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Court of Criminal Appeal 17 November 2003

REGINA v HICKEY

[2003] NSWCCA 344

Theft & property
APPEAL CRIMINAL LAW SENTENCING APPEAL NO QUESTION OF PRINCIPLE

Citation: Regina v Hickey [2003] NSWCCA 344
Court: New South Wales Court of Criminal Appeal
Date: 17 November 2003
Judge(s): Handley JA, Grove J, Adams J

Background

The Crown appealed sentences imposed by Woods DCJ in the District Court on 29 August 2003 following the prisoner's guilty pleas to four counts: escape from lawful custody, and three counts of break, enter and steal. A Form 1 offence of assault on police accompanied the escape count, and a Form 1 charge of attempted break, enter and steal was associated with one of the break and enter counts.

The break, enter and steal offences occurred between December 2001 and May 2002. Two offences took place during daylight hours while residents were absent, and one occurred in the early hours of a Sunday morning when the female occupant was asleep at home. One offence involved the loss of jewellery valued at approximately $22,000. The prisoner committed all offences while subject to two unexpired bonds and had four prior convictions for break, enter and steal.

At sentencing, the District Court placed decisive weight on the prisoner's personal circumstances, particularly the recent birth of his son. The child was in foster care while the prisoner's partner was also in custody, and weekly visits in gaol were said to have had a marked positive effect on the prisoner. A welfare officer expressed the view that fatherhood may represent a genuine turning point. The sentencing judge accepted that assessment and imposed sentences that resulted in the three break, enter and steal counts being served concurrently, meaning effectively nine months' full-time custody for those offences.

  • Whether the sentences imposed on the break, enter and steal counts were manifestly inadequate, having regard to the objective seriousness of the offending, the prisoner's criminal history, and the aggravating circumstance of offending while on two bonds.
  • Whether the weight given to the prisoner's subjective circumstances, particularly his role as a new father, justified departing from what would otherwise be an appropriate sentencing response to the objective criminality involved.

Decision

The Court of Criminal Appeal, in a unanimous decision delivered by Handley JA, allowed the Crown appeal. The Court accepted that the prisoner's subjective circumstances warranted substantial weight, including his deprived background, low intelligence, minimal education, and the potential turning point represented by his son's birth. However, those factors could not overcome the cumulative weight of the objective criminality.

The Court identified the key flaw in the original sentencing as making all three break, enter and steal sentences wholly concurrent. When considered together with the prisoner's commission of the offences while on two bonds, his four prior convictions for break, enter and steal, and the nature of the offending itself, the Court concluded the sentences were manifestly and appellably inadequate.

In re-sentencing, the Court left the sentences for Counts 1 and 4 undisturbed but made the two-year terms on Counts 2 and 3 cumulative rather than concurrent with those earlier sentences. The result was that the prisoner would serve 18 months' full-time custody instead of the original 12 months. The Court set a non-parole period of six months to allow for a meaningful period of supervised release, noting the importance of post-custody supervision given the prisoner's developing skills and rehabilitation prospects.

Orders Made

  • Appeal allowed.
  • Sentences on Counts 2 and 3 set aside.
  • Prisoner re-sentenced to two years' imprisonment commencing 25 November 2003 and expiring 24 November 2005.
  • Non-parole period of six months commencing 25 November 2003 and expiring 24 May 2004.
  • Prisoner to be released on parole on 24 May 2004.

Key Takeaways

  • The Court of Criminal Appeal confirmed that making multiple serious break, enter and steal sentences wholly concurrent can, in appropriate circumstances, produce a result that is manifestly inadequate when measured against the objective gravity of the total offending.
  • Compelling subjective circumstances, including genuine evidence of rehabilitation prospects and the effect of fatherhood on an offender, must still be weighed against objective criminality and cannot automatically justify concurrent rather than cumulative sentences.
  • Offending while subject to two unexpired bonds remains a serious aggravating factor in sentencing, and the Court treated this as a significant element in the overall assessment of adequacy.
  • Prior convictions for the same class of offending are a relevant factor in assessing whether leniency in sentencing is justified, particularly where they are numerous and directly analogous to the current charges.
  • In re-sentencing, the Court calibrated the non-parole period to preserve a meaningful supervisory period after release, reflecting the view that post-custody oversight can itself serve rehabilitative ends.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata.