Regina v Hickling; Regina v Avery [2004] NSWCCA 168

New South Wales Court of Criminal Appeal

CITATION : Regina v Hickling; Regina v Avery [2004] NSWCCA 168 HEARING DATE(S) : Friday 7 May 2004 JUDGMENT DATE : 7 May 2004

JUDGMENT OF : Grove J at 1; Howie J at 31; Newman AJ at 34 DECISION : APPEALS DISMISSED

CATCHWORDS : SENTENCE - CROWN APPEAL - INADEQUACY - ATTACK ON POLICE OFFICER - REAL EFFECT OF SENTENCES HAVING REGARD TO CONCURRENT CUSTODY - INDIGENOUS AUSTRALIAN ABORIGINALS - SPECIFIC SOCIAL AND ECONOMIC HANDICAPS - DISCRETION OF APPELLATE COURT IMPLEMENTED CASES CITED : R v Fernando 1992 70 A Crim R 58 PARTIES : Regina v Darryl Ernest Hickling Regina v Kenneth Cecil Eric Avery FILE NUMBER(S) : CCA 60053/04; 60054/04 COUNSEL : D. Woodburne (Crown/Applicant) R. Hulme SC (Respondents) SOLICITORS : S. Kavanagh (Crown/Applicant) R. Mathur (Respondents)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0186 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60053/04 60054/04

GROVE J HOWIE J NEWMAN AJ

Friday 7 May 2004 REGINA v DARRYL ERNEST HICKLING REGINA v KENNETH CECIL ERIC AVERY Judgment

1 GROVE J: These are Crown appeals asserting the inadequacy of sentences imposed by Phelan DCJ on 18 December 2003. Each of the respondents had pleaded guilty on arraignment to a charge of using an offensive weapon contrary to s 33B(1) of the Crimes Act 1900. In the case of Avery the particularized use was to prevent lawful apprehension and in the case of Hickling to prevent lawful apprehension of another, that other being Avery. The learned sentencing judge was asked by Avery to take into account a further charge on a Form 1 of assaulting an officer in the execution of his duty. These offences arose out of an incident on the afternoon of 19 August 2003 and they were dealt with together in the District Court and it has been convenient to hear these appeals together. 2 At about 11.30 am on the date of offences Hickling purchased a two litre flagon of what was described as "McWilliams Royal Reserve" from the manager of the Tabulam Hotel. The manager's brother is the licensee. The liquor is apparently a form of fortified wine. At about 4.30 pm the manager noticed the respondents on a surveillance screen and they appeared to be disturbing a woman who had taken over the conduct of the hotel. The manager returned from his quarters where the surveillance screens were located and spoke to the respondent Avery and reminded him that he was barred from the hotel and told him to leave. Further incidents provoked the manager to call the local police station and in response Sergeant Shane Davidson came to the hotel. 3 At this time both the respondents were well affected by intoxicating liquor. They were well known to Sergeant Davidson. When he arrived the sergeant observed Avery wielding a mattock which he was instructed to put down. He refused to do so. Sergeant Davidson was obstructed from alighting from his vehicle by Hickling despite telling him that it was not then his intention to arrest Avery but to get him to put the mattock down. Eventually Sergeant Davidson was able to get out of his vehicle and the confrontation escalated. The respondents were well described by counsel as being, at that time, drunken, abusive and aggressive young men. Among other things Avery picked up a stubby of beer and threatened to use it on Sergeant Davidson. At that point Hickling came between them enabling Avery to run to a nearby tree and he returned wielding a broken branch. It is this branch which is the relevant offensive weapon mentioned in the specification of charges. 4 An attack upon the sergeant was made by Avery with the branch. Hickling also attempted to disable the police officer who suffered injuries to his wrist, back and neck. He was able to disentangle himself and struck Hickling on the knee with his baton and also used capsicum spray. The description of events is such as to engender a commendation of Sergeant Davidson for the comparative restraint which he exercised. 5 Hickling was arrested at the Jubullum Mission Tabulam about three hours later. Avery was also at the Mission but was manifesting an injury, which required transporting him to hospital. The injury to Avery was not caused at the incident involving Sergeant Davidson. After treatment at Lismore Hospital Avery was placed under arrest early the following morning. Tabulam is a small and relatively isolated village situated off the Summerland Way which runs between Grafton and Casino. 6 In the aftermath of the incident Sergeant Davidson attended to various duties but was advised to attend Casino Hospital where he was treated for soft tissue damage to the back and neck, and bruising to his left wrist was noted. These injuries were not trivial but the submission of senior counsel appearing for the respondents on appeal that, without detracting from the nastiness of the confrontation, the injuries were minor in a relative sense is a realistic assessment. 7 Both the respondents are indigenous Australian aboriginals. Both were aged nineteen years when the offences were committed. 8 Hickling was sentenced to imprisonment for eighteen months commencing on 19 August 2003 with a non parole period of nine months resulting in a parole entitlement date of 18 May 2004. It may be observed that this date is eleven days hence. However the whole of the time spent in custody has not been solely referrable to the particular offence. He was on parole for other offences and that parole was revoked as a consequence of which he was serving balance of other sentences from 20 August 2003 until 21 March 2004. 9 The imposition on Avery (taking into account the offence on the Form 1) was also eighteen months imprisonment to commence on 20 August 2003 with a non parole period of nine months resulting in a parole date of 19 May 2004. At the time of these offences Avery was subject to a recognizance to be of good behaviour and between 16 September 2003 and 15 March 2004, he was in custody for two unrelated matters in connection with control orders, the detailed structure of which I need not pause to examine. 10 In respect of both respondents the Crown argues that the discretion of the sentencing judge miscarried by reason of his backdating the sentences to commence upon the respective dates of arrest and that the sentences were manifestly inadequate. In the case of Hickling a further reason was argued to be the failure to take into account or give sufficient weight to the aggravating feature that the offence was committed whilst he was on parole. In respect of Avery it is argued that discretion miscarried for two further reasons, first, failure to take into account or give sufficient weight to the aggravating feature that the offence was committed whilst the respondent was on conditional liberty and, second, failure to properly reflect in assessment of sentence the offence scheduled in the Form 1. 11 A consequence of the specification of commencement dates was that in the case of Hickling less than two months custody will be served referrable solely to this offence and in the case of Avery approximately three months referrable to the matters dealt with by his Honour. 12 It is accepted by the Crown that there was undoubted power to order the sentences to commence upon the dates specified. It is plain that his Honour was alert to the consequence of his specifications. He said "I do not propose to particularly add to their misfortunate as young men, who are spending more of their time in gaol than out." 13 The Crown has pointed out that the seriousness of the offence is to be gauged in view of the statutory prescription of twelve years imprisonment as a maximum. It is interesting to note, however, in the context of that maximum that, from a database of 192 cases, the statistics gathered by the Judicial Commission reveal full time imprisonment being imposed upon 75 percent of offenders or, expressed the other way, full time imprisonment not being imposed upon 25 percent of offenders. 14 In this case it is a relevant consideration available to be taken into account that the victim was a police officer seeking to execute his duty and further that the offences involved the company of the respondents with each other whilst the victim was alone. In particular it is noted that Avery has previous convictions for offences relating to police officers. The offence taken into account on the Form 1 is yet again a crime of that nature. 15 It is not in doubt that the commission of offence whilst on conditional liberty, be it parole or pursuant to recognizance, is a matter of aggravation. 16 On a purely objective assessment the sentences are so disproportionate to the conduct involved and the circumstances that the Crown submission in that regard should be assessed as having been made good. 17 The sentencing exercise undertaken by Phelan DCJ, however, also involved giving appropriate weight to the subjective circumstances of the offenders. I have already noted their comparative youth, although each had accumulated a substantial record of previous offences. 18 In a pre sentence report prepared in relation to Hickling a probation and parole officer, Ms Welsh, observed: "The social environment in which the offender was reared has not encouraged or been conducive to compliance with the law. His present residence at Tabulam exacerbates this situation as it is a disadvantaged, isolated community in which law breaking and alcoholism is common."