Citation: Regina v Hockey [1999] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 9 June 1999
Judge(s): Grove J; Carruthers AJ
Background
The applicant pleaded guilty in the Gosford District Court to assault with intent to rob whilst armed with an offensive weapon, contrary to s 97 of the Crimes Act. The offence involved entering a pharmacy, brandishing a pocket knife, threatening a 70-year-old woman with violence, and attempting to force open the till. The applicant was apprehended nearby by an off-duty police officer after fleeing the scene.
McGuire DCJ sentenced the applicant to a total of five years penal servitude, structured as a three-year minimum term and a two-year additional term. His Honour found special circumstances justifying a departure from the standard sentencing formula, resulting in a longer potential parole period than the statutory default.
The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, relying in part on comparative statistics from the Judicial Commission.
Legal Issues
- Whether the sentence of five years penal servitude was manifestly excessive given the applicant's subjective circumstances, including his plea of guilty, remorse, steps toward rehabilitation, and claimed drug addiction
- Whether the sentencing judge gave adequate weight to the applicant's assistance to authorities in nominatin his drug supplier to police
- Whether Judicial Commission sentencing statistics supported a finding that the sentence fell outside the appropriate range
- Whether the guideline judgment in R v Henry & Ors (1999) NSWCCA 111 applied to an offender who was not a young person
Decision
Grove J rejected the submission that the breach of a recognizance was an insignificant aggravating factor simply because the bond was close to expiry. The court held that the very fact lenience had been granted, and its terms remained operative at the time of the offence, was an aggravating circumstance regardless of how much of the bond period had elapsed.
The court acknowledged mitigating factors, including the guilty plea and remorse, but noted that the value of the guilty plea and admissions to police was reduced by the fact the applicant had been caught fleeing the scene. The applicant's nomination of his drug supplier was characterised as minor assistance, and any discount under s 442B of the Crimes Act needed to be proportionate to that limited quality.
Grove J addressed the statistical argument directly, holding that sentencing is an exercise in judgment, not statistics. Many figures underlying the Judicial Commission data predated the guideline judgment in Henry, which was itself issued in part to correct patterns of undue leniency. The court confirmed that guideline judgments provide reference points, not exhaustive checklists, and that a proper range of sentencing discretion must be preserved.
On the application of Henry, Grove J noted the guideline expressly addressed young offenders, making its relevance to a 43-year-old applicant debatable. On any view, the sentence was not manifestly excessive and reflected a sound exercise of discretion by the sentencing judge.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence within the range established by a guideline judgment will not be manifestly excessive merely because statistical data suggests it falls in the upper portion of sentences imposed for comparable offences.
- Judicial Commission sentencing statistics carry limited weight where the underlying data predates a guideline judgment issued specifically to correct patterns of undue leniency.
- Guideline judgments set reference points and schedule relevant factors, but they do not constitute an exhaustive framework against which every sentencing discretion must be measured.
- A current recognizance remains an aggravating factor at sentence regardless of how close to expiry it was at the time of the offending; the court rejected the proposition that proximity to the end of the bond period diminished its relevance.
- Drug addiction was acknowledged as a possible explanation for offending but was not treated as a standalone mitigating factor; subjective circumstances, including rehabilitation steps, were nonetheless taken into account by the sentencing judge.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 97 (assault with intent to rob whilst armed with an offensive weapon)
- Crimes Act (NSW), s 442B (discount for assistance to authorities)
- Sentencing Act (NSW), s 5(2) (statutory minimum/additional term formula)
Cases:
- R v Henry & Ors (1999) NSWCCA 111
- R v Thorley, NSW Court of Criminal Appeal, 5 February 1991 (Samuels JA, quoted on the proper scope of appellate correction of sentence)