Hickey v Director of Public Prosecutions (NSW) [2024] NSWSC 191

Supreme Court New South Wales

Medium Neutral Citation: Hickey v Director of Public Prosecutions (NSW) [2024] NSWSC 191 Hearing dates: 27 February 2024 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Bail refused in relation to 2022/270309 (H90583346/1). (2) Conditional bail granted in relation to 2023/308937 (H97600486 Seq 1, 2, 3, 4). Catchwords: CRIMINAL LAW – release application – where sentencing proceedings imminent – where bail also refused for unrelated offences – lengthy delay – whether appropriate to refuse bail for one offence but grant bail on others – possibility of intensive correction order – show cause requirement – issues as to strength of prosecution case and seriousness of second series of offences – different functions of sentencing court and bail court – bail decision ought not to influence proper exercise of sentencing discretion – preposterous in this case to think it would – bail granted on second series of the offences – refused on the offence for which sentence is pending Legislation Cited: Bail Act 2013 (NSW) Category: Principal judgment Parties: William Hickey Director for Public Prosecutions Representation: Solicitors: Aboriginal Legal Service (Hickey) Director of Public Prosecutions File Number(s): 2024/0031367

Ex-TEMPORE JUDGMENT (REVISED) 1. William Hickey makes an application for release pursuant to the provisions of the Bail Act 2013 (NSW). The matter is quite unusual, and the result of the application will be correspondingly unusual. To explain that observation, I will set out the two matters or series of matters upon which Mr Hickey originally made the application for bail. 2. The first is a matter that dates back to 2022 when Mr Hickey committed – and I can say that rather than "allegedly committed" because he has pleaded guilty – an offence of aggravated break, enter and steal with intent to commit a serious indictable offence, namely, intimidation. That matter is currently before the Downing Centre District Court and, I am told by both parties, is part-heard for sentence before her Honour Judge Tupman. It is listed for sentence on 8 March of 2024, which is to say Friday week. 3. The problem with that application was (and is) the fact that any grant (or refusal) of bail at this late stage could potentially fetter the discretion of the sentencing Judge either way. In other words, if bail were refused, the sentencing Judge may take the view that an alternative to full-time gaol should not be entertained; equally, if bail were granted, it might be thought that it should be entertained. Further, if bail were granted and then the District Court Judge imposed a full-time gaol sentence, the applicant would be in the invidious position of having been released and then, nine or ten days later, being locked up again. 4. The second series of offences are matters charged as possession of a shortened firearm; carrying an offensive implement in public; supplying a prohibited drug; and receiving stolen property. Those matters attract the show cause requirement because he was on bail for the aggravated break, enter and steal when those things allegedly happened. 5. Those matters are still before the Local Court for mention on 28 February 2024 and there is likely to be a lengthy period before the matter is finally disposed of. Whether or not it is dealt with in the Local Court or District Court would be a matter of guesswork at this stage, but either way there is likely to be a significant delay. 6. Whilst those are, on their face, serious offences, there are some issues in them that jump off the page. The allegation of possessing a shortened firearm appears to be based solely on the location by the police of an image or photograph on a mobile telephone showing the applicant in possession of a shortened firearm in what is said, or inferred to be, his bathroom. There would be expected to be a real issue as to whether, in those circumstances, the gun – which has, it seems, never been located – can be proved actually to be a firearm. 7. The supply prohibited drug offence, whilst on its face serious, involves a relatively small amount of methylamphetamine (5-6 grams) and there may be, in spite of the way it was packaged, a lively issue as to whether it may have been for personal use. I don't know, of course, what Mr Hickey's defence to that charge may be, but it is not an amount of such significance that a personal use defence would be patently absurd. Similarly, it is not an offence, given that quantity, that would necessarily result in the imposition of a full-time custodial sentence. 8. After reading the papers and hearing briefly from the parties, I formed the view that Mr Hickey had shown cause why his detention was not justified in respect of those second series of offences. However, I remained concerned as to the practical reality that he is to stand for sentence before Judge Tupman on 8 March 2024, and in circumstances where a full-time custodial sentence is a real possibility, albeit that, if what I am told is correct – and I don't doubt it for a moment – that her Honour has indicated a sentence of two years might be what happens. Obviously, her Honour has not determined the matter yet – but if a sentence of two years is imposed, it may be that her Honour considers, taking into account all of the s 66 factors, that an intensive correction order ("ICO") is the correct and most appropriate penalty. 9. I adjourned to allow the parties to discuss the matter, and for Mr Hickey to give instructions to Ms Forge on the possibility of reaching different conclusions on the two sets of matters. The parties agree that that is both an available course and an appropriate one. 10. I note, and this was helpfully pointed out by Ms Ervin who appears for the Director, that Mr Hickey has previously been granted bail for a very short period of time to attend a family member's funeral and he did, as he was required to do, surrender himself after the funeral to the police to return to custody. That is a very comforting fact in terms of his willingness to comply with bail. 11. I am satisfied, as I have said, that Mr Hickey has shown cause in respect of the series of offences in H97600486. I am satisfied there are no unacceptable risks associated with his release, and I propose to grant bail in relation to those matters. 12. In relation to the aggravated break and enter (H90583346), the imminence of the sentencing proceedings and accompanying temptation to take flight, notwithstanding Mr Hickey surrendering himself previously and the prospect of an ICO, I am satisfied there is an unacceptable risk associated with releasing him now and I propose to refuse bail or, putting it more correctly, dismiss his release application in relation to that matter. So, he will have bail on the sequence H97600486 offences, but that bail won't be able to be entered, or will have no practical effect, unless or until he is given a non-full-time custodial alternative when sentenced by Judge Tupman. 13. I want to make entirely clear that nothing I am doing today should interfere with, or influence in any way, the exercise of the sentencing discretion by Judge Tupman on 8 March 2024. Knowing her Honour as I do, it is preposterous of me even to suggest that it might. The reality is the job of a sentencing judge is very different to the job of a judge sitting in a bail court. My job here is to assess risk, to consider show cause considerations, rather than to be focused on the various objectives or purposes of punishment and the evidentiary material that goes towards the exercise of the sentencing discretion and the instinctive synthesis of so many different considerations and factors. 14. I should say that one of the most significant features in this case is the detailed and compelling report prepared by Dr Richard Furst which no doubt will form a very significant part of the subjective material with which Judge Tupman will be dealing when her Honour comes to exercise the difficult sentencing function in relation to the aggravated break and enter. 15. FOR BAIL CONDITIONS SEE COURT FILE.