New South Wales Court of Criminal Appeal CITATION : R v Hocking [2000] NSWCCA 339 FILE NUMBER(S) : CCA 60347/00 HEARING DATE(S) : 25 August 2000 JUDGMENT DATE : 25 August 2000 REGINA (Appellant) PARTIES : v ANTHONY PHILLIP HOCKING (Respondent) JUDGMENT OF : Beazley JA at 39; Smart AJ at 40; Ireland AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0150 LOWER COURT JUDICIAL Knight DCJ OFFICER : COUNSEL : A: Mr W G Dawe QC R: Mr M D Austin SOLICITORS : A: S E O'Connor R: Sydney Regional Aboriginal Corporation Legal Service CATCHWORDS : Criminal Law & Procedure - section 5DA Crown appeal against sentence - robbery in company - breach of undertaking to give evidence - re-sentence Criminal Appeal Act 1912, s 5DA LEGISLATION CITED : Crimes Act 1900, s 442B Crimes (Sentencing Procedure) Act 1999, s 23 CASES CITED: R v O'Brien (NSWCCA, unrep, 10/6/93) DECISION : Appeal allowed. Sentence Varied. See paragraph 38. IN THE COURT OF CRIMINAL APPEAL CCA 60347/00 BEAZLEY JA SMART AJ IRELAND AJ Friday, 25 August 2000 REGINA v ANTHONY PHILLIP HOCKING JUDGMENT 1 IRELAND AJ: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act, 1912 against the reduced sentence imposed upon the respondent by his Honour Judge Knight at the District Court at Griffith on 11 February 1999. 2 Section 5DA relevantly provides as follows:- (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking. (2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit. (3) … 3 On 1 February 1999, the respondent was indicted before Knight DCJ on one count of robbery in company pursuant to s 97(1) of the Crimes Act, 1900. The maximum penalty for an offence in contravention of this section is 20 years imprisonment. 4 At the time of the commission of the offence, the respondent was on a recognisance to be of good behaviour for 2 years, imposed on 12 September 1996 at Narrandera Local Court, for an offence of break, enter and steal. On 11 February 1999, his Honour sentenced the respondent to a minimum term of 2 years imprisonment commencing on 16 January 1999 and expiring on 15 January 2001 and an additional term of 12 months commencing on 16 January 2001 and expiring on 15 January 2002. 5 The sentence imposed on the respondent was made cumulative to six concurrent sentences of 9 months imprisonment for unrelated offences, including assault occasioning actual bodily harm and common assault, imposed on 14 August 1998 at Narrandera Local Court. 6 Knight DCJ recommended that no further action be taken in relation to the breach of recognisance. 7 In structuring the sentence to be imposed, his Honour indicated that, pursuant to s 442B of the Crimes Act, 1900, he would take into account the respondent's assistance and offer of assistance in relation to his co-offenders, Neville Bamblett and DB, both of whom had not, at that stage, been dealt with by the courts. The respondent had made a statement to police on 1 February 1999 concerning the involvement of both of those individuals in the offence. This statement was tendered and became Exhibit H. 8 On 11 February 1999, the respondent gave evidence before Knight DCJ during the proceedings on sentence. He identified his statement, Exhibit H, and was asked the following series of questions and gave the following answers:- "Q. In the statement you told the police about the part you played in the crime that's now before the Court? A. Yes. Q. And you also told the police about the part that a Mr Bamblett and a (DB) played, is that correct? A. Yes. Q. You're aware are you Mr Hocking that the judge when sentencing you may well take into account the fact that you have assisted the authorities? A. Yes. Q. And he may reflect that assistance in his sentence? A. Yes. Q. Do you tell his Honour on oath, that you, if required by the Crown, will give evidence at the trial of Mr Bamblett and (DB) in relation to this crime? A. Yes Q. And you tell his Honour on oath that the evidence you will give at that trial will be in accordance with the statement that you have made on 1 February 1999? A. Yes. Q. You are aware, are you not, Mr Hocking that should you fail to honour the undertaking that you've just given his Honour then the Crown would appeal the sentence that his Honour will impose, are you aware of that? A. Yes. Q. To the Court of Criminal Appeal and they will then re-sentence you because you have not stood by your undertaking, do you understand that? A. Yes. Q. But understanding that you do tell his Honour that you do propose giving evidence? A. Yes. Q. And you propose giving it in accordance with this statement? A. Yes." (T 10-11) 9 In cross-examination, at that time, the respondent was asked the following questions and gave the following answers:- "FOX: Q. Mr Hocking, you understand that it would require your attendance at any Court proceedings in relation to (DB) or Mr Bamblett? A. Yes. Q. And that may include committal proceedings, that is at the magistrate's court? A. Yeah. Q. And also maybe later in a District Court such as this? A. Yes. Q. And you are aware of the fact that the Crown can appeal - Mr Ritchie just asked you briefly before, the Crown can appeal any sentence you get on this matter if you fail to give the assistance that you have sworn that you will give? A. Yeah. Q. And you will give your assistance in accordance with the statement you've given to the police? A. Yes." (T 11) 10 In passing sentence, Knight DCJ, at pp 6-7 of his remarks on sentence, said this:- "The next matter that I wish to deal with is that you have chosen to make a statement to the police, which is exhibit H before me, dated 1 February 1999, which in effect has enabled the police to charge the other two persons who were with you the night that this robbery was committed, and who participated in it. It is apparent that on the information which was otherwise before the police, there would have been insufficient material in order to charge Mr Bamblett and DB. I understand that they are now to be charged, or indeed in at least one case may have already been charged since the information you gave. I take into account also the fact you have said before me that you will give evidence for the Crown in relation to the participation of those other two men in this offence. Pursuant to s 442B of the Crimes Act I take that offer of assistance into account and indeed the assistance that you have already given into account. I am required to form an opinion as to the significance and usefulness of your assistance. In my opinion, provided that you continue to give evidence in support of the Crown, and in accordance with the substance of the statement that you made on 1 February 1999, which is exhibit H, that assistance will be very considerable and without in any way precisely quantifying it I think I should indicate that had it not been for that assistance the sentence that I am about to impose on you, both in terms of minimum term and in terms of the overall sentence, would have been considerably longer." 11 His Honour went on to take into account the contrition and remorse which he considered a concomitant of the assistance which was given and proposed to be given to police and the consequence that such assistance would necessitate the respondent's sentence being served in protective custody. 12 All these aspects being taken into account, a sentence of 3 years imprisonment was imposed with a non-parole period (minimum term) of 2 years, to commence on 16 January 1999 and to expire on 15 January 2001. 13 Neville Bamblett was committed for trial on 11 November 1999, at which stage the statement made by the respondent on 1 February 1999 was handed up to the magistrate. These proceedings are still on foot with no hearing date as yet having been allocated. 14 On 13 April 2000, at Narrandera Children's Court, the respondent was called to give evidence in the committal proceedings against DB. 15 In contrast to the matters set out in his statement, Exhibit H, the respondent said that, on 19 February 1998 (the date of the offence), he had been in a park with several people but he was unable to name them. He was asked the following questions and gave the following answers:- "Q. Do you recall sitting in a park? A. Vaguely. Q. Do you know who you were in the park with? A. Several people. Q. Are you able to name any of those people? A. No. Q. Do you know the defendant now before the Court? A. Yeah, my cousin. Q. Are you able to say anything about him being anywhere on that night? A. No, I don't recall. Q. Are you able to tell us what you did after you'd been in the park? A. No, I can't remember. Q. Do you remember making a statement to the police on 1 February 1999? A. Yeah. Q. Your memory was okay when you made that statement? A. No actually it wasn't. Q. Have a look at this document? A. I don't want to see it. Q. Sorry? A. I don't want to see it. Q. Well just bear with me a minute, and I'll show it to you? A. Do I have to see this? If I don't want to see it do I have to see it? BENCH: Q. Just have a look at it, I mean that's all you're being asked to do at this stage. HALL: Q. That's a photocopy isn't it? A. Yeah. Q. Do you see your signature on there, copy of a signature? A. Yeah there's several there actually, yeah I see one, yeah. Q. Does that - is that your signature -- A. Yeah. Q. -- copy of it? A. Yeah. Q. Just take a moment, you can read okay I suppose can you? A. No, I'm illiterate. Q. If I was to get someone to read that over to you, and then I can ask you some more questions, okay? A. No I don't wish to answer any more of your questions. I'm pretty sure I made that clear when you come and seen me in the cells there. I didn't want to answer any of your questions, I didn't want to be here, right, so that's it, you know what I mean. As far as I'm concerned I'm not answering any more of your questions. Do what you've got to do, because that's it. Q. You don't want someone to read that statement over to you? A. No I don't. Q. And you tell the Court today, you tell his Worship that you can't recall what went on, on or about 19 February 1998? A. No. Q. After you were in the park? A. No I don't. I've been seeing psychs and all that there so do you think I'm all there. I'm pretty scattered around the head, so you know half the shit I don't want to remember. Q. Might I remind you of your evidence you gave his Honour Judge Knight, you remember that don't you? A. Pardon. Q. Might I remind you of the evidence you gave Judge Knight? A. There was no evidence there to Judge Knight. All Judge Knight asked me, if I do recall, which I don't think I do, but anyway he just said 'If I return back to Court do such and such, if not we re-sentence you' or whatever. Q. So you're aware of what he told you? A. Yeah I do. Q. And that doesn't assist your memory at all today? A. No it don't. Q. So you tell the Court apart from what, being in the park, you've got no memory of anything after that? A. No. Q. And looking at that document's not going to help you? A. No. Q. And you don't want anyone to read it over to you? A. No. Q. If it was read over to you do you think it might help you? A. I just said 'No' to you, you know what I mean, I don't want it read to me, I don't want to remember anything, you know what I mean. I've finally got myself settled where I am, you know what I mean. I've finally forgot about the past. You're going to drag me back here and bring it up, I don't want to know about the past, you know what I mean. Last two and a half fucking years of my life I've been sitting in a correctional centre being treated like a fucking animal. Do you think I'm going to come here now and have you speak to me, you know what I mean, tell me this, tell me that. I've already told you 'No that's it', right, you know what I mean. All my life I've had people treat me like I'm some fucking animal, you know what I mean. Then youse wonder why people act like animals, you know what I mean. So just accept my word 'No' and please either do what you're going to do, or let me go back to the gaol where I feel more comfortable please." 16 DB was subsequently discharged. 17 The facts relating to the offence upon which the respondent pleaded guilty and was sentenced may be briefly summarised as follows. 18 The victim who was 56 years of age, on 19 February 1998 at about 10.30pm, was walking to his motel near Narrandera Park, where the respondent and a number of others, including Neville Bamblett and DB, were drinking moselle. 19 Neville Bamblett followed the victim along the road. DB was observed to whisper in the respondent's ear. These two men then ran off in the direction which Neville Bamblett had taken. 20 The victim recalled being asked for a cigarette by a fit-looking male aged between 18 and 20 years. He sensed that something was wrong when he saw another person close by. The victim was unable to recall anything else. 21 The victim was robbed of his wallet containing $10 or $20 as well as other personal items and cards. He was later found by a passer-by gurgling on the side of the road. 22 The victim was treated in hospital for various injuries, which included extensive facial fractures and compression of the airways. He remained in hospital for ten days following surgery. 23 The respondent was also hospitalised on the night of the attack after a car accident. Blood on the toe area of his right boot matched the DNA profile of the victim's blood. 24 The respondent said that he saw the victim on the ground being kicked in the head by Neville Bamblett and in the rib area by DB. 25 The respondent pushed Neville Bamblett away and told him, "That's enough, just grab the wallet and let's go". The respondent grabbed the victim's wallet, despite the victim putting his hand back to stop this happening. 26 The three men, at the suggestion of the respondent, later drove a car from the backyard of someone known to the respondent. This car was involved in an accident. 27 The respondent denied kicking the victim and he could not say how blood came to be on his right boot. 28 There were no other witnesses to the offence. 29 Subjectively, the respondent is of Aboriginal descent and was born on 3 January 1974. He has an extensive criminal history which includes eleven offences of break, enter and steal dating from 1985, one of which is an offence of aggravated break and enter and commit felony in company. There are a number of other violent offences, including numerous offences of assault and four offences of assault occasioning actual bodily harm. On 2 April 1992, the respondent was sentenced for an offence of assault and robbery in company, to a minimum term of 6 months imprisonment and an additional term of 6 months. He has also been convicted several times of malicious damage and stealing. 30 A report of a senior psychologist, Dr Roger Blake, dated 5 February 1999, discloses that the respondent has a long history of poly-drug abuse. He has no definite employment history and his relationship with his de facto wife and two young children is apparently over. In Dr Blake's view, the respondent has a "rather poor prognosis". He is described as "… a typical recidivistic individual who has little interest in addressing his offending behaviour whilst he has been in custody". Dr Blake observed the respondent to be someone who "may be prone to violent and impulsive outbursts with little thought of consequence". He expressed the opinion that the respondent is "an institutionalised individual". 31 Whilst Dr Blake was of the opinion that the respondent did not have any psychiatric indicators, he noted that it was likely that the respondent fell within the "aggressive and anti-social personality disorder range". A minimal level of alcohol related brain damage was also foreseen due to the respondent's dependence on alcohol. 32 Where a person undertakes to assist the authorities by giving evidence for the Crown at a pending trial and is treated leniently on sentence in consequence but fails to give such evidence, s 5DA has application. 33 The purpose of the section is not punitive but is directed towards enabling this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where a sentencing process can be seen, with benefit of hindsight, to have miscarried by reason of the circumstances set out in the section: see R v David Robert O'Brien (NSWCCA, unreported, 10 June 1993, per Gleeson CJ). 34 The evidence given by the respondent, at the time of sentence, makes plain his awareness of the consequences, should he fail to give evidence in accordance with his statement as undertaken by him before Knight DCJ. His evidence before Magistrate O'Donaghoe, in the Children's Court at Narrandera on 13 April 2000, equally makes plain that the respondent is not prepared to honour his undertaking, regardless of the consequences which he clearly recognised to be his re-sentencing. 35 Although proceedings against Neville Bamblett remain extant, there can be little doubt that the respondent will maintain his present attitude and this has been confirmed by his counsel in proceedings before us today. Even if he does not, the sworn evidence he has given in the Children's Court, as to his memory loss and claimed inability to recall the names of any persons or any events associated with the offence in question, would render any future testimony he may give virtually valueless. 36 The enactment of s 442B of the Crimes Act, 1900, and its successor, s 23 of the Crimes (Sentencing Procedure) Act, 1999, has provided an important tool in the administration of justice. This Court should be vigilant to ensure the imposition of a sentence which, so far as possible, excises the discount which the respondent received. 37 In the present case, there is an element of discount related to past assistance given by the respondent which I assume to be the identification of the assailants. However, even this assistance is valueless when the respondent fails to give his evidence as promised. 38 I would propose the following orders:- 1. The appeal be allowed. 2. Pursuant to s 5DA, the sentence imposed on the respondent by Knight DCJ, on 11 February 1999, is varied by increasing the sentence to 4 years imprisonment deemed to have commenced on 16 January 1999 and to expire on 15 January 2003. 3. There will be a non-parole period of 2 years and 9 months imprisonment expiring on 15 October 2001, upon which date the respondent will be eligible for release on parole. 39 BEAZLEY JA: I agree with Ireland AJ. 40 SMART AJ: I agree with Ireland AJ. ********** 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.