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14
Court of Criminal Appeal 29 September 1999

Regina v Cocking

[1999] NSWCCA 311

Assault & violence

Citation: Regina v Cocking [1999] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 29 September 1999
Judge(s): Spigelman CJ, Grove J, Sully J

Background

The applicant pleaded guilty in the District Court to two offences: malicious wounding (under s 35(a) of the Crimes Act 1900 (NSW)) and assault occasioning actual bodily harm (under s 59 of the same Act). Both offences arose from a violent home invasion in September 1996, during which the applicant and two companions entered a private residence and inflicted serious injuries on two occupants, one of whom was rendered unconscious.

The sentencing judge imposed a sentence of four years penal servitude on the wounding count (with a minimum term of two years and six months and an additional term of 18 months), and a concurrent fixed term of 12 months on the assault count. The applicant sought leave to appeal against those sentences.

The appeal raised questions about whether the sentencing judge had committed legal error by taking into account aggravating circumstances that went beyond the offences actually charged, and also whether the dates recorded on the sentences contained a technical error.

  • Whether the sentencing judge erred in law by referring, in her sentencing remarks, to the applicant as an "angry, drunk ex partner" acting as a "home invader" against a former partner, thereby taking into account conduct more serious than the charges before the court (the De Simoni principle)
  • Whether, if such an error was established, the Court of Criminal Appeal was obliged to replicate what the sentencing judge would have imposed absent the error, or whether the Court should exercise its own sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW)
  • Whether the sentences contained a manifest error in their dating that required correction

Decision

The Court found that the sentencing judge's remarks did reflect a De Simoni error. The principle established in Regina v De Simoni (1981) 147 CLR 383 provides that a sentencing court must not take into account, as an aggravating factor, circumstances that would have warranted a conviction for a more serious offence than the one charged. The judge's characterisation of the applicant as a violent ex-partner conducting a domestic home invasion introduced aggravating circumstances that were not properly part of the offence for which he was being sentenced.

Having identified that error, the Court turned to the question of how to exercise the sentencing discretion on appeal. Drawing on the Court of Criminal Appeal's own earlier reasoning in Regina v Frederick Thomas Thorpe (unreported, 17 December 1992), the Court confirmed that, once a De Simoni error is established, the appellate court exercises its sentencing discretion entirely afresh under s 6(3) of the Criminal Appeal Act. The Court is not constrained to replicate what the trial judge would have done absent the error.

The Court also identified a technical error in the dating of the sentences as imposed. Both the De Simoni error and the dating error were addressed in the orders made.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed to the extent of correcting a manifest error in the dating of the sentences
  • Original sentences quashed and reaffirmed (with corrected dates)

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from treating as an aggravating factor any circumstance that would have constituted a more serious offence than the one actually charged, even where that circumstance is referenced in the sentencing remarks.
  • Where a De Simoni error is established on appeal, the Court of Criminal Appeal exercises the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW), rather than attempting to reconstruct what the original judge would have decided absent the error.
  • In applying Thorpe, the Court of Criminal Appeal confirmed that an appellate court forms its own view of an appropriate sentence, as reflected in language such as "in our view", rather than deferring to a hypothetical assessment of the sentencing judge's intentions.
  • Technical errors in the dating of sentences, although distinct from substantive sentencing errors, are capable of correction on appeal and will be addressed as a manifest error where identified.
  • A plea of guilty to malicious wounding and assault occasioning actual bodily harm, arising from a violent home invasion causing serious injuries to two victims, attracted a head sentence of four years penal servitude in the District Court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(a), 59
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Commonwealth Crimes Act 1914

Cases
- Regina v De Simoni (1981) 147 CLR 383
- Regina v Johnson [1917] 17 SR (NSW) 481
- Regina v Sorlie [1925] 25 SR (NSW) 532
- The Queen v Stephen Lorne Astill (No. 2) (1994) 64 A Crim R 289
- Regina v Oastler, unreported, NSW Court of Criminal Appeal, 7 October 1992
- Regina v Frederick Thomas Thorpe, unreported, NSW Court of Criminal Appeal, 7 December 1992