New South Wales Court of Criminal Appeal CITATION : REGINA v HICKEY [2003] NSWCCA 344 HEARING DATE(S) : 17 November 2003 JUDGMENT DATE : 17 November 2003 JUDGMENT OF : Handley JA at 1, 24; Grove J at 22; Adams J at 23 DECISION : 1. Appeal allowed; 2. The Court sets aside the sentences on Counts 2 and 3 and re-sentences the prisoner to imprisonment for two years to commence on 25 November 2003 and expire on 24 November 2005 with a non-parole period of six months to commence on 25 November 2003 and expire on 24 May 2004. CATCHWORDS : APPEAL - criminal law - sentencing - APPEAL - no question of principle PARTIES : Regina v Andrew James Hickey FILE NUMBER(S) : CCA 60398/03 COUNSEL : P Power SC (Crown) R Hulme SC (Appellant) SOLICITORS : Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission of New South Wales (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0632 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60398 of 2003 HANDLEY JA GROVE J ADAMS J 17 November 2003 REGINA v ANDREW JAMES HICKEY Judgment 1 HANDLEY JA: The Crown has appealed from the sentences imposed by Woods DCJ on the prisoner on 29 August this year. 2 The prisoner pleaded guilty on 1 July to four counts. Count 1 was escape from lawful custody on 25 November 2002 and in that connection there was a Form 1 offence of assault on police. Count 2 was an offence of break, enter and steal on 3 December 2001. There was also a Form 1 in connection with that offence of an attempted break, enter and steal on 23 May 2002. Count 3 was a break, enter and steal on 14 December 2001, and Count 4 was a further break, enter and steal on 12 May 2002. 3 His Honour sentenced the prisoner to a fixed term of three months for the escape from lawful custody to commence on 25 November 2002. That was the day that the prisoner was taken into custody and he has been in custody ever since. There is no challenge to that sentence. 4 For Counts 2 and 3 he imposed concurrent terms of two years imprisonment to commence on 24 February 2003, at the expiration of the fixed term on Count 1, with a non-parole period of nine months to expire on 24 November 2003, which is next Monday. 5 For Count 4 he imposed a fixed term of 12 months to commence on 25 November 2002. 6 The Crown submits that the sentences are disproportionately lenient and fail to reflect the objective gravity of the criminality which forms the subject matter of the three counts of break, enter and steal, and the associated charge under a Form 1 of attempted break, enter and steal. 7 It will be apparent that the sentences for Counts 2, 3 and 4 have been made wholly concurrent and that the effective term of imprisonment for the three counts of break, enter and steal and the additional Form 1 charge of attempt to break, enter and steal, is nine months full time custody. 8 The offence on 3 December 2001 involved the loss of jewellery to a value of some $22,000 which represents on any view a substantial amount of money. The two offences in December 2001 took place during daylight when no one was at home. The third offence, the subject of Count 4, took place about 3.30 pm on Sunday morning 12 May 2002 when the victim, a female, Carly Andrews, was asleep. She woke up and disturbed the prisoner who ran away. 9 The subjective position of the prisoner is such as to excite the sympathy of the Court. He had a very unfavourable family background. He is a person of low intelligence, has never had paid employment in his life and has had minimal education. At the time of the offences he was unable effectively to read or write. 10 Unsurprisingly for a person with his family and social background he has a long criminal record, starting with an offence at the age of 11 of stealing, which took him to the Cobham Children's Court. 11 At the time that he was sentenced he had four convictions for break, enter and steal and other convictions for offences against property and associated offences such as possession of implements to enter a conveyance; goods in custody; larceny; and possession of house breaking implements. 12 In the light of the objective criminality of the three break, enter and steal charges for which he had been sentenced and the attempted break, enter and steal on the Form 1, one is immediately struck by the leniency of the sentences, particularly the fact that the three sentences for the counts of break, enter and steal, have all been made concurrent. Effectively, as I said, the prisoner is only going to serve nine months in custody for those offences. As matters stand he was sentenced in August of this year and is due to be released next Monday. 13 A further matter of aggravation is that the prisoner was on two bonds at the time. This has always been treated as a serious aggravating matter in sentencing, as indeed the sentencing judge himself acknowledged. 14 The decisive matter in the view of the sentencing judge was that the prisoner had recently become a father as the result of the birth of a boy in January this year. He was currently in full time foster care overseen by the Department of Community Services because the mother, with whom the prisoner had had the relevant relationship, was herself in gaol. 15 Arrangements have been made for the child to be brought to the prisoner in gaol once a week and according to the evidence this has had a marked impact on him. This was the subject of evidence from the prisoner himself and Ms Brotherton. The prisoner has announced his intention of freeing himself from dependence on drugs and a life of crime in order that he might be a good father to his son. 16 Ms Brotherton, a welfare officer at Long Bay, in her report, which became exhibit 3, said that the birth of his son and the reaction of the prisoner may be a turning point for him, and the judge was disposed to accept that view. 17 Substantial weight must be given to this evidence and to the view the judge formed after he had heard evidence from the prisoner. 18 Nevertheless, the combination of the objective criminality of these four offences of break, enter and steal and attempted break, enter and steal, the aggravating circumstance that the prisoner was at liberty under two unexpired bonds and his four prior convictions for this offence leads, in my judgment, inexorably to the conclusion that the sentences imposed on these three counts are manifestly and appellably inadequate. 19 I would, therefore, allow the appeal and re-sentence the prisoner. The appropriate course is to not disturb the sentence on Count 4, which was a fixed term of 12 months to commence on 24 November 2002 and expire on 24 November 2003. I would also not disturb the head sentences for Counts 2 and 3 but would make them cumulative on the sentences for Counts 1 and 4. 20 I would, therefore, set aside the sentences on Counts 2 and 3 and re-sentence the prisoner to imprisonment for two years to commence on 25 November 2003 and expire on 24 November 2005 with a non-parole period of six months to commence on 25 November 2003 and expire on 24 May 2004. The result of these sentences will be that the prisoner will serve 18 months full time custody instead of 12 months. 21 It is important that the prisoner have a reasonably long period of post release supervision. He has been developing some skills in gaol which may make it possible for him to lead a life free of crime after his release but this will require a reasonable period of post custody supervision which the sentence I have proposed would allow. I would, therefore, order his release on parole on 24 May 2004. 22 GROVE J: I agree with Handley JA. 23 ADAMS J: I also agree. 24 HANDLEY JA: The sentences are as I have announced. ********** Last Modified: 11/24/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.