Citation: Regina v Phillip John Hancock [2001] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 17 August 2001
Judge(s): Sully J; Smart AJ
Background
The appellant pleaded guilty in the District Court to three offences arising from events on 1 May 2000 and 11 July 2000. The first offence was break, enter and steal, committed when the appellant broke into a home and stole approximately $5,000 worth of electronics and jewellery while travelling in a stolen vehicle. Two charges of assaulting a police officer arose from separate incidents: one during a police chase on 1 May, when the appellant drove a vehicle into an officer, and another on 11 July, when he drove off from a pawn shop while an officer's arm was trapped in the door frame.
The Chief Judge of the District Court sentenced the appellant to five years imprisonment (with a three-and-a-half-year non-parole period) on the break, enter and steal count, with concurrent fixed terms of two years and three years respectively on the two assault charges. All sentences commenced on 11 July 2000. Several related matters, including dangerous driving, unlicensed driving, goods in custody, and malicious damage, were taken into account on a Form 1.
The appellant had a lengthy criminal record, including convictions for break, enter and steal and receiving. He had been released on parole only four months before committing the May 2000 offences.
Legal Issues
- Whether the sentencing judge erred by failing to treat the offences as Local Court matters, thereby applying a lower sentencing range
- Whether the sentencing judge erred in imposing a longer sentence than the appellant's previous sentence for similar offending
- Whether the non-parole period of three-and-a-half years was excessive
- Whether the overall head sentence of five years fell outside the range of a sound sentencing discretion
Decision
On the first ground, the Court held there was nothing inherently significant about the fact that the offences could have been prosecuted in the Local Court. The decision to prosecute in the District Court was a matter for the Crown's discretion, and the Court found that discretion was properly exercised given the appellant's established pattern of repeat offending. The argument that a lesser sentence might have resulted from Local Court proceedings did not constitute appellable error.
On the second ground, the Court found no error in the sentencing judge's approach of imposing a longer sentence than the appellant had previously received. The sentencing judge was bound to treat the appellant as a clearly established recidivist, and the remarks on sentence reflected a proper application of that principle.
Regarding the concurrent structure of the sentences, the Court noted that the sentencing judge could reasonably have ordered partial cumulation given the offences on 11 July were entirely distinct from those on 1 May. The decision to make all sentences concurrent was itself a benefit to the appellant, and the Court was not persuaded that the head sentence or the non-parole period fell outside the available range of sound sentencing discretion. Smart AJ added that the gravity of the criminality was such that a lesser sentence could not reasonably have been imposed.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the mere fact offences were capable of being dealt with in the Local Court does not, by itself, affect the appropriateness of a District Court sentence imposed within that court's jurisdiction.
- A sentencing judge dealing with a clearly established recidivist is entitled to impose a longer sentence than that offender's previous sentence for similar offending, particularly where the offending continued a well-established pattern.
- In dismissing the appeal, the Court affirmed that making sentences concurrent, rather than cumulative, for factually distinct episodes of offending can itself constitute a benefit to an offender with a poor antecedent record.
- No appellable error arises merely because a lesser outcome was theoretically possible; the test is whether the sentence imposed fell within the range of a sound sentencing discretion.
- Where favourable subjective factors are recognised and brought into account by the sentencing judge, an appellate court will not intervene simply because those factors could have been weighed differently.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 112(1) (break, enter and steal; maximum 14 years imprisonment)
- Crimes Act (NSW), s 60(1) (assault police officer in execution of duty; maximum 5 years imprisonment)
Cases cited: No specific cases were cited in the judgment text provided.