Citation: Regina v Thomas John Hickey; Regina v Joseph Martin Hickey [2003] NSWCCA 110
Court: New South Wales Court of Criminal Appeal
Date: 24 April 2003
Judge(s): Sheller JA, James J, Smart AJ
Background
The Director of Public Prosecutions brought Crown appeals against sentences imposed in the District Court on two brothers, each convicted of robbery in company following guilty pleas. Both men pleaded guilty to participating in a daylight robbery of a National Australia Bank branch at Warrawong in May 2001, during which approximately $18,900 was taken from four female employees. No weapons were used and no violence was threatened.
One brother (referred to in the judgment as TJH) faced an additional count arising from an earlier robbery in company at a TAB agency in Burwood in February 2001, in which he and others smashed their way into the premises and took around $1,188. The other brother (JMH) had a separate matter taken into account involving a street bag-snatching in Redfern in November 2001.
The District Court had sentenced TJH to two wholly concurrent terms of four years and six months, and sentenced JMH to three years and nine months. The Crown argued both sentences were manifestly inadequate, and that TJH's sentences should not have been made fully concurrent.
Legal Issues
- Whether the sentences imposed on each brother were manifestly inadequate and warranted appellate intervention.
- Whether the sentencing judge erred by making TJH's two sentences for separate robberies in company wholly concurrent rather than partially cumulative.
- How the principle of proportionality should operate when co-offenders are sentenced for a common offence but one has a significantly more serious criminal history and faces an additional count.
Decision
The Court of Criminal Appeal dismissed the Crown appeal against JMH's sentence. The Court accepted that a starting point of five years before discount was either at the lower end of the permissible range or sufficiently close to it that intervention was not warranted. The 25% discount for the guilty plea, and the finding of special circumstances, were each within the sentencing judge's legitimate discretion.
The Court allowed the Crown appeal against TJH's sentences. The sentencing judge had erred in making the two robbery sentences wholly concurrent. Because TJH committed two distinct serious offences on separate occasions, the sentences required at least partial accumulation to reflect the separate criminality involved. At the same time, the Court applied the principle of totality and acknowledged the need to maintain proportionality between the two brothers, given they were sentenced for the same bank robbery and both had committed one further serious offence each.
The Court also noted TJH's extensive criminal record, including a prior sentence for robbery in company, and that his more recent offending occurred after a period of farm work near Walgett during which he had remained drug-free. TJH had returned to Sydney in early 2001, resumed heavy heroin use, and committed both robberies to fund his drug habit. The sentencing judge had considered TJH to be at a personal crossroads, wishing to change his ways, but this did not displace the need for partial accumulation.
Applying the double jeopardy principle (which reduces a sentence on Crown appeal to account for the burden of being sentenced twice), the Court restructured the sentences to run partially concurrently and partially cumulatively, adding 18 months to the total head sentence and 12 months to the non-parole period compared with the original orders.
Orders Made
- Crown appeal against the sentence imposed on Joseph Martin Hickey: dismissed.
- Crown appeal against the sentences imposed on Thomas John Hickey: allowed; original sentences quashed.
- In lieu of those sentences, TJH was re-sentenced as follows:
- Robbery in company at National Bank, Warrawong: 4 years 6 months imprisonment commencing 2 May 2001, with a non-parole period of 3 years expiring 1 May 2004.
- Robbery in company at TAB Burwood: 4 years 6 months imprisonment commencing 2 November 2002 and expiring 1 May 2007, with a non-parole period of 2 years 6 months expiring 1 May 2005.
Key Takeaways
- Wholly concurrent sentences for separate robberies in company committed on different occasions will not always be appropriate; the Court of Criminal Appeal confirmed that partial accumulation may be required to reflect the distinct criminality of each offence.
- Proportionality between co-offenders remains a relevant sentencing consideration, even where one offender has a significantly worse criminal history and faces an additional charge.
- Where a Crown appeal succeeds, the double jeopardy principle operates to moderate the resentenced term, recognising the additional burden placed on an offender who is effectively sentenced twice.
- A sentencing court's finding that an offender is "at a crossroads" and motivated to reform is a legitimate mitigating factor, but it does not override structural sentencing errors such as the failure to partially accumulate sentences for separate serious offences.
- In dismissing the appeal against JMH, the Court confirmed that a starting point at or near the lower end of the permissible range, combined with an appropriate guilty plea discount and a finding of special circumstances, will not ordinarily attract appellate intervention.
Legislation and Cases Referenced
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
Legislation: No specific legislation was cited in the provided judgment text.