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2
Court of Criminal Appeal 29 November 2002

R v Hickey

[2002] NSWCCA 474

Also reported as 137 A Crim R 62
Theft & propertyPublic order & justice offences
CRIMINAL LAW JURY QUESTION CRIMINAL APPEALS COURT OF CRIMINAL APPEAL RE SENTENCING

Citation: R v Hickey [2002] NSWCCA 474
Court: NSW Court of Criminal Appeal
Date: 29 November 2002
Judge(s): Spigelman CJ, Sully J, James J

Background

The appellant was convicted after a jury trial in the District Court on two charges of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. The charges arose from a 1999 incident in which three men, including the appellant and a co-accused named Tuncbilek, were alleged to have robbed a newsagency at Concord West. One man remained in a stolen getaway car while two entered the newsagency, with the taller of the two producing a replica pistol.

The Crown's case rested on joint criminal enterprise: even though only Tuncbilek was alleged to have wielded the pistol, the appellant was said to be equally responsible for the armed element of the offence. The jury convicted both the appellant and Tuncbilek of both armed robbery charges. The appellant was sentenced by Ainslie-Wallace DCJ to concurrent terms of five and a half years with a non-parole period of three and a half years.

The appellant absented himself from the trial on the day the jury returned its verdicts, remained at large until May 2001, and was ultimately sentenced in August 2001. He then appealed against both conviction and sentence.

  • Whether the trial judge misdirected the jury in relation to the joint criminal enterprise directions, particularly as to the armed element of the offence under s 97(2)
  • Whether the jury's verdict on the armed robbery charges was supportable given the evidence and the directions
  • Whether the Court of Criminal Appeal should substitute verdicts of guilty of the lesser offence of robbery (s 94 of the Crimes Act 1900) in place of the quashed convictions
  • What sentence was appropriate for the two offences of robbery following substitution of verdict

Decision

The Court of Criminal Appeal upheld the appeal against conviction and quashed the convictions for armed robbery under s 97(2). The Court determined that the jury had been misdirected in a material way in relation to the joint criminal enterprise direction, which affected the armed element of the charges. The convictions could not stand.

Rather than order a retrial, the Court exercised its power under s 7(2) of the Criminal Appeal Act to substitute verdicts of guilty of the lesser offence of robbery under s 94 of the Crimes Act 1900. The Court was satisfied that the evidence supported convictions on that lesser basis, as it was not in dispute that robberies had occurred and that the appellant had participated in them.

On resentencing, James J (with whom Spigelman CJ and Sully J agreed) considered the objective gravity of the robberies, the appellant's subjective circumstances, and the need for parity with the sentences imposed on co-offenders Dungay and Tuncbilek. The comparison was complicated by the fact that Dungay had pleaded guilty, Tuncbilek had been sentenced for additional offences and had an intellectual disability, and the Court was now sentencing the appellant for the lesser offences only. Special circumstances were found, given the appellant's need for a significant period of support upon release.

Orders Made

  • The convictions entered in the District Court were quashed.
  • Pursuant to s 7(2) of the Criminal Appeal Act, the Court substituted verdicts of guilty of, and entered convictions for, two offences of robbery under s 94 of the Crimes Act 1900.
  • A sentence of three years' imprisonment was imposed, commencing 29 November 2002 and expiring 28 November 2005.
  • A parole order was made directing the appellant's release to parole on 28 November 2004.

Key Takeaways

  • A conviction for robbery whilst armed under s 97(2) of the Crimes Act 1900 requires the jury to be correctly directed on the armed element, including where that element is put on the basis of joint criminal enterprise.
  • Where a jury direction on joint criminal enterprise is found to be materially defective, the Court of Criminal Appeal may quash the conviction without necessarily ordering a retrial.
  • Under s 7(2) of the Criminal Appeal Act, the Court of Criminal Appeal may substitute a verdict of guilty of a lesser offence where the evidence supports that lesser verdict, avoiding the need for further proceedings.
  • Parity in sentencing between co-offenders is a relevant consideration on resentencing, but differences in plea, individual subjective circumstances, and the specific offences for which each person is sentenced can limit the utility of direct comparison.
  • Special circumstances justifying a longer parole period may be found where the sentencing court identifies a significant need for post-release supervision and support.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery), s 97(2) (robbery whilst armed with a dangerous weapon)
- Criminal Appeal Act (NSW), s 7(2) (power to substitute verdict)

Cases cited: No cases were cited in the portions of the judgment provided.