R v Hocking [2000] NSWCCA 339

R v Hocking [2000] NSWCCA 339

The respondent's sentence had been reduced because he undertook on oath to give evidence against co-offenders in accordance with his police statement, and he was plainly aware that failure to do so could lead to re-sentencing. His evidence in the Children's Court, including his refusal to answer further questions and claimed inability to recall relevant events, showed that he was not prepared to honour the undertaking; any future testimony would be virtually valueless. The Court therefore varied the sentence under s 5DA to remove, so far as possible, the discount given for the promised assistance.

Jurisdiction
Australia
Judgment Date
25 August 2000
Procedural Posture
Crown Appeal Against Sentence Pursuant to S 5 DA of the Criminal Appeal Act, 1912 / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court at Griffith
Outcome
Appeal allowed; sentence varied.
Legal Topics
['crown Appeal Against Sentence' 'robbery in Company' 'undertaking to Assist Law Enforcement Authorities' 'failure to Give Evidence' 'sentence Variation']
['criminal Law' 'criminal Procedure' 'sentencing'] ['crown Appeal Against Sentence' 'robbery in Company' 'undertaking to Assist Law Enforcement Authorities' 'failure to Give Evidence' 'sentence Variation']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence Pursuant to S 5 DA of the Criminal Appeal Act, 1912 / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court at Griffith

Legal Issues

  1. 1 ['Whether the respondent failed wholly or partly to fulfil an undertaking to assist law enforcement authorities by giving evidence against co-offenders.' 'Whether the sentence reduced because of that undertaking should be varied under s 5DA of the Criminal Appeal Act, 1912.' 'What sentence should be imposed after excising the discount given for the promised assistance.']

Ratio Decidendi

The respondent's sentence had been reduced because he undertook on oath to give evidence against co-offenders in accordance with his police statement, and he was plainly aware that failure to do so could lead to re-sentencing. His evidence in the Children's Court, including his refusal to answer further questions and claimed inability to recall relevant events, showed that he was not prepared to honour the undertaking; any future testimony would be virtually valueless. The Court therefore varied the sentence under s 5DA to remove, so far as possible, the discount given for the promised assistance.

Court Disposition

Appeal allowed; sentence varied.

Orders

  • ['The appeal be allowed.' '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.' 'There will be a non-parole period of 2 years and 9...