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. There was a short verbal exchange between Ms TODD and the accused after which, he kicked out at Ms TODD striking her in the chin and causing a 4cm laceration which went through to the inside of the mouth. Ms TODD was knocked unconscious by the blow and was left laying on the floor. The accused then approached the victim WALSH and stated, "What are you going to do about that?" The accused then began to punch him in the face a number of times with a closed fist and kicking him to the body. The accused said to Mr WALSH, "I'm going to kill you." At this point, one of the men with the accused dragged him away from WALSH stopping the assault. The accused then made his way to another room of the house whilst the man HANDSAKER dragged Mr WALSH out of the house to the front lawn where he assaulted him by punching him around the head. The man HANDSAKER then demanded that Mr WALSH phone a taxi and allowed him to return to the house. As Mr WALSH attempted to make the call HANDSAKER removed the telephone from its wall mounting and struck him on the left shoulder with it before commencing to whip him with the telephone cord. The accused, Martin COCKING, had returned to the room at this point and had begun to strike Ms TODD about the body as she lay unconscious on the floor. Both Ms TODD's children had been woken by the occurrence. Mr WALSH was able to escape the continued assault by the man HANDSAKER and he fled the house, running to the nearest home where he saw lights. Mr WALSH contacted police and told them of the incident. Whilst police travelled to the home, he accused and his companions left the home. When police arrived at the home they found Ms TODD in her bed with her two children. Ms TODD was senseless and refused any assistance despite the seriousness of her injuries. An ambulance was summoned by police and Ms TODD was convinced to go to Manilla Hospital for treatment. Ms TODD later indicated that she could not recall events from the time that she was initially kicked in the face until the time ambulance officers arrived at her home. The accused was located with the man HANDSAKER the following afternoon at a property near the village of Watsons Creek. The accused was conveyed o the Manilla Police Station where he was spoken to in relation to the matter. The accused and the man HANDSAKER declined to answer any questions, take part in an ERISP or make any written statement in relation to the matter. As a result of the incident, Mrs TODD received the following injuries, full depth laceration to the chin an undisplaced fracture of the nose abrasion under chin haematoma to the right eye bruising to the right eye bruising to the upper and lower arms bruising to the lower back linear abrasion to the centre of the back swelling to the left side of the face contusions to several areas on top of the head Ms TODD's companion Mr WALSH received the following injuries, bruising to both eyes bruising to the left ear contusions to the head swelling of both wrists." 10 Two things can be said at once. The first is that these particular injuries were serious injuries. Nobody could contend reasonably to the contrary, in my opinion. 11 It follows that the offences that gave rise to the injuries were, on their objective facts, serious in high degree. 12 Her Honour, in the course of her remarks on sentence, and having adverted to the seriousness of the objective facts, made the following remarks which are the subject of one, in particular, of the grounds now relied upon by the applicant: "To attack a person is simply awful, but to enter the privacy of a person's house and to commit despicable acts of violence upon those occupants is serious indeed. The incidents of this type of crime seems to be ever increasing and it becomes common place that angry, drunk ex partners seem to think that they have a right to enter the premises of their former partners and to meter out what they perceive to be punishment for the decision to terminate, obviously with justification, the relationship. The community has a rightful expectation that offenders will be dealt with severely by sentencing officers. Other would be home invaders and violent ex partners are to be deterred." 13 It is submitted that these remarks of her Honour manifest error of law of the kind dealt with by the High Court of Australia in the decision: Regina v De Simoni (1981) 147 CLR 383. It will be appropriate to say, presently, something more about that submission; but before doing so it seems to me that an appropriate starting point is to be found, not in the De Simoni decision, but in a much older decision of this Court: R. v Johnson [1917] 17 SR (NSW) 481. 14 In that matter Pring J, who presided over the particular Bench of the Court, made the following observations, with which the other members of the Court concurred: "And we who sit here to hear criminal appeals know that there is nothing more common than for a judge's summing-up to be microscopically examined after the trial in order to find some expression or phrase, which perhaps the judge, if he had had time to consider, would not have used; but it is only where the court can see that a miscarriage of justice has occurred from a mistake in the summing up that they will set aside the conviction. For myself, I protest against such criticisms of a judge's summing-up, because, although I have had a long experience on the bench, I know that it is almost impossible for a judge, either in a civil or a criminal case, to choose his words with perfect accuracy. In almost any case he is likely to make some little slip, by using an expression perhaps a little too strong or a little too weak." (See at pp 483 and 484; and see to the same effect R. v Sorlie [1925] 25 SR (NSW), 532 at 539.) 15 I do not see any basis in principle for not applying to the remarks of a Judge passing sentence, the same criteria as those to which the Court referred all those years ago in connection with a Judge's summing-up in a criminal case. 16 The principles established by the decision in De Simoni can be encapsulated, for present purposes, in the following brief excerpt from the judgment of Gibbs CJ at 147 CLR 389: " The general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle that no-one should be punished for an offence of which he has not been convicted The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggregate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 17 I do not understand the submissions now made for the applicant to dispute that the sentencing Judge was entitled to take, on the objective facts of the particular case, a severe view as to the criminal culpability of what was done by the applicant. As I have followed the submissions, they proceed upon the basis that her Honour's reference, in particular, to "home invaders", and her Honour's references, otherwise, to the fact that the offences had been committed in what her Honour described as "the privacy of a person's house" entail that her Honour took into account circumstances of aggravation which went, as a matter of substance, not to the offences with which she was dealing, but with other, and more serious, offences for which provision is made in different sections, and in different Parts, of the Crimes Act. 18 It seems to me that a fair reading in context of what her Honour is recorded as having said, cannot support such a submission. For myself, I think it would be stretching artificiality to a wholly unacceptable point in principle to propound that her Honour was not entitled to take into proper account not only that the victims had been seriously assaulted, but had been seriously assaulted in the one place where they might have expected to be comparatively safe, namely at home, going about their own lawful affairs. 19 It can be allowed readily enough that having regard, in particular, to recent statutory amendments intended to punish with accentuated severity "home invations", in the sense in which I think most people would understand that expression, it is desirable that sentencing Judges be, to say the least, extremely careful about any use of the words "home invaders" or "home invasion"; but it does not follow that in a case such as the present, - the material facts of which, after all, were perfectly straightforward, - the mere appearance in a particular passage, taken out of a larger body of remarks on sentence, of the words "home invaders" or "home invasion", without more, conjures into being an error of law of the kind at which I think the High Court was aiming in what it said in De Simoni. For myself, I do not think that the contrary submission has been made good. 20 A second submission of substance is taken regarding the way in which her Honour dated the sentences that her Honour imposed. Her Honour backdated the sentences to 9 December 1998. That was the date upon which pleas were entered to the particular indictment, and on and after which the applicant remained in custody. bail refused. 21 There is no doubt that in fact the applicant had been in relevant pre-sentence custody for a period of six months and 26 days. I do not think that there is present profit in arguing in fine detail, this way and that, whether or not her Honour took that period into account. It seems to me that on a fair view of what she is recorded as having said and done, it is reasonably possible that her Honour, - may I say for perfectly understandable reasons, given the way in which the relevant material was put before her, - was misled into thinking that a backdating to 9 December 1998 did in fact allow the entirety of the six months and 26 days of relevant pre-sentence custody. Plainly, on the available and undisputed facts that was not the case. I think, therefore, that it would be appropriate for this Court to make the necessary correction to the dating of the sentences. Presently I will propose orders intended to give effect to that point of view. 22 I would wish to add for myself simply this: The decision in De Simoni is, as I respectfully think, not an easy decision to apply in particular cases. If it be the case that the view that I have about its application in the present matter is incorrect, so that error in law has been demonstrated on the part of the sentencing Judge. I myself would then think it wholly appropriate to give proper effect to the relevant provision of the Criminal Appeal Act which enjoins this Court to consider for itself whether or not a different sentence, be it a greater or a lesser one, is "warranted in law". In that regard I respectfully agree with what was said by Lee AJ in The Queen v Stephen Lorne Astill (No 2) (1994) 64 A Crim R 289. At 303-304 his Honour says: "When an appeal is brought to the court under s.5(1) it may well be that the court will consider the sentence passed to be `warranted in law' even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features or his selection of the substantial matters which guide him to his conclusions. In such a case the appeal fails. Even when the court concludes that the judge has made a mistake of law the court may still hold that the sentence is not excessive and should stand. A good illustration of such a case is Oastler (unreported) CCA (NSW) 7 October 1992." 23 It is not necessary to refer in detail to the decision in Oastler, except perhaps to say this: Oastler was a case in which it was clearly demonstrated that the sentencing Judge had made significant, and very important, errors of law in that Judge's perception of the operation of relevant sections of the sentencing code, if I may so describe it, now embodied in the Commonwealth Crimes Act. Lee AJ was himself a member of the Court in Oastler and spoke to the same effect as the remarks that I have quoted from his Honour's judgment in Astill (No 2). It is perhaps worthy of note that the then Chief Justice, while agreeing with Lee AJ, added for himself a brief statement in which his Honour said: "I agree with the orders proposed by Lee AJ and, in particular, I agree that although the applicant has succeeded in demonstrating that some of the steps involved in the process of reasoning of the learned sentencing judge involved some misapprehension on his Honour's part as to the effect of the relevant legislation, nevertheless the sentence ultimately imposed was not excessive." 24 I would wish to say emphatically for myself, that if, and insofar as, it were to become necessary for me to consider in this case that question, I would unhesitatingly be of the view that a more lenient sentence was not "warranted in law". I say again: the offences here were, in my view, of the most serious kind on their given objective facts; and the subjective matters proper to the applicant, although not without force, and deserving of a proper place in the relevant scheme of things, cannot, in my view, fairly have the effect of entailing that a sentence of a lesser severity than that imposed was "warranted in law". For the whole of those reasons I would favour the following orders: 1. That leave to appeal against sentence be granted. 2. That the appeal be allowed, to the extent of correcting manifest error in the dating of the sentences. 3. That, to that end the sentences imposed below be formally quashed and reimposed in the following terms: On count 1 in the indictment, the applicant is sentenced to penal servitude for four years, divided between a minimum term of two years and six months, and an additional term of one year and six months, the minimum term to commence on 4 September 1998 and to terminate on 3 March 2001; the additional term to commence on 4 March 2001. As to count 2, that the applicant be sentenced to a fixed term of penal servitude of 12 months to commence on 4 September 1998. 25 I propose those orders accordingly. 26 SPIGELMAN CJ: I agree with the orders proposed by Sully J and the reasons he has given for those orders. I also wish to associate myself with his Honour's remarks on the proper construction of s.6(3) of the Criminal Appeal Act 1912. 27 Counsel for the applicant relied, for a proposition that this court should, in some way, feel constrained by what the trial judge would have done if she had not made the error for which he contended, based on the principles in De Simoni, in the last sentence of the following passage in the joint judgment of Hunt CJ at CL and Badgery-Parker J in Regina v Frederick Thomas Thorpe NSW Court of Criminal Appeal (unreported) 17 December 1992: "We are accordingly unable, with respect, to agree with the suggestion made by Mahoney JA that the judge may not have infringed that principle [ie the De Simoni principle] nor are we able to agree with his view that the sentence imposed by the judge remained an appropriate one, despite the error which Mahoney JA thereafter assumed in favour of the applicant. If that is what the sentencing judge thought was appropriate, having taken into account aggravating circumstances, which artificially he was not permitted to take into account, it is obvious that he would have imposed a lesser sentence if he had disregarded those circumstances." 28 Their Honours went on to impose a lesser sentence than that imposed by the trial judge. However, I do not understand that their Honours felt in any way constrained, when imposing that lesser sentence, by what they understood the trial judge would have done. Rather, as I understand the balance of the reasons in the case of Thorpe, their Honours were exercising the sentencing discretion afresh. That appears from the last sentence of the very next paragraph after that which I have quoted above, where their Honours said: " In our view a sentence which would be appropriate to the facts which are properly to be taken into account is one of 14 months comprising a minimum term of penal servitude for 13 months and an additional term of 10 months." (Emphasis added). 29 The reference to the emphasised words "in our view", make it clear, in my opinion, that in Thorpe their Honours were exercising a sentencing discretion afresh and applying s.6(3) of the Criminal Appeal Act, with the effect that their Honours formed the opinion that the sentence which they imposed, being one that was "less severe" than that imposed by the trial judge, was "warranted in law". Accordingly in my opinion the reasoning in Thorpe does not detract in any way from the approach to the proper construction of s.6(3) adumbrated in the judgment of Sully J. 30 GROVE J: I also agree with Sully J. I agree with the additional remarks of the Chief Justice. 31 SPIGELMAN CJ: The orders of the court are as indicated by Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.