CITATION: HOCKEY v REGINA [2006] NSWCCA 146 HEARING DATE(S): 17 October 2005
JUDGMENT DATE:
8 May 2006JUDGMENT 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 168PARTIES: 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
8 May 2006McCLELLAN CJ at CL
ADAMS J
JOHNSON J
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…
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- AGLC
- HOCKEY v Regina [2006] NSWCCA 146
- Case
- [2006] NSWCCA 146
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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