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6
Court of Criminal Appeal 20 July 2018

R v Hookey

[2018] NSWCCA 147

Assault & violence
CRIMINAL LAW SENTENCE APPEAL CROWN APPEAL WOUND WITH INTENT IMPERMISSIBLE TO DOUBLE COUNT MANIFEST INADEQUACY

Citation: R v Hookey [2018] NSWCCA 147
Court: Court of Criminal Appeal, New South Wales
Date: 20 July 2018
Judge(s): Hoeben CJ at CL; Rothman J; Button J

Background

The respondent was sentenced in the District Court of New South Wales for wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900. The offence arose from a road rage incident in which the respondent pursued another vehicle, then stabbed the unarmed victim three times with a knife and kicked him while he was on the ground. The victim sustained serious injuries, including a wound to the forearm requiring surgical repair and a chest wound resulting in hemopneumothorax (blood and air in the chest cavity).

The sentencing judge imposed a head sentence of 3 years and 8 months' imprisonment, with a non-parole period of 2 years and 2 months. Special circumstances were found, which allowed the non-parole period to be reduced below the standard proportion.

The Crown appealed on two grounds: that the sentencing judge failed to treat the use of a weapon as a statutory aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, and that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred by failing to formally apply the use of a weapon as an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the sentence imposed was manifestly inadequate given the objective seriousness of the offence, the offender's criminal history, and the applicable maximum penalty and standard non-parole period.
  • Whether, even if error were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and re-sentence the respondent.

Decision

Ground 1: Failure to aggravate for weapon use

The sentencing judge had expressly stated that the use of a weapon was "inherent in the offence" and declined to treat it as an aggravating factor. However, the Court of Criminal Appeal found that the judge had, in practice, taken the weapon into account when assessing the objective criminality of the offence. Because double-counting an aggravating factor is impermissible, no appellable error arose from this approach. The sentencing judge's characterisation was technically incorrect, but the underlying reasoning did not produce legal error.

Ground 2: Manifest inadequacy

All three judges agreed that the sentence imposed was manifestly inadequate. The sentence appeared to reflect insufficient regard for the maximum penalty and the standard non-parole period applicable to this offence. Taking into account the objective seriousness of the offending, the respondent's criminal history (including prior convictions for serious violence), and the fact that he was on conditional liberty at the time, the sentence fell outside the available range.

Residual discretion not to intervene

Despite finding manifest inadequacy, the Court declined to intervene. Rothman J identified the respondent's significant rehabilitation and genuine insight into his offending as the decisive considerations. The Crown bore the onus of demonstrating that the residual discretion should not be exercised in the respondent's favour, and the Court was not persuaded that it had discharged that onus. Hoeben CJ at CL and Button J agreed with that conclusion.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentencing judge who considers weapon use in assessing objective seriousness, without separately listing it as a statutory aggravating factor, does not necessarily fall into error: applying it twice would constitute impermissible double-counting.
  • Even where the Court of Criminal Appeal finds a sentence manifestly inadequate, it retains a residual discretion to dismiss a Crown appeal and decline to re-sentence the offender.
  • The abolition of double jeopardy considerations under s 68A of the Crimes (Appeal and Review) Act 2001 removes distress and anxiety as a basis for exercising the residual discretion, but does not extinguish the discretion itself, as confirmed in R v JW and Green v the Queen; Quinn v the Queen.
  • Significant post-sentence rehabilitation can constitute a sufficient basis for the Court to exercise its residual discretion against intervention, even where the original sentence is found to be outside the permissible range.
  • The purpose of Crown appeals, as restated here, is to establish sentencing principles for the governance and guidance of courts, rather than to guarantee a heavier sentence in every case where error is found.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases
- Green v the Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Newman v R [2015] NSWCCA 270