R v Hocking - [2000] NSWCCA 339

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Hocking [2000] NSWCCA 339

FILE NUMBER(S):
60347/00

HEARING DATE(S): 25 August 2000

JUDGMENT DATE: 25/08/2000

PARTIES:
REGINA
(Appellant)
v
ANTHONY PHILLIP HOCKING
(Respondent)

JUDGMENT OF: Beazley JA Smart AJ Ireland AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/71/0150

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
A: Mr W G Dawe QC
R: Mr M D Austin

SOLICITORS:
A: S E O'Connor
R: Sydney Regional Aboriginal Corporation Legal Service

CATCHWORDS:
Criminal Law & Procedure
section 5DA Crown appeal against sentence
robbery in company
breach of undertaking to give evidence
re-sentence

LEGISLATION CITED:
Criminal Appeal Act 1912, s 5DA
Crimes Act 1900, s 442B
Crimes (Sentencing Procedure) Act 1999, s 23

DECISION:
Appeal allowed. Sentence Varied. See paragraph 38.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
CCA 60347/00

BEAZLEY JA
SMART AJ
IRELAND AJ

Friday, 25 August 2000
REGINA v ANTHONY PHILLIP HOCKING
JUDGMENT

IRELAND AJ: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act, 1912 against the reduced sentence imposed upon the respondent by his Honour Judge Knight at the District Court at Griffith on 11 February 1999.
Section 5DA relevantly provides as follows:-
(1)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.
(2)On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.
(3)…
On 1 February 1999, the respondent was indicted before Knight DCJ on one count of robbery in company pursuant to s 97(1) of the Crimes Act, 1900. The maximum penalty for an offence in contravention of this section is 20 years imprisonment.
At the time of the commission of the offence, the respondent was on a recognisance to be of good behaviour for 2 years, imposed on 12 September 1996 at Narrandera Local Court, for an offence of break, enter and steal. On 11 February 1999, his Honour sentenced the respondent to a minimum term of 2 years imprisonment commencing on 16 January 1999 and expiring on 15 January 2001 and an additional term of 12 months commencing on 16 January 2001 and expiring on 15 January 2002.
The sentence imposed on the respondent was made cumulative to six concurrent sentences of 9 months imprisonment for unrelated offences, including assault occasioning actual bodily harm and common assault, imposed on 14 August 1998 at Narrandera Local Court.
Knight DCJ recommended that no further action be taken in relation to the breach of recognisance.
In structuring the sentence to be imposed, his Honour indicated that, pursuant to s 442B of the Crimes Act, 1900, he would take into account the…

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 Hocking

Details

AGLC: R v Hocking [2000] NSWCCA 339
Case: [2000] NSWCCA 339
Decision Date: 25 August 2000

CaseChat Overview and Summary

The case before the court involved the appellant, Hocking, who was convicted of robbery in company. The prosecution sought a review of the sentence imposed on Hocking under section 5DA of the relevant legislation, which allows for a Crown appeal against sentence in certain circumstances. Hocking's conviction arose from an incident where he participated in a robbery with others. The primary issue before the court was whether the original sentence was manifestly inadequate, necessitating a re-sentencing. Additionally, the court had to consider whether Hocking's breach of an undertaking to give evidence should impact the sentence.

The court examined the seriousness of the crime and the appropriate sentence for such an offence. The primary focus was on whether the original sentence failed to adequately reflect the gravity of the crime, which involved a significant breach of public safety and trust. The court also evaluated Hocking's cooperation, or lack thereof, with the legal process, particularly his failure to abide by his promise to testify. This factor was considered in the context of the overall sentence to determine if it warranted a re-sentencing.

In its decision, the court determined that the original sentence did indeed fall short of what was necessary to appropriately reflect the seriousness of the crime and to achieve the aims of deterrence and denunciation. The court found that the sentence did not sufficiently account for the gravity of the offence, the appellant's role in it, and the impact on the victims. Additionally, the court recognised the appellant's breach of his undertaking to testify as a significant factor that undermined the judicial process. Consequently, the court concluded that a re-sentencing was warranted to address these deficiencies.

The court ordered that Hocking be re-sentenced to reflect the appropriate punishment for the crime committed, taking into account the aggravating factors identified during the appeal. The court emphasised the importance of ensuring that the sentence adequately served the purposes of punishment, deterrence, and public protection.

Orders