Regina v Cocking [1999] NSWCCA 311

Regina v Cocking [1999] NSWCCA 311

Read fairly in context, the sentencing judge's references to the assaults occurring in the victims' home and to "home invaders" did not show that she punished the applicant for a more serious offence or took into account impermissible aggravating circumstances contrary to De Simoni. However, the sentences were manifestly misdated because the applicant had six months and 26 days of relevant pre-sentence custody and backdating only to 9 December 1998 did not allow the full period. The appeal was therefore allowed only to correct the dating of the sentences, which were quashed and reimposed on the same substantive terms with corrected commencement dates.

Jurisdiction
Australia
Judgment Date
29 September 1999
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal allowed to the extent of correcting manifest error in the dating of the sentences; sentences quashed and reimposed.
Legal Topics
['malicious Wounding' 'assault Occasioning Actual Bodily Harm' 'de Simoni Principle' 'pre Sentence Custody' 'backdating of Sentences' 'criminal Appeal Act 1912 (nsw) S.6(3)']
['criminal Law' 'sentencing' 'criminal Procedure'] ['malicious Wounding' 'assault Occasioning Actual Bodily Harm' 'de Simoni Principle' 'pre Sentence Custody' 'backdating of Sentences' 'criminal Appeal Act 1912 (nsw) S.6(3)']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account aggravating circumstances amounting to a more serious offence, contrary to Regina v De Simoni (1981) 147 CLR 383, by referring to the offending as involving entry into a home and to "home invaders".' 'Whether the sentences were wrongly dated by failing to account for all relevant pre-sentence custody.' 'If legal error were shown, whether a less severe sentence was warranted in law under the Criminal Appeal Act 1912 (NSW).']

Ratio Decidendi

Read fairly in context, the sentencing judge's references to the assaults occurring in the victims' home and to "home invaders" did not show that she punished the applicant for a more serious offence or took into account impermissible aggravating circumstances contrary to De Simoni. However, the sentences were manifestly misdated because the applicant had six months and 26 days of relevant pre-sentence custody and backdating only to 9 December 1998 did not allow the full period. The appeal was therefore allowed only to correct the dating of the sentences, which were quashed and reimposed on the same substantive terms with corrected commencement dates.

Court Disposition

Leave to appeal against sentence granted; appeal allowed to the extent of correcting manifest error in the dating of the sentences; sentences quashed and reimposed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed to the extent of correcting manifest error in the dating of the sentences.' 'The sentences imposed below were formally quashed and reimposed.' 'On count 1, the applicant was sentenced to penal servitude for four years, divided between a minimum term of two...