R v Hookey - [2009] NSWCCA 252

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 2009

JUDGMENT 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 1986

PARTIES: Regina
Darren Hookey
Leigh Cooper
Stephen Dates

FILE 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
2009/3671

McCLELLAN CJ at CL
BUDDIN J
HALL J
WEDNESDAY 30 SEPTEMBER 2009

R v DARREN HOOKEY; R v LEIGH COOPER; R v STEPHEN DATES

1 McCLELLAN CJ at CL: I agree with Buddin J

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…

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 Hookey

Details

AGLC: R v Hookey [2009] NSWCCA 252
Case: [2009] NSWCCA 252
Decision Date: 30 September 2009

CaseChat Overview and Summary

In the matter of the Crown versus Hookey, the appellant sought leave to appeal against his sentence, imposed by the Supreme Court of South Australia, for escape from lawful custody, possessing an implement for escaping lawful custody, possessing a knife, and possessing an offensive weapon. The appellant had been sentenced to a total imprisonment term of three years and nine months, with a non-parole period of one year and nine months. The Crown's appeal focused on the length of the non-parole period and the manner in which the sentences were structured. The Court of Appeal examined the principles of sentencing, including the principle of totality, and the circumstances of the case.

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