Regina v Hockey

[1999] NSWCCA 149

CITATION:	Regina v Hockey [1999] NSWCCA 149
FILE NUMBER(S):	CCA 60245/98
HEARING DATE(S):	9 June 1999
JUDGMENT DATE:	9 June 1999
PARTIES :	Regina v Stephen Richard Hockey
JUDGMENT OF:	Grove J at 1; Carruthers AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0103
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ

COUNSEL:	P. G. Berman (Crown) P. M. Strickland (Applicant)
SOLICITORS:	C. K. Smith ( Crown) T. A. Murphy (Applicant)
CATCHWORDS:	Criminal Law and Procedure - Assault with intent to rob whilst armed - Sentence
CASES CITED:	R v Henry & Ors (1999) NSW CCA 111
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60245/98

Grove J
Carruthers AJ

9 June 1999

REGINA v STEPHEN RICHARD HOCKEY

JUDGMENT

1 GROVE J : This is an application for leave to appeal against the severity of sentence imposed upon the applicant by McGuire DCJ at the Gosford District Court on 1 May 1998. On that occasion the applicant adhered to a plea of guilty previously given to a magistrate on a charge of assault with intent to rob whilst armed with an offensive weapon contrary to s 97 of the Crimes Act. That offence carries a prescribed maximum penalty of twenty years penal servitude.

2    His Honour sentenced the applicant to a total term of five years penal servitude comprising minimum and additional term components of three and two years respectively. Accordingly, his Honour granted the applicant the benefit of a potentially longer time out of custody on parole than would be the case if the proportions mentioned in s 5(2) of the Sentencing Act were applied. No challenge was made to his Honour's finding of special circumstances justifying departure from the statutory formula.

3    The facts of the offence were set out in a statement tendered by consent in the District Court which were incorporated in the learned Judge's remarks on sentence. I will not repeat the entire content thereof and a short sketch will suffice for present purposes.

4    At about 8.30pm on a Saturday evening the applicant walked into a pharmacy which was tended by the seventy year old wife of the pharmacist. The applicant demanded money and produced a pocket knife which he brandished in response to the victim's refusal to open the till accompanying his actions by threats to "cut her". He tried to open the till by forcing it with the blade.

5    The victim's husband who was presumably of similar years came from the rear of the store in response to the commotion and the applicant fled. Hue and cry was raised and an off duty policewoman who was walking in company with her boyfriend apprehended the applicant and placed him under arrest. The knife was found in his pocket.

6    The applicant had some prior record including convictions for administering a prohibited drug (heroin) and possessing a prohibited drug (cannabis) in 1986. In 1995 he was placed on a recognizance to be of good behaviour for three years for an offence of breaking, entering and stealing. That recognizance was current at the time of the present offence.

7    It is convenient to deal with a written submission on behalf of the applicant which asserts that:

"There is only one aggravating factor - the applicant was on a bond at the time of the offence. That is not a significant aggravating factor in this case because the three year recognizance imposed on 5 April 1995 had almost been completed at the time of the offence on 7 February 1998."

8    The submission appears to advance the proposition that the existence of current recognizance was insignificant. I reject the contention. It may be a matter of greater aggravation that an offender commits further crime shortly after being given the benefit of lenient treatment but it is simply not insignificant in any sense that the very terms upon which lenience has been granted continue to be applicable at the time of offence. The contention that there was only one aggravating factor involves a very restricted meaning of the word "aggravating".

9    The applicant is forty three years of age. He is claimed to have been a "heroin addict intermittently" for fifteen years. I have some difficulty also with that expression. What I take it to mean is that from time to time over a span of fifteen years he succumbed to urges to partake of illicit drugs.

10    As observed by counsel for the Crown, the sentence imposed was within the guidelines formulated by this court in R v Henry & ors (1999) NSW CCA 111. An approach is to consider the guideline range established by this court and determine a sentence above or below that range in accordance with the aggravating and mitigating factors found. In this case aggravating factors included the use of the knife, the vulnerability of the mature aged victim, the circumstances of the threat of force whilst the weapon was being brandished and an effect upon the victim as described in her statement to police and their observation that she was visibly shaken and upset.

11    Factors in favour of the applicant included his plea of guilty and admissions to police although the value of these in circumstances where the applicant was arrested in flight from the scene of the crime would in my view be low.

12    The learned sentencing Judge took into account the applicant’s remorse and the steps he had taken towards rehabilitation. The contention of the applicant does not suggest that his Honour did not take into account all relevant matters and the complaint is that the sentence does not adequately reflect them.

13 One matter raised on the appeal is the suggestion that there ought to have been a discount under s 442B of the Crimes Act for assistance to the authorities. All that was involved was the circumstance that the applicant nominated his drug dealer to police. His explanation for the crime was that he needed to acquire money to discharge a present debt to his supplier. His Honour expressly stated that it was a matter which would stand the applicant in good stead although it is clear that what has been described as assistance was minor and its reflection would have to be proportionate to that quality.

14    I earlier mentioned the claimed drug addiction of the applicant as well as the observation by the sentencing Judge that the applicant had made strides towards rehabilitation. It has often been said that drug addiction supplies a possible explanation for crime but does not provide a mitigating factor. It is true that in R v Henry & ors Wood CJ at CL observed that a need to fund a drug habit may be relevant as a subjective circumstance but, as already noted, subjective matters including the steps of the applicant towards rehabilitation were taken into account.

15    Next I should make reference to some statistics from the Judicial Commission which are relied upon by counsel for the applicant. It is asserted that by reference to some extracted statistics the applicant can be assessed as having received a sentence towards the top ten to fifteen percent of all offenders and it is said that this is manifestly excessive when one takes into account the subjective matters in the applicant's favour.

16    In his succinct submission Mr Strickland of counsel said that that was the principal thrust of the appeal, namely, that the sentence was manifestly excessive. In my view it was not.

17    Sentencing is an exercise in judgment and not in statistics. Many of the figures which contributed towards the Judicial Commission statistics would necessarily be taken from cases determined prior to the guideline judgment in R v Henry & ors. Such judgments are provoked not only by the need to provide reference points for consistency but also to correct emergent patterns of undue leniency. That is not to say that a guideline judgment may not at some time be required to reflect an undue pattern of severity. The latter was not a factor giving rise to the judgment in Henry.

18    It should be recognised that guideline judgments are just that. Various factors relevant to sentence are scheduled in such judgments but they do not represent nor do they purport to represent a complete litany of possible factors against which the exercise of discretionary judgment is to be measured.

19    The words of Samuels JA in Thorley, CCA 5 February 1991, still have their validity:

"It is necessary for appellate courts to permit the sentencing judges a proper range of discretion. Our duty is to correct error, not to satisfy the individual preferences of appellate judges."

20    Argument was addressed on the basis that the applicant fulfilled all of certain criteria mentioned in Henry except one, namely, that he was not a young offender. The guideline range expressly related to offenders who are young and the relevance to the applicant at all is debatable. However on any basis the sentence was not manifestly excessive. I am of the view that the imposition reflects a sound exercise of discretion by the sentencing judge.

21    I propose that the application for leave to appeal be granted but the appeal be dismissed.

22    CARRUTHERS AJ: I agree.

23    GROVE J: The orders of the court will be as I have proposed.

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