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Court of Criminal Appeal 14 February 2000

Regina v Cocking

[2000] NSWCCA 435

Sexual offences
CRIMINAL LAW SENTENCE APPEAL

Citation: Regina v Cocking [2000] NSWCCA 435
Court: NSW Court of Criminal Appeal
Date: 14 February 2000
Judge(s): Sully J; Carruthers AJ

Background

The appellant pleaded guilty in the Newcastle District Court to twelve counts of indecent assault against female members of his extended family, all under the age of 16. The victims ranged in age from five to twelve years old, and the offending spanned approximately 29 years, from 1955 to 1984. The victims came from two generations of the family, including children of some original complainants.

At sentencing in April 1998, the sentencing judge, Howie DCJ, imposed an overall sentence of seven years with a minimum term of four and a half years. The judge noted at the time that the appellant, then aged 68, appeared to be in generally good physical and mental health, and that imprisonment would therefore be no greater a burden on him than on other prisoners of comparable age and background.

In the months following sentencing, the appellant began experiencing symptoms that led to a diagnosis of prostate cancer, as well as angina and other conditions. Medical evidence indicated it was highly likely the cancer had been present at the time of sentencing, though it was unknown to the appellant then. The appellant sought leave to appeal, relying substantially on this fresh medical evidence.

  • Whether the original sentences imposed by Howie DCJ were within the appropriate discretionary range given the material before him at the time
  • Whether fresh evidence of the appellant's serious medical conditions, unknown at the time of sentencing, should lead to a reduction in sentence
  • Whether the sentencing judge gave adequate weight to the appellant's pleas of guilty

Decision

The Court accepted that the sentences imposed by Howie DCJ were appropriate on the material available to him at the time. The Court gave full weight to the appellant's argument about the pleas of guilty but found no error in how the sentencing judge had approached that factor, given the duration and seriousness of the offending and the significant deterrence considerations.

The Court then turned to the fresh evidence. Medical evidence from Professor Millard confirmed the appellant had prostate cancer that was highly likely to have been present at sentencing. By the time of the appeal, the cancer had responded to hormone and radiation therapy, producing clinical remission, though the appellant remained subject to ongoing treatment and prognosis was uncertain.

The Court found that this additional evidence, combined with evidence of the genuine difficulties the appellant had experienced during incarceration (including claustrophobia stemming from a mining accident, depressed mood, and the management challenges his conditions presented in custody), warranted a variation of the sentence. The Court was careful to balance the serious objective circumstances of the offending against the changed subjective picture now before it.

The Court concluded that the overall sentence should be reduced by one year. It achieved this by shortening the minimum term for count five (the head count for sentencing purposes) by one year, while leaving the additional term unchanged. The sentences on all other counts, which had either expired or were fixed terms, were confirmed.

Orders Made

  • Leave to appeal granted
  • Appeal upheld in part
  • Sentences on counts one, two, three, four, six, seven, eight, nine, ten, eleven and twelve confirmed
  • Sentence on count five varied: minimum term of 18 months imprisonment to commence 22 April 2000 and expire 21 October 2001, with an additional term of two years and six months to commence 22 October 2001 and expire 21 April 2004
  • The appellant became eligible for parole on 21 October 2001

Key Takeaways

  • Fresh evidence of a serious medical condition that was undiagnosed and unknown to an offender at the time of sentencing can constitute a proper basis for an appellate court to intervene and reduce a sentence.
  • The Court of Criminal Appeal confirmed that sentences otherwise within the appropriate discretionary range are not disturbed simply because fresh evidence emerges, but that such evidence must be weighed against the gravity of the objective circumstances of the offending.
  • A sentencing judge's assessment of an offender's physical health, if later shown to have been based on incomplete information through no fault of either party, may be revisited on appeal where the true position is materially different.
  • Where multiple counts are involved and most fixed terms have already expired, an appellate court can achieve a reduction in the overall sentence by varying the minimum term of the principal count alone.
  • The ongoing burden of imprisonment, including the psychological impact and management of serious illness in custody, forms part of the relevant subjective circumstances an appellate court may consider when fresh evidence is admitted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 76 and 61E(1) (both since repealed)
- Sentencing Act 1989 (NSW)

Cases
- Regina v L (Unreported, NSWCCA, 17 June 1996)
- Regina v Jones (1993) 70 A Crim R 449
- AB v Regina (1999) 73 ALJR 1385