Regina v Cocking [1999] NSWCCA 311

New South Wales Court of Criminal Appeal CITATION : Regina v Cocking [1999] NSWCCA 311 FILE NUMBER(S) : CCA 60174/99 HEARING DATE(S) : 29 September 1999 JUDGMENT DATE : 29 September 1999

PARTIES : Regina Martin James Cocking JUDGMENT OF : Spigelman CJ at 26; Grove J at 30; Sully J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/31/0446 LOWER COURT JUDICIAL OFFICER : English DCJ

COUNSEL : L.M.B Lamprati - Crown P.J.D Hamill - Applicant SOLICITORS : D.P.P NSW Legal Aid Commission of NSW CATCHWORDS : Crimes Act 1900 (NSW) ACTS CITED : Criminal Appeal Act 1912 (NSW) Commonwealth Crimes Act 1914 CASES CITED: Regina v De Simoni (1981) 147 CLR 383; Regina v Johnson [1917] 17 SR (NSW) 481; Regina v Sorlie [1925] 25 SR (NSW), 532 at 539; The Queen v Stephen Lorne Astill (No. 2) (1994) 64 A Crim R 289; Regina v Oastler, unreported, CCA (NSW) 7/10/92; Regina v Frederick Thomas Thorpe NSWCCA, unreported, 7/12/92 DECISION : Leave to appeal against sentence granted; appeal allowed to extent of correcting manifest error in dating of sentences; sentences quashed and reaffirmed.

IN THE COURT OF CRIMINAL APPEAL

60174/99

SPIGELMAN CJ GROVE J SULLY J

29 September 1999

REGINA v Martin James COCKING

JUDGMENT

1 SULLY J: On 9 December 1998 the present applicant, Mr Martin James Cocking, entered in the District Court pleas of guilty to two counts in an indictment which had been presented against him. 2 The first count charged the applicant with malicious wounding, an offence contravening s.35 (a) of the Crimes Act 1900 (NSW) attracting, upon conviction, a statutory maximum penalty of penal servitude for seven years. 3 The second count charged the applicant with assault occasioning actual bodily harm, an offence contravening s.59 of the Crimes Act and attracting upon conviction, a statutory maximum penalty of penal servitude for five years. 4 In due course, and on 29 March 1999, the applicant appeared before her Honour Judge English, sitting in the Tamworth District Court. He adhered to his pleas of guilty, and her Honour heard, thereupon, evidence and submissions. 5 On the following day, 30 March 1999 the applicant stood for sentence before her Honour. 6 Upon count 1 the applicant was sentenced to penal servitude for four years apportioned between a minimum term of two years and six months, and an additional term of 18 months. 7 Upon count 2 the applicant was sentenced to a fixed term of penal servitude for 12 months, dated in such a fashion as to run concurrently with the sentence imposed upon the first count. 8 It will be necessary a little later to return to the question of the proper dating of those sentences. 9 The relevant facts are set out as follows in the Police Facts Sheet, which was part of the material tendered without objection to the learned sentencing Judge: "On the evening of 4 September, 1996, Ms Deborah TODD was at her home at 198 River Street, Manilla with a friend, Phillip WALSH. About 9.45pm that evening, after having a meal with Mr WALSH, Ms TODD was sitting on the floor in the lounge room in front of a fire watching television. Mr WALSH was sitting on a chair and Ms TODD's two children were laying on a lounge. At this time the accused, Martin James COCKING, entered the room. The accused was in the company of his 16 year old brother, Clinton COCKING and another man, Wayne Kenneth HANDSAKER. At the time of entering the home, the accused was in possession of a stick which was located in his rear pocket. The man HANDSAKER was in possession of an RTA guidepost.