R v Hickson [2001] NSWCCA 113

New South Wales Court of Criminal Appeal

CITATION : R v Hickson [2001] NSWCCA 113 FILE NUMBER(S) : CCA 60799/99 HEARING DATE(S) : Friday 23 February 2001 JUDGMENT DATE : 23 February 2001

PARTIES : Regina v Philip Hickson JUDGMENT OF : Grove J at 1; Simpson J at 10

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0432 LOWER COURT JUDICIAL Nader A/DCJ OFFICER :

COUNSEL : P.G. Berman (Crown) R. Burgess (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Armed Robbery - Assistance to Authority - Plea of Guilty - Omission to Consider - Resentence CASES CITED: R v Thomson (2000) 49 NSWLR 383 DECISION : Appeal Allowed; Resentenced

IN THE COURT OF CRIMINAL APPEAL

60799/99

GROVE J SIMPSON J

Friday 23 February 2001

REGINA v PHILIP HICKSON

JUDGMENT

1 GROVE J : This is an application for leave to appeal against severity of sentence imposed by Nader A/DCJ in the East Maitland District Court. The applicant pleaded guilty to a single count of armed robbery with an offensive weapon. 2 The facts were that the applicant and three other young men discussed acquiring some money, and it was decided that this would be obtained unlawfully from the operators of the Black Hill service station at Muswellbrook. The four young men travelled by car to the vicinity of that business, but in the event only the applicant entered the premises where he brandished a knife and obtained a few hundred dollars from the operators. The persons present in the service station at the time were Mrs Polyxeni Kyriakopoulos and her son. When the applicant egressed the service station with his loot he discovered that the other three had abandoned him and it was necessary for him to flee on foot. He was able to escape pursuers. 3 Somewhat surprisingly, I would comment, he nevertheless continued to associate with the other three, whom he caught up with at some premises in Muswellbrook where there was a division of the stolen money. This happened in May 1997. The applicant used his share of the money to relieve the pressure of current debt. He was separated from his de facto wife with whom he had two children. I might mention that he was but twenty years of age at the time. He was not approached by police until, as a result of inquiries, he was interviewed on 7 August 1998. 4 It suffices for present purposes to observe that he was candid with police and he frankly not only confessed his own involvement but nominated those who were apparently his co-offenders. I say apparently, because although the applicant was charged and convicted as I have mentioned, the other three were placed before a court and released upon recognizance after pleading guilty to concealing a serious offence. Two of the co-offenders were twins, and we are informed that they also received a sentence of community service for an unrelated offence. The learned sentencing judge imposed upon the applicant a total sentence of four years imprisonment, which he divided into minimum and additional terms of two years each respectively. 5 The matter can be dealt with relatively briefly thanks to the helpful and candid approach of the learned Crown Prosecutor, who observed that there was a complete omission by the sentencing judge to refer to the assistance offered and given by the applicant to law enforcement authorities, and it was conceded that he was entitled to some reduction of sentence, as it was put, "in order to reward him for assisting the authorities". Whilst that is not quite the way I would express it, the sentiment is appropriate. 6 The court, having reached the situation that it is conceded that it was erroneous for his Honour to fail to have regard to that matter, should proceed to resentence. For that purpose we have received up-to-date information in the form of affidavits from the applicant and from his stepfather. The applicant is presently performing well as a prisoner at the Cessnock Correctional Centre, and it can be observed that he has the support of his family which will continue not only during his incarceration but upon his release. We have been informed that the separation between the applicant and his de facto has in a sense now concluded. They are of course separated whilst he is in prison, but she has moved to Cessnock and he is in contact with her and their two children. The whole of the circumstances should be taken to be promising. 7 The value of the information he gave can be assessed from the annexure to the affidavit of his solicitor, Ms Clare Joanne Farnan, which is before the court. It is not necessary for me to specify exactly the content of the information, but it can be observed that the participation of the other offenders would not be known to the extent that it was nor, indeed, would two of them be identified but for the candour of the applicant on the occasion that he was spoken to first by police. It has been pointed out that the proceedings were protracted in the sense that not only was it over a year before he was spoken to by police, but another year passed before he was brought before the court and, indeed, longer than a year before he was actually sentenced. 8 The applicant pleaded guilty to the offence, and whilst it may be taken that the learned sentencing judge took into account the value of the plea of guilty, he omitted, as I have said, to take into account the assistance given. This court should take into account both those matters, together with the other subjective matters which were both before the court below and which have been supplemented in the additional material before this court. 9 Since the case of Thomson (2000) 49 NSWLR 383 it is appropriate to give some indication of the evaluation of the utilitarian value of a plea of guilty. In this particular case I do not think it necessary to engage in mathematical extrapolations and the evaluation will be evident in the order which I propose, which is as follows, that the application for leave to appeal be granted and the appeal be allowed, that the sentence in the court below be quashed and in lieu thereof the applicant is sentenced as follows, to imprisonment for two years and six months to date from 2 December 1999 with a non-parole period specified of one year and four months to commence also on 2 December 1999 and to expire on 1 April 2001. Given the length of sentence, the court orders that the applicant be released to parole on 1 April 2001. 10 SIMPSON J: I agree. 11 GROVE J: The orders of the court will be therefore as I have proposed. **********