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District Court 3 May 2012

R v HICKEY

[2012] NSWDC 103

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY VULNERABLE VICTIM

Citation: R v Hickey [2012] NSWDC 103
Court: District Court of New South Wales
Date: 3 May 2012
Judge: Berman SC DCJ

Background

The offender and a co-offender robbed a legally blind woman at her apartment after watching her win a jackpot on poker machines at a hotel. The victim had generously shared her winnings of approximately $1,800 with others at the venue, including buying drinks for strangers and a carton of beer for the offender's mother-in-law. The two men then followed her home, tracked which floor she lived on by watching the lift indicator, and ambushed her at her apartment door.

The offender and his co-offender approached the victim from behind, pushed her to the floor, pinned her down, and physically searched her pockets, taking all of her winnings. During the robbery, one of the men removed her prescription glasses and threw them away. The victim pleaded not to be hurt, but the men responded by demanding more money before eventually leaving.

The offender was identified through CCTV footage from the hotel and apartment building and was arrested several days later. He declined to be interviewed. He had been in custody since 11 November 2011 and had an extensive prior criminal history, including juvenile robbery offences.

  • What sentence was appropriate for robbery in company, taking into account the objective gravity of the offence and the particular vulnerability of the victim?
  • How should the offender's role relative to his co-offender be assessed when the co-offender had not yet been sentenced?
  • What weight should be given to the offender's deeply troubled personal background and his history of substance abuse?
  • Whether special circumstances existed to justify extending the parole period beyond the statutory ratio.
  • How should the Henry guideline sentence apply given the specific features of this offending?

Decision

Berman SC DCJ characterised the offence as objectively very serious. The court found that deliberately targeting a legally blind woman, knowing of her vulnerability, placed the offending at the higher end of the range for robbery in company. The robbery occurred at the victim's own home, a circumstance the Court of Criminal Appeal had not factored into the Henry guideline sentence of four to five years for this category of offence. The court also noted the offender was not being sentenced for armed robbery, which carries the same maximum penalty but represents a more serious variant.

The court accepted, on the available evidence, that the offender was the junior partner in the offence and had been led by his co-offender, Mr Venios. His Honour noted the unsatisfactory position this created: where two co-offenders are sentenced separately, each may claim to have been less culpable than the other, with no opportunity to test those claims against the other's evidence. The court considered adjourning to sentence both men together but declined to do so given Mr Venios was still in the Local Court and likely to contest the matter, creating substantial delay.

The offender's personal background was described as deeply troubled. His mother had murdered his father, he had lost his grandparents during his teenage years, and he had lost a close cousin in the 2004 Redfern riots. The court acknowledged these losses had a significant effect on him and contributed to his path into drug and alcohol addiction and criminal offending. However, the court held that the fundamental sentencing requirement to reflect objective gravity still demanded a substantial sentence despite this background.

The court found special circumstances existed, relying on the offender's age and his prospects for rehabilitation through long-term residential drug and alcohol treatment. His Honour made a firm recommendation that the Parole Board not release the offender unless he immediately entered and satisfactorily completed such a program.

Orders Made

  • The offender was sentenced to a head sentence of six years imprisonment.
  • A non-parole period of three years was set, commencing 11 November 2011 and expiring 10 November 2014.
  • The court recommended that parole not be granted unless the offender immediately entered a long-term residential rehabilitation program and satisfactorily completed it.

Key Takeaways

  • Robbing a person with a known, significant physical vulnerability is a factor that materially increases the objective seriousness of a robbery offence, independent of whether weapons were used.
  • The District Court applied the Henry guideline sentence of four to five years as a reference point for robbery in company, but adjusted the sentence upward to reflect the offending occurring in the victim's home, a feature that guideline did not address.
  • Where co-offenders are sentenced separately and each claims to have been led by the other, the court cannot make findings contrary to the evidence before it, even where that produces an imperfect outcome; this decision highlights the practical advantages of sentencing co-offenders together.
  • Special circumstances justifying an extended parole period can be established by reference to the offender's age and the need for long-term residential rehabilitation, where that treatment offers genuine prospects of reducing future offending.
  • A sentencing court may take into account harm to a victim resulting from a prior traumatic experience only to the extent that such harm was reasonably foreseeable as a consequence of the offence charged.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (guideline judgment for robbery in company)

Legislation:
No specific legislation was cited in the provided text.