Regina v Phillip John Hancock

[2001] NSWCCA 339

CITATION:	Regina v Phillip John Hancock [2001] NSWCCA 339
FILE NUMBER(S):	CCA 60743/00
HEARING DATE(S):	17 August 2001
JUDGMENT DATE:	17 August 2001
PARTIES :	Regina Phillip John Hancock
JUDGMENT OF:	Sully J at 1; Smart AJ at 37

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0786
LOWER COURT JUDICIAL OFFICER :	Blanch CJ/DC

COUNSEL :	G. Smith - Crown H. Dhanji - Appellant
SOLICITORS:	S. E. O'Connor - Crown Legal Aid Commission - Appellant
LEGISLATION CITED:	Crimes Act
DECISION:	Leave to appeal against sentence granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60743/00

SULLY J
SMART J

Friday 17 August 2001

REGINA v PHILLIP JOHN HANCOCK

JUDGMENT

1 SULLYJ: Mr Phillip Hancock applies for leave to appeal against the asserted severity of sentence of imprisonment passed upon him on 16 November 2000 by the Chief Judge of the District Court sitting in that Court at Sydney.

2 The applicant pleaded guilty before the Chief Judge to three offences. The first was an offence of break, enter and steal, which was committed on 1 May 2000. An offence of that character contravenes s112 sub-s1 of the Crimes Act and it attracts upon conviction a statutory maximum penalty of imprisonment for fourteen years.

3 The second matter involved an offence of assaulting a police officer in the execution of his duties. That, too, occurred on 1 May 2000. An offence of that character contravenes s60 sub-s1 of the Crimes Act and attracts upon conviction, a statutory maximum penalty of imprisonment for five years.

4 The third matter involved also the assaulting of a police officer in the execution of that officer's duty.

5 In connection with the break, enter and steal matter, his Honour was asked to take into account a number of related offences. They involved the taking and driving of a conveyance, driving a motor vehicle in a manner dangerous, driving a motor vehicle whilst unlicensed.

6 In connection with the assault police offence committed on 1 May 2000, a number of matters were taken into account on a Form 1. They involved four matters: goods in custody; again an offence of driving a motor vehicle in a manner dangerous to the public; an offence of driving a motor vehicle while unregistered; and an offence of malicious damage.

7 The Chief Judge dealt with the matters by imposing the most substantial of the sentences in connection with the first count, that is to say the break, enter and steal offence. In that connection, his Honour passed a sentence of imprisonment for five years commencing on 11 July 2000; and his Honour fixed in connection with that sentence, a non-parole period of three and a half years.

8 In relation to the first of the two assault police matters, his Honour passed a sentence of two years' imprisonment as a fixed term commencing also on 11 July 2000.

9 In connection with the second assault police count, his Honour passed a sentence of imprisonment of three years as a fixed term, dating it, too, to commence on 11 July 2000.

10 The material facts are serious but they are not complicated. They can be taken conveniently and as follows, from the remarks on sentence by the Chief Judge:

"The facts of the break, enter and steal are that on 1 May 2000 he was going to court at Newcastle. He was driving with his girlfriend and had gone to Newcastle to attend court and he was going there in a stolen car. On the way back, he committed the offence of break, enter and steal by breaking into a home and stealing approximately $5000 worth of property consisting of electronic equipment and jewellery basically. As he drove off in the stolen car with that property in it, the car broke down. He stole another vehicle at the Warringah Shopping Centre and transferred the stolen property into that stolen vehicle. Then he and his friend continued down the highway. That van was reported stolen and the police gave chase to it. There was a significant period of chase which involved some erratic driving and attempts by the prisoner to evade arrest by the police. He did in fact escape on that occasion but his friend was arrested.
She was charged with being carried in a conveyance and being an accessory after the fact to the break, enter and steal, it being accepted apparently, that she did not know that he was breaking into the house and in fact the prisoner says she was asleep. She was dealt with on those matters and fined and released on a bond.
In the course of avoiding arrest, he drove the car so that it hit a police officer and that constitutes one of the charges of assault. Ultimately, he was arrested on 11 July and again, on that day, he was arrested in a loan office pawning property which is the subject matter of the goods in custody charges. Again, he avoided immediate arrest by driving off. Unfortunately, when he first drove off the police officer's arm was stuck in the door frame and he proceeded again driving in an erratic fashion until he was eventually arrested by the police, having got into a room and climbed into the manhole of premises at Glebe.
Arising from that particular sequence of events, he was charged with one further charge of assaulting a police officer and with the other matters on the form one."

11 The applicant was sentenced in November 1998 to various terms of imprisonment in respect of a receiving charge, three break, enter and steal matters and a motor vehicle larceny matter. Put very simply, he was sentenced in terms that entailed his release to parole on 9 January 2000. In other words, he had been at large for a little less than four months when he committed the first and second of the three matters charged against him in the indictment with which the Chief Judge came to deal.

12 The applicant's record otherwise was a very bad one, showing a consistent pattern of breaches of the law, notwithstanding fines and various sentences of imprisonment, and even, from time to time, various concessions by way of recognisances and the like, given to him over the years by various Courts.

13 As he presented before the Chief Judge when he appeared for sentence the applicant was, it must be said frankly, a clearly established recidivist. The Chief Judge took, in those circumstances, as in my respectful opinion he was bound to, a severe view of the culpability of the total criminal behaviour which the evidence, to which I have referred, establishes.

14 It is contended in support of the present application for leave to appeal that his Honour, in the approach that he took as outlined in his Remarks on Sentence, erred in a number of ways.

15 The first ground taken by the applicant is that the Chief Judge "erred in failing to have regard to the fact that the matters were capable of being dealt with in the Local Court."

16 It is undoubtedly the case that the matters with which the application is concerned were capable, subject to the satisfying of the relevant statutory procedures, of being dealt with in the Local Court. But there is, it seems to me, nothing talismanic about that state of affairs. To state the proposition is simply to beg the question whether these particular matters, on a reasonable view, could have been dealt with in the Local Court. That, of course, is a matter, at least in significant part, for the discretion of the prosecuting authorities. No doubt, one of the things that must be taken into account in connection with the Crown's exercise of that sort of discretion, is whether or not the offences in question are, as it were, one off offences rather than offences continuing a well established pattern of breaches of the law.

17 It seems to me that on any reasonable view of the available evidence, it was entirely proper that the matters with which this application is concerned, were prosecuted in the District Court. It is nothing to the point, however, to complain that a better result might have been obtained had the matter been prosecuted in the Local Court. They were not. They were prosecuted in the District Court; and as far as this Court is able to judge, were properly so prosecuted.

18 That being so, it ceases to be, as I think, of any use, to argue, as it were in circles, as to what different, and more advantageous result, might have been achieved by and for the applicant had his cases been dealt with within the parameters of the quite stringently capped sentences of imprisonment available to be imposed in the Local Court.

19 The first proposition taken in support of the application is, in my opinion, not made good.

20 The second argument advanced in support of the application is that the Chief Judge "erred in finding that the applicant should receive a longer sentence than his last sentence for similar offences."

21 This submission takes up the following comments forming part of the Remarks on Sentence:

"in a case such as this any punishment that is imposed has to be on the basis of taking into account what has happened before and what has happened before in this case is that for a similar group of offences he was given a four year sentence with a two year non-parole period. Within months of being released to parole, he has committed a similar series of offences.
In the ordinary course of events, any sentence that is imposed now should be longer than the sentence that he received on the previous occasion."

22 It is submitted that these remarks indicate that the Chief Judge approached the sentencing of the applicant from, as it were, a fixed position that whatever the particular result reached, it must of necessity be a result that was greater in its real and substantive effects than the results achieved in the earlier matters to which the Chief Judge referred.

23 It has been said more than once, and that by decisions of very long standing, that the Court of Criminal Appeal sits as a Court of error. It does not sit to correct minor imperfections of expression on the part of primary judges. As some of the decisions put it in terms, it is not the function of the Court of Criminal Appeal to consider in a hair-splitting kind of way, whether this or that word, or this or that phrase, might or might not have been more happily expressed in this or that suggested alternative way.

24 What has to be looked at in a level headed kind of way, is whether in fact what has been said demonstrates on a fair view, error of law or mistake of fact.

25 It seems to me that if one reads fairly in context the remarks of the Chief Judge to which present objection is taken, it draws an unexpectedly long bow, and a most artificially long bow at that, to suggest that the Chief Judge allowed a proper balancing of the relevant objective and subjective matters to be simply overwhelmed by a preconception that there could not properly be a result other than a result significantly greater than the one flowing from the earlier sentencing.

26 In my opinion, the second ground in support of the application has not been made good.

27 There remains the submission that the sentence is manifestly excessive.

28 Once again, it is important to be clear about what it is that is to be decided. It is not for the Court of Criminal Appeal to intervene because it might happen that the Judges of that Court feel that had they been the Judge at the first instance, they might have taken another, and somewhat more lenient, view than that taken by the particular primary sentencing Judge. The question is whether the primary sentencing Judge came to a conclusion which was not properly open to him, whether in fact or in law.

29 It does not matter that the sentence imposed in the Court below is fixed, or thought to be fixed, or can reasonably be fixed, at this or that arbitrarily taken point on some imagined scale from the least serious to the most serious kind of case. The question is whether the sentence fits, at whatever level, within the permissible range of sentence available on a reasonable view of the relevant objective and subjective matters.

30 As to the objective criminality in the instant cases, it is sufficient to say that in my opinion it was significantly high. The offences with which the application is concerned cannot, in my view, fairly be described as merely accidental or trivial offences. They are offences of substance. The robbery was a real robbery, not least of all to the householder in his mid sixties, who was the victim of it and of whom it can well be understood that he must have felt anguish and upset of the most acute and real kind when he came home and found that somebody had just, without any consideration of him at all, broken into his home and stolen his property, and a significant amount of his property at that.

31 As to the assault on police officers, it seems to me that they too were serious matters. The facts and circumstances as I have sought to describe them, display, in my respectful view, a state of affairs in which it would have been entirely open to the Chief Judge to have framed sentences in a way that involved a measure of a cumulation. For it seems to me that the offences of 11 July were quite distinct from the offences of 1 May. As it happens, the Chief Judge preferred the alternative approach of making all of the sentences concurrent. That, in itself, was a benefit of a not insignificant kind to the present applicant, given his appalling antecedent record.

32 The attention of the Court has been drawn to a number of matters properly available to be taken into account as favourable subjective matters. Of them it is sufficient to say that it seems to me that the Chief Judge recognised them; correctly defined them; and properly brought them into account in the way that the law requires.

33 So far as concerns the effective head sentence of imprisonment for five years, I am not at all persuaded that it was outside the range of a sound sentencing discretion.

34 The next question that has to be considered is whether the non-parole period of three and a half years is vulnerable. Once again, it seems to be, that the question is not whether a lesser non-parole period might properly have been set. The question is whether the non-parole period that was set falls on a fair view, within the available range. I have not been persuaded that it does not.

35 There is one matter that I have mentioned that perhaps ought to be revisited. Speaking of the criminality of the break, enter and steal on 1 May, I said that the robbery was a real robbery. Of course, I did not mean, as I should perhaps make clear, to confuse in a narrow technical sense, the offence of robbery with the offence of break, enter and steal. I was wishing, rather, to say that in the real world the person who came back and found his house broken into and his property stolen, if asked what had happened to him, would not have given a precise definition of break, enter and steal, but would have said in robust and no doubt colourful language, that he had been robbed.

36 Having regard to all of those matters, I have not been persuaded that appellable error has been demonstrated. Accordingly, the orders I propose are: grant leave to appeal against sentence; dismiss the appeal against sentence. I propose orders accordingly.

37 SMART AJ: I agree. In my opinion, the gravity of the criminality in relation to each of the offences the subject of the appeal was such that the sentencing Judge could not reasonably have imposed a lesser sentence.

38 SULLY J: The orders of the Court will be as I have proposed.

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