Regina v Hockey [1999] NSWCCA 149

New South Wales Court of Criminal Appeal CITATION : Regina v Hockey [1999] NSWCCA 149 FILE NUMBER(S) : CCA 60245/98 HEARING DATE(S) : 9 June 1999 JUDGMENT DATE : 9 June 1999

PARTIES : Regina v Stephen Richard Hockey JUDGMENT OF : Grove J at 1; Carruthers AJ at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0103 LOWER COURT JUDICIAL OFFICER : McGuire DCJ

COUNSEL : P. G. Berman (Crown) P. M. Strickland (Applicant) SOLICITORS : C. K. Smith ( Crown) T. A. Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - Assault with intent to rob whilst armed - Sentence CASES CITED: R v Henry & Ors (1999) NSW CCA 111 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60245/98

Grove J Carruthers AJ

9 June 1999

REGINA v STEPHEN RICHARD HOCKEY

JUDGMENT

1 GROVE J : This is an application for leave to appeal against the severity of sentence imposed upon the applicant by McGuire DCJ at the Gosford District Court on 1 May 1998. On that occasion the applicant adhered to a plea of guilty previously given to a magistrate on a charge of assault with intent to rob whilst armed with an offensive weapon contrary to s 97 of the Crimes Act. That offence carries a prescribed maximum penalty of twenty years penal servitude. 2 His Honour sentenced the applicant to a total term of five years penal servitude comprising minimum and additional term components of three and two years respectively. Accordingly, his Honour granted the applicant the benefit of a potentially longer time out of custody on parole than would be the case if the proportions mentioned in s 5(2) of the Sentencing Act were applied. No challenge was made to his Honour's finding of special circumstances justifying departure from the statutory formula. 3 The facts of the offence were set out in a statement tendered by consent in the District Court which were incorporated in the learned Judge's remarks on sentence. I will not repeat the entire content thereof and a short sketch will suffice for present purposes. 4 At about 8.30pm on a Saturday evening the applicant walked into a pharmacy which was tended by the seventy year old wife of the pharmacist. The applicant demanded money and produced a pocket knife which he brandished in response to the victim's refusal to open the till accompanying his actions by threats to "cut her". He tried to open the till by forcing it with the blade. 5 The victim's husband who was presumably of similar years came from the rear of the store in response to the commotion and the applicant fled. Hue and cry was raised and an off duty policewoman who was walking in company with her boyfriend apprehended the applicant and placed him under arrest. The knife was found in his pocket. 6 The applicant had some prior record including convictions for administering a prohibited drug (heroin) and possessing a prohibited drug (cannabis) in 1986. In 1995 he was placed on a recognizance to be of good behaviour for three years for an offence of breaking, entering and stealing. That recognizance was current at the time of the present offence. 7 It is convenient to deal with a written submission on behalf of the applicant which asserts that: "There is only one aggravating factor - the applicant was on a bond at the time of the offence. That is not a significant aggravating factor in this case because the three year recognizance imposed on 5 April 1995 had almost been completed at the time of the offence on 7 February 1998."