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R v Cocking

R v Cocking

Case [1999] NSWCCA 311 29 September 1999

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CITATION: Regina v Cocking [1999] NSWCCA 311

FILE NUMBER(S): CCA 60174/99

HEARING DATE(S): 29 September 1999

JUDGMENT DATE:
29 September 1999

PARTIES :

Regina
Martin James Cocking

JUDGMENT OF: Spigelman CJ at 26; Grove J at 30; Sully J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/31/0446

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL: L.M.B Lamprati - Crown
P.J.D Hamill - Applicant

SOLICITORS: D.P.P NSW
Legal Aid Commission of NSW

CATCHWORDS:

ACTS CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Commonwealth Crimes Act 1914

CASES CITED:
Regina v De Simoni (1981) 147 CLR 383; Regina v Johnson [1917] 17 SR (NSW) 481; Regina v Sorlie [1925] 25 SR (NSW), 532 at 539; The Queen v Stephen Lorne Astill (No. 2) (1994) 64 A Crim R 289; Regina v Oastler, unreported, CCA (NSW) 7/10/92; Regina v Frederick Thomas Thorpe NSWCCA, unreported, 7/12/92

DECISION: Leave to appeal against sentence granted; appeal allowed to extent of correcting manifest error in dating of sentences; sentences quashed and reaffirmed.

IN THE COURT OF
CRIMINAL APPEAL
60174/99
SPIGELMAN CJ
GROVE J
SULLY J
29 September 1999

REGINA v Martin James COCKING
JUDGMENT

1 SULLY J: On 9 December 1998 the present applicant, Mr Martin James Cocking, entered in the District Court pleas of guilty to two counts in an indictment which had been presented against him. 2 The first count charged the applicant with malicious wounding, an offence contravening s.35 (a) of the Crimes Act 1900 (NSW) attracting, upon conviction, a statutory maximum penalty of penal servitude for seven years. 3 The second count charged the applicant with assault occasioning actual bodily harm, an offence contravening s.59 of the Crimes Act and attracting upon conviction, a statutory maximum penalty of penal servitude for five years. 4 In due course, and on 29 March 1999, the applicant appeared before her Honour Judge English, sitting in the Tamworth District Court. He adhered to his pleas of guilty, and her Honour heard, thereupon, evidence and submissions. 5 On the following day, 30 March 1999 the applicant stood for sentence before her Honour. 6 Upon count 1 the applicant was sentenced to penal servitude for four years apportioned between a minimum term of two years and six months, and an additional term of 18 months. 7 Upon count 2 the applicant was sentenced to a fixed term of penal servitude for 12 months, dated in such a fashion as to run concurrently with the sentence imposed upon the first count. 8 It will be necessary a little later to return to the question of the proper dating of those sentences. 9 The relevant facts are set out as follows in the Police Facts Sheet, which was part of the material tendered without objection to the learned sentencing Judge:

"On the evening of 4 September, 1996, Ms Deborah TODD was at her home at 198 River Street, Manilla with a friend, Phillip WALSH.

About 9.45pm that evening, after having a meal with Mr…

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 R v Cocking

Details

AGLC: R v Cocking [1999] NSWCCA 311
Case: [1999] NSWCCA 311
Decision Date: 29 September 1999

CaseChat Overview and Summary

Martin James Cocking was convicted of malicious wounding and assault occasioning actual bodily harm, and was sentenced by Judge English in the Tamworth District Court to four years and twelve months respectively. The applicant appealed against the severity of the sentence, arguing that the sentencing judge made a legal error by considering factors that amounted to more serious offences than those for which he was convicted. The applicant also argued that the sentences were incorrectly backdated.

The court examined whether the sentencing judge made a legal error by considering factors beyond the charges for which the applicant was convicted. The court found that the sentencing judge was entitled to consider the objective facts of the case, including the seriousness of the injuries inflicted, and the fact that the assault occurred in the victim's home. The court held that the sentencing judge's remarks about "home invaders" did not constitute a legal error.

The court also found that the sentencing judge had incorrectly backdated the sentences to the date the applicant entered his pleas, instead of taking into account the six months and 26 days the applicant had already spent in custody. The court decided to correct the dating of the sentences.

The court granted leave to appeal against the sentence and allowed the appeal to the extent of correcting the manifest error in dating of the sentences. The sentences were quashed and reaffirmed with the correct dating. The court held that if a more lenient sentence was not warranted in law, the original sentences should stand.

Orders