DPP v Hickman [2021] NSWDC 469

District Court New South Wales

Medium Neutral Citation: DPP v Hickman [2021] NSWDC 469 Hearing dates: 12 August 2021 Date of orders: 12 August 2021 Decision date: 12 August 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: Appeal dismissed. Catchwords: Criminal Law - Directors appeal on sentence from Local Court - the need to establish error - was the sentence manifestly inadequate - jet skis on the Murray river - dangers of navigation - enough is enough - firing a shot gun into the air - sentence not manifestly inadequate Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Firearms Act 1996 Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321 DK v DPP [2021] NSWCA 134 House v The King (1936) 55 CLR 499 Unal Okutgen (1982) 8 A Crim R 262 Category: Principal judgment Parties: Director of Public Prosecutions

Brett Hickman (Respondent) Representation: Counsel: Ms Kluss (Respondent)

Solicitors: Ms Coleman (DPP) File Number(s): 2020/00367113 Publication restriction: Nil. Decision under appeal Court or tribunal: Albury Local Court Jurisdiction: Criminal Date of Decision: 17 May 2021 Before: Magistrate Funston File Number(s): 2020/00367113

Judgment

Introduction 1. Mr Brett Hickman, the respondent, on 17 May was sentenced by Funston LCM at the Albury Local Court for three firearm offences and one drug offence. Mr Hickman was sentenced to a conditional release order for 18 months without conviction. The four conditional release orders imposed were concurrent and subject only to the standard conditions that the offender not commit any offence and appear before the Court if called upon to do so. 2. The appeal notice is by Frank Veltro SC, Acting Deputy Director of Public Prosecutions. The ground asserted in the notice is that the sentences are inadequate. In DK v DPP [2021] NSWCA 134, decision dated 2 July 2021, delivered after the appeal notice date, the Court of Appeal held that a Director's appeal required the establishment of error before the District Court power to vary the sentence is enlivened. The District Court jurisdiction under s 23 of the Crimes (Appeal and Review) Act is error based. The Court further held that in an appeal against sentence brought by the Director under s 23 of the Act, the District Court has a residual discretion to dismiss the appeal notwithstanding the establishment of material error in the sentencing decision. 3. Error is the type of error referred to in the House v The King (1936) 55 CLR 499. 4. In summary, House contains four key propositions, namely: 1. An appellant must demonstrate error before the Court will intervene; 2. It is not enough that the appellant judge would have imposed a different sentence; 3. An appellant may demonstrate error by showing that the sentencing judge acted upon a wrong principle, mistook the facts, took into account irrelevant matters or failed to take into account relevant matters; 4. In other cases, it may not be clear how an error occurred, but the result is unreasonable or plainly unjust. The appellate court may conclude that there was error: Dinsdale v The Queen (2000) 202 CLR 321. 1. The Crown in its written submissions dated 9 August 2021 appeals "This sentence on the basis it is manifestly inadequate". The Crown must establish that the sentence imposed was unreasonable or plainly unjust, in a sentencing environment where there is no single correct sentence.