Citation: Regina v Hickling; Regina v Avery [2004] NSWCCA 168
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2004
Judge(s): Grove J, Howie J, Newman AJ
Background
Two nineteen-year-old Indigenous Australian men pleaded guilty in the District Court to using an offensive weapon, contrary to s 33B(1) of the Crimes Act 1900, arising from a confrontation at a hotel in Tabulam, a small and relatively isolated rural village. Both respondents were intoxicated when a local police sergeant attended to manage the situation. One respondent wielded a broken branch and attacked the sergeant; the other intervened physically to obstruct the officer. The sergeant sustained soft tissue injuries to his back and neck and bruising to his wrist. One respondent also had a further assault-on-officer offence taken into account on a Form 1.
Both respondents were on conditional liberty at the time: one was on parole from earlier offences, the other was subject to a good behaviour recognizance. Phelan DCJ sentenced each to eighteen months' imprisonment, backdated to commence from the date of their respective arrests, resulting in non-parole periods of nine months. The practical effect of this backdating was that each respondent was serving only a small portion of the new sentence as time that was solely attributable to the present offences.
The Crown appealed, arguing the sentences were manifestly inadequate and that the sentencing judge had failed to give sufficient weight to the aggravating circumstances, including the commission of offences whilst on conditional liberty and, in one respondent's case, the Form 1 offence.
Legal Issues
- Whether the sentences imposed were manifestly inadequate having regard to the gravity of the offences, including that the victim was a police officer performing his duty.
- Whether the sentencing judge erred by backdating the commencement of sentences, resulting in minimal additional custody time attributable to these offences.
- Whether the sentencing judge gave insufficient weight to the aggravating features of offending whilst on parole (Hickling) and whilst on a good behaviour recognizance (Avery).
- Whether the sentencing judge failed to properly reflect the Form 1 offence in Avery's sentence.
- Whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeals notwithstanding a finding of inadequacy.
Decision
The Court of Criminal Appeal agreed unanimously that the sentences were manifestly inadequate. On a purely objective assessment, the court found the sentences disproportionate to the seriousness of the conduct. The offences involved a coordinated attack on a lone police officer performing his duty, committed by two offenders acting together, both of whom were on conditional liberty at the time. Previous convictions for offences against police officers, and the Form 1 offence in Avery's case, compounded the objective gravity.
The Court acknowledged, however, that the sentencing exercise also required appropriate weight to be given to the subjective circumstances of both respondents. Relevant factors included their youth, their status as Indigenous Australians, and the social and economic disadvantages associated with that background, as recognised in the principles in R v Fernando (1992) 70 A Crim R 58. The court accepted that these matters were legitimately taken into account, even if the overall sentencing result was inadequate.
Howie J criticised the trial judge's expressed reasoning that he did not intend to "add to their misfortune as young men who are spending more of their time in gaol than out," characterising that statement as reflecting an erroneous approach to sentencing for offences of this kind.
Notwithstanding the finding of inadequacy, the Court exercised its residual discretion to dismiss the Crown appeals. By the date of the appeal hearing, both respondents were within days of their parole eligibility dates. The Court concluded that any increase in sentence would have been modest and that no practical purpose would be served by intervening at that point. The Court also noted that full-time custody sentences had at least been imposed, which carried general deterrence value regardless of their relatively short effective duration.
Orders Made
- Crown appeal in respect of Hickling: dismissed.
- Crown appeal in respect of Avery: dismissed.
Key Takeaways
- In dismissing both Crown appeals, the Court of Criminal Appeal nonetheless confirmed that sentences were manifestly inadequate, demonstrating that a finding of inadequacy does not compel intervention where the residual discretion is properly engaged.
- Proximity to parole eligibility at the time of the appeal hearing constituted a discretionary factor militating against resentencing, even where the original sentences were found to be disproportionately lenient.
- The subjective circumstances of Indigenous Australian offenders, including social and economic disadvantage, remain relevant mitigating considerations in sentencing under the principles in R v Fernando, but those considerations do not override the requirement to reflect the objective gravity of violent offences against police officers.
- Offending whilst on conditional liberty (whether parole or a good behaviour recognizance) is an established aggravating factor that sentencing courts are required to address with sufficient weight.
- Full-time custodial sentences for serious attacks on police officers performing their duties serve a general deterrence function, even where the practical effect of backdating reduces the additional period of custody attributable to the specific offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33B(1) (using an offensive weapon)
Cases:
- R v Fernando (1992) 70 A Crim R 58 (principles relevant to sentencing Indigenous Australian offenders)