New South Wales
Court of Criminal Appeal
CITATION: R v Hookey; Cooper and Dates [2009] NSWCCA 252 HEARING DATE(S): 22 September 2009
JUDGMENT DATE:
30 September 2009JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Hall J at 37 DECISION: Crown appeal in each instance is dismissed CATCHWORDS: Criminal law - sentencing - Crown appeal - escape from lawful custody and related offences - "special circumstances" - manner in which sentences structured - application of the principle of totality LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment CASES CITED: Arnaout v R [2008] NSWCCA 278
Clare v R (2008) 181 A Crim R 450
Johnson v the Queen (2004) 78 ALJR 616
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1988) 194 CLR 610
R v Close (1992) 65 A Crim R 55
R v Horne [2004] NSWCCA 8
R v Pham [2005] NSWCCA 94
R v Robinson [2000] NSWCCA 182
R v Simpson (1992) 61 A Crim R 58
R v Simpson (2001) 53 NSWLR 704
R v Thomson NSWCCA unrep’d 21 May 1986PARTIES: Regina
Darren Hookey
Leigh Cooper
Stephen DatesFILE NUMBER(S): CCA 2009/3670; 2009/3680; 2009/3671 COUNSEL: M Grogan (Crown) (Appellant)
J Stratton SC (Respondent Hookey)
R Burgess (Respondent Cooper)
J Watts (Respondent Dates)SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
S O'Connor (Solicitor Legal Aid Commission) (Respondents)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/3671 LOWER COURT JUDICIAL OFFICER: Nicholson SC DCJ LOWER COURT DATE OF DECISION: 23 June 2009
2009/3670
2009/3680
2009/3671WEDNESDAY 30 SEPTEMBER 2009McCLELLAN CJ at CL
BUDDIN J
HALL J
R v DARREN HOOKEY; R v LEIGH COOPER; R v STEPHEN DATES
1 McCLELLAN CJ at CL: I agree with Buddin J
These are Crown appeals against sentences imposed upon the three respondents in the District Court which, for reasons of convenience, were heard together. Without intending any disrespect to them, I shall refer to each of the respondents by their surnames. Although each of these respondents was sentenced in respect of other offences as well, which appeared on a s 166 certificate, the appeal is confined to the sentences imposed upon each of them for the offence of escaping from lawful custody That offence, when dealt with on indictment, attracts a maximum penalty of 10 years imprisonment.Introduction
3 The factual background to the matter, being uncontroversial, can be briefly stated. The three respondents were inmates at the Yetta Dhinnakkal Correctional Facility, which is located about 65 kilometres from Brewarrina. According to the sentencing judge it is set on about 10,000 hectares and has no security fence. Most of the inmates, like the respondents, are young Aboriginal men. His Honour observed, of the facility, that “[p]rison discipline is generally abandoned for a more therapeutic type of custody geared towards learning skills ranging from literacy, driving knowledge tests to driving farm equipment, fencing and the like”.
4 Shortly after 10pm on 2 November 2008 the three respondents left the facility in…
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- R v Hookey [2009] NSWCCA 252
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- [2009] NSWCCA 252
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CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the trial judge had erred in the manner in which the sentences were structured, particularly in relation to the application of the principle of totality. The Crown contended that the non-parole period was too short, and that the principle of totality had not been properly applied. The Court of Appeal considered whether the trial judge had erred in law by imposing a non-parole period that was excessively lenient and whether the principle of totality had been misapplied.
The Court of Appeal found that the trial judge had erred in law by imposing a non-parole period that was excessively lenient and that the principle of totality had not been properly applied. The Court held that the principle of totality required that the cumulative effect of the sentences be considered, and that the non-parole period should reflect the seriousness of the offences and the need for deterrence and denunciation. The Court of Appeal granted leave to appeal, quashed the sentence, and remitted the matter to the Supreme Court of South Australia for re-sentencing. The Court emphasised the importance of the principle of totality in ensuring that the cumulative effect of sentences is appropriate and that the non-parole period reflects the seriousness of the offences and the need for deterrence and denunciation.
Orders
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Evidence
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