES:
Rachael Jane HOCKEY (Appellant)
v
Regina (Respondent)

FILE NUMBER(S): CCA 2005/593

COUNSEL: S Odgers SC (Appellant)
D Frearson SC (Crown)

SOLICITORS: Baker Deane & Nutt (Appellant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0090

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

LOWER COURT DATE OF DECISION: 10/27/2004

2005/593

McCLELLAN CJ at CL
ADAMS J
JOHNSON J
8 May 2006

Rachael Jane HOCKEY v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with the orders proposed by Adams J and generally with his reasons. I understand his Honour’s remarks with respect to s 21A(2)(g) and (m) but the matters which his Honour raises were not argued and I would prefer to leave any resolution of those problems until an appropriate occasion.

2 ADAMS J: On 27 August 2004 an indictment containing five charges was presented against the applicant who entered pleas of guilty to the following two charges –

1. Supply not less than indictable quantity of methylamphetamine between 1 January 2002 and 30 December 2002.

2. Supply not less than a commercial indictable quantity of methylamphetamine between 1 June 2003 and 22 October 2003.

3 The Crown accepted the pleas of guilty in full satisfaction of the indictment. On 5 October 2004 the applicant asked that a further offence should be taken into account in respect of the second of the above charges. That further offence was supplying not less than an indictable quantity of methylamphetamine on 22 October 2003. On 27 October 2004 the applicant was sentenced in respect of the first charge to a fixed term of one year expiring on 26 October 2005 and, in respect of the second, two and a half years’ imprisonment commencing on 27 October 2005 with a non-parole period of one year. Accordingly, the total effective sentence was three and a half years with a non-parole period of two years.

4 The applicant accepts that the sentences imposed were, on the face of it, lenient and makes no challenge to the individual sentences. She contends, however, that the learned sentencing judge erred in wholly accumulating the two sentences. It is submitted, in substance, that the effect of so doing was to punish the applicant excessively for the totality of the criminal conduct comprehended…

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 Hockey v Regina

Details

AGLC: HOCKEY v Regina [2006] NSWCCA 146
Case: [2006] NSWCCA 146
Decision Date: 8 May 2006

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence imposed on the appellant, Hockey, who was convicted of drug dealing. The matter was heard in the NSW Court of Criminal Appeal. The appellant challenged the severity of the sentence, contending that it failed to adequately consider subjective factors and the impact of drug dealing on the users of the drugs, who were deemed "victims" under the Crimes (Sentencing Procedure) Act 1999. The appellant further argued that the sentence did not sufficiently reflect the notion that drug dealing was "committed without regard to public safety," as required by the same Act.

The legal issues before the court were whether the trial judge was required to consider the subjective factors in sentencing, including the impact on drug users who could be considered victims. Additionally, the court had to determine whether the appellant's drug dealing was committed without regard to public safety, and if there was a risk of double counting these factors in the sentencing process. The court was also required to consider the overall proportionality of the sentence imposed.

The NSW Court of Criminal Appeal found that the trial judge had adequately considered the relevant subjective factors and the impact on drug users, and had not erred in their assessment. The court held that there was no requirement for the trial judge to specifically label drug users as "victims" under the Act for the purposes of sentencing. Regarding the notion of drug dealing being committed without regard to public safety, the court found that the trial judge had appropriately considered this aspect in their sentencing determination. The court concluded that there was no double counting of factors and that the sentence was proportionate to the offence committed. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders