AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 14 July 2004

REGINA v LEONARD WILLIAM HOSKINS

[2004] NSWCCA 236

Assault & violence
CROWN APPEAL MANIFEST INADEQUACY CRIMES ACT 1900 S33 MALICIOUS WOUNDING WITH INTENT ASSAULT BY CONVICTED INMATE PARTIAL CONCURRENCE

Citation: Regina v Leonard William Hoskins [2004] NSWCCA 236
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2004
Judge(s): Giles JA, Levine J, Hulme J

Background

The respondent, a convicted prisoner serving time for aggravated robbery, attacked a newly arrived inmate at Grafton prison in December 2002. He entered the victim's cell demanding tobacco, returned with a sharpened screwdriver-like weapon concealed with masking tape, stabbed the victim near the kidney, and then returned again to punch him repeatedly around the head and face. The victim suffered a puncture wound, a laceration requiring sutures, and other injuries.

The respondent pleaded guilty on arraignment at the Lismore District Court in July 2003 to malicious wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment. In November 2003, Ellis DCJ sentenced him to six years imprisonment with a four-year non-parole period.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing that the sentence imposed by the District Court was manifestly inadequate. The central point was that the practical effect of the sentence, when considered alongside the existing Freeman DCJ sentence for aggravated robbery, was that the respondent would serve only two additional years before becoming eligible for parole.

  • Whether the sentence imposed by Ellis DCJ was manifestly inadequate in all the circumstances.
  • Whether the discounts applied (25% for plea and a further 15% for partial admissions to police) were appropriate, particularly whether partial admissions to police can properly constitute "assistance to authorities" warranting a sentencing discount.
  • Whether the degree of concurrence ordered between the new sentence and the existing Freeman DCJ sentence was appropriate.
  • Whether the Court of Criminal Appeal should exercise its residual discretion against resentencing, having regard to the principle of double jeopardy.
  • What weight, if any, should be given to fresh evidence (affidavit material from the respondent) tendered on resentencing.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentence imposed in the District Court was manifestly inadequate. The practical effect of the original sentence was that the respondent faced only two additional years of actual custody for a serious, planned attack with a weapon on a defenceless new inmate. This outcome failed to adequately reflect the gravity of the offence or the principles of general deterrence, which the Court noted apply with particular force to violence committed within a prison environment.

The Court examined the discount of 15% for "assistance to authorities." The respondent's admissions to police were partial: he admitted punching the victim but denied using a weapon. His more complete admissions (acknowledging the use of metal) were made to his parole officer rather than investigating police. The Court found these partial admissions did not constitute assistance to authorities of the kind that would ordinarily warrant a discount, and that Ellis DCJ had erred in treating them as such.

On the question of concurrence, the Court found that the extent of overlap between the new sentence and the existing Freeman DCJ sentence was excessive. Giles JA expressed the view that total cumulation would have been appropriate given the seriousness of the offence and the demands of deterrence, though the majority declined to go that far and imposed partial concurrence. The Court also considered the respondent's affidavit tendered on resentencing, covering participation in prison courses and expressions of shame, but found it did not provide sufficient reason to exercise the residual discretion against resentencing, nor to further reduce the sentence beyond the adjustment for double jeopardy.

The resentence was structured so that the six-year term commenced on 14 November 2004, one year later than the original commencement date, which had the practical effect of increasing the respondent's actual additional period of custody from two years to three years.

Orders Made

  • Appeal allowed.
  • Sentences imposed in the District Court on 14 November 2003 are set aside.
  • The respondent is sentenced to imprisonment for 6 years commencing 14 November 2004 and expiring 13 November 2010, with a non-parole period of 4 years commencing 14 November 2004 and expiring 13 November 2008.

Key Takeaways

  • Partial admissions to police that are self-serving and incomplete do not readily qualify as "assistance to authorities" for the purpose of attracting a sentencing discount. The 15% discount applied by the District Court for this reason was found to be in error.
  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999, the degree of concurrence between consecutive sentences imposed on a convicted inmate must still reflect the objective gravity of the subsequent offence, particularly where that offence involved deliberate, planned violence.
  • The Court of Criminal Appeal confirmed that general and specific deterrence carry heightened weight in sentencing for violence committed by prisoners against other prisoners within custodial settings.
  • In resentencing after a successful Crown appeal, the double jeopardy principle requires that some moderation of the fresh sentence be applied, but that principle does not override the obligation to impose a sentence that is at least the minimum properly warranted by the circumstances.
  • Fresh affidavit evidence tendered by a respondent on resentencing will not automatically attract significant weight; in this case, expressions of remorse that were qualified by partial excuses for the conduct carried limited mitigatory value.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 56
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Regina v Armstrong [2000] NSWCCA 14
- Regina v Bavadra (2000) 115 A Crim R 152
- Regina v Cartwright (1989) 17 NSWLR 243
- Regina v Dodd (1991) 57 A Crim R 349
- Regina v Ellis (1986) 6 NSWLR 603
- Regina v Fyffe [2002] NSWSC 751
- Regina v PPB [1999] NSWCCA 360
- Regina v Reynolds [2004] NSWCCA 51
- Regina v Thomson & Houlton (2000) 49 NSWLR 383