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Court of Criminal Appeal 1 July 2004

Regina v Robert Samuel Hookey

[2004] NSWCCA 223

Assault & violence
CRIMINAL LAW SENTENCING SPECIAL CIRCUMSTANCES WHETHER FAILURE TO FIND WAS AN ERROR NO LESSER SENTENCE WARRANTED IN LAW.

Citation: Regina v Robert Samuel Hookey [2004] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 1 July 2004
Judge(s): Howie J, Dunford J, Studdert J

Background

The applicant pleaded guilty in the Local Court to three offences: inflicting grievous bodily harm with intent (maximum 25 years), assault occasioning actual bodily harm, and stealing $200. Two further offences were taken into account on a Form 1, including a second assault and threatening a witness. The matters were committed to the District Court for sentencing.

The offences arose from two separate attacks on a couple at their home in January 2002, carried out the evening of 8 January and the early morning of 9 January. The male victim suffered serious injuries including facial fractures, a partially collapsed lung, and required surgical insertion of metal plates. The applicant also threatened the victims in a street in March 2002, in breach of a bail condition.

In the District Court, Shillington ADCJ sentenced the applicant to four years' imprisonment with a three-year non-parole period for the principal offence, plus fixed terms for the remaining offences. The applicant sought leave to appeal on the basis that the sentencing judge erred by failing to find "special circumstances," which would have justified reducing the non-parole period below the standard statutory ratio.

  • Whether the sentencing judge erred by failing to find special circumstances justifying a reduction in the non-parole period below the statutory ratio
  • Whether, if such an error occurred, a lesser sentence was warranted in the circumstances

Decision

Howie J accepted that the sentencing judge's treatment of the special circumstances issue was inadequate. His Honour had stated only that finding special circumstances was not "a possible conclusion" he could come to, without engaging with the relevant factors or explaining why they did not justify a departure from the norm. The Court noted that, where matters capable of amounting to special circumstances are clearly present, a sentencing judge should provide reasons for declining to make such a finding, even though the legislation only requires reasons where special circumstances are found.

The Court identified several factors that could have supported a finding of special circumstances: the applicant's long-term alcohol problem, his lack of prior access to managed treatment or probationary supervision, the link between his alcohol-fuelled aggression and the offending, his relatively young age, and a criminal history that did not strongly weigh against leniency in the non-parole period.

Despite recognising the error in the sentencing judge's reasoning, the Court held that the appeal could not succeed. A non-parole period of less than three years would have been inadequate to reflect the objective seriousness of the offending and the need for general deterrence. The Court concluded that no lesser sentence was warranted on the available material, including affidavits filed for the hearing.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where factors capable of constituting special circumstances are clearly present, a sentencing judge should explain why those factors do not justify departing from the statutory non-parole ratio, even though the legislation only requires reasons when special circumstances are actually found.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying an error in sentencing reasoning does not automatically lead to a lesser sentence being imposed on appeal.
  • A non-parole period will not be reduced on appeal where the existing period already represents the minimum that is appropriate to reflect the objective seriousness of the offences and the requirements of general deterrence.
  • Factors such as entrenched alcohol dependency, absence of prior rehabilitative supervision, and the offender's relatively young age are capable of constituting special circumstances, though their presence does not guarantee a reduced non-parole period in every case.
  • The Court noted that, at the time, approximately 87 per cent of the prison population had benefited from a special circumstances finding, citing R v Fidow [2004] NSWCCA 172, which reinforced the expectation that sentencing judges address the question with adequate reasons.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), ss 33, 59, 326(1)
- Justices Act (NSW), s 51A

Cases
- R v Fidow [2004] NSWCCA 172