R v HICKEY [2012] NSWDC 103

District Court New South Wales

Medium Neutral Citation: R v HICKEY [2012] NSWDC 103 Hearing dates: 3 May 2012 Decision date: 03 May 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment with a non parole period of 3 years and a head sentence of 6 years. Catchwords: CRIMINAL LAW - Sentence - Robbery in company - Vulnerable victim Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown Mervin Joseph Hickey Representation: Director of Public Prosecutions Aboriginal Legal Services - Offender File Number(s): 2011/361699

SENTENCE 1HIS HONOUR: On Sunday, 6 November 2011 Ms Victoria McCaffrey won a jackpot on a poker machine. I have got no doubt that she wishes now that she had not been so lucky because it was that short term gain which led to her being subject to a cold and callous crime, a crime which this offender and another man took advantage of both Ms McCaffrey's good luck and also her significant vulnerability. 2Ms McCaffrey's has problems with her eyesight, to the extent that she is legally blind. She wears heavy prescription glasses. It is conceded that her behaviour, as observed by the offender, made him well aware of her problems with her sight. Thus when the offender, together with a co-offender named Stephen Venios, robbed Ms McCaffrey, he knew full well that he was robbing a highly vulnerable person. This itself is enough to demonstrate how objectively serious the offender's conduct was. 3Ms McCaffrey was playing the poker machines at the Grosvenor Hotel. Present also in the hotel were the offender, his partner and his mother-in-law. Because of Ms McCaffrey's problems with her sight, she was at first unaware that she had won a jackpot. It was not until the offender's mother-in-law told her, that she learned of her then good fortune. She was generous with her winnings, buying drinks for other people in the bar and even buying a carton of beer for the offender's mother-in-law. 4She was given the proceeds in cash, $1,800, less some money that had been spent on alcohol. She put the money in her pocket and then headed home. 5In the meantime the offender met up with his cooffender. The statement of facts reveals that the offender was seen making a telephone call, shortly after which the cooffender arrived on the scene. The inference, in the absence of any other evidence, that I would draw from that circumstance is that the offender was calling his cooffender probably and most likely in order that they could together commit the crime of robbing Ms McCaffrey, but in evidence today the offender denied that he had called his cooffender on the phone, claiming instead that he had called his mother. 6The offender's case is that he was the junior partner in the offence which I will shortly describe. Given the state of the evidence that I have, I cannot find to the contrary. I pause in my recitation of the facts to speak about this circumstance. As I have said, I will be sentencing Mr Hickey on the basis that he was led into this offence by his cooffender, Mr Venios. Should Mr Venios ever be sentenced for his part, I have got little doubt that he will claim that he was led into his involvement by Mr Hickey. 7That raises the very uncomfortable prospect of two offenders being sentenced for an offence, each on the basis that he was less involved than his cooffender. It is for this reason that it is usually better that cooffenders are sentenced together, so that that in this case the evidence of what Mr Hickey said would be admissible against Mr Venios and the evidence of what Mr Venios said, if anything, would be admissible against Mr Hickey. 8I have got no doubt that the community is concerned, and in particular Ms McCaffrey will be concerned, at Mr Hickey being dealt with today without any evidence from Mr Venios, which perhaps might have contradicted what Mr Hickey said. It might have also been interesting to learn what any telephone records would say as to who the offender called shortly before Mr Venios turned up. 9I at one stage gave some thought to adjourning this matter until Mr Venios's matter could be dealt with at the same time, however his matter is still in the Local Court and the indications are at this stage that he will be defending the matter and that a trial will be necessary in his case. There will therefore be a substantial delay before Mr Venios could be sentenced, (assuming of course that he is ultimately found guilty or pleads guilty). I appreciate that what I am describing is not a terribly satisfactory state of affairs, but it is the best that can be done in the present circumstances. 10I want to emphasise that nothing I have said so far has meant that I will sentence Mr Hickey on anything other than the evidence which is presently before me, which I repeat suggests that he was led by Mr Venios, rather than the other way around. 11Returning to the circumstances of this offence, once Mr Venios and the offender came together they followed Ms McCaffrey to her home. They are captured on CCTV for a large part of the afternoon and evening, so what they did is relatively easy to determine. Once Ms McCaffrey arrived at the building where she lived, the offender and his cooffender hid and watched the indicator on the lift, which Ms McCaffrey entered, in order to work out what floor she lived on. That way they were able to determine that she lived on level 10 and so the two men also went to level 10. 12By the time they got there, Ms McCaffrey had unlocked her security door and the front door and was heading inside. Both these men approached Ms McCaffrey from behind. She was pushed forward a number of times. She stumbled and fell to the floor. One of them then straddled her legs and pinned her to the floor. She could only see that there were two men there and that they had their faces covered. They began to physically search through her pockets, removing the money which she had won a short time earlier. Once all the money was taken she heard one male say to the other, "Just do it, just do it." To add insult to injury, one of the men took off her glasses and threw them away. 13She was no doubt terrified. She had earlier been the victim of a very serious offence and this circumstance must have clearly effected the way she was feeling that evening. She said, "Just don't hurt me". Rather than reassuring her, one of the men replied, "I know you've got more, where is it?" This could only have added to the concern that Ms McCaffrey was feeling as to what might happen to her. She repeated, "Just don't hurt me" and told the offender that she did not have any more. 14Finally the two men left the apartment. The offender was arrested a short time later, after the CCTV footage from the hotel and Ms McCaffrey's apartment building were viewed by police. The offender declined to be interviewed when police approached him. He was arrested on 11 November 2011 and has been in custody since then. 15To say that the offence is objectively serious significantly understates the events that I have just described. To rob a blind woman, especially when you know that the woman is blind, is, as I earlier described, a cold and callous crime. 16A victim impact statement was read on behalf of Ms McCaffrey which sets out eloquently the harm she has suffered. Part of the harm she did suffer was as a result of the circumstance that she had earlier suffered as a victim of a very serious offence. The offender was not to know that. Whilst the consequences of an offence can be taken into account in determining the sentence to be imposed upon an offender, the concept of foreseeability limits which consequences can be taken into account. Any woman with visual impairment to the extent that Ms McCaffrey suffers would suffer harm as the result of an offence of this kind. That is the harm that I will take into account when sentencing the offender. 17I earlier noted that it was an understatement to say that this offence was serious. It is also an understatement to say that the offender had a troubled background. The awful beginnings of this troubled background can be very simply stated. His mother murdered his father. As a result, he went to live with his grandparents. His grandmother died when he was thirteen and his grandfather died a year later. His grandparents were a very positive influence on his life. They did not abuse substances, nor were they violent or aggressive, but their stable support was lost to him at a very early age. His close cousin died in the 2004 Redfern riots in circumstances which are extremely well known. He has therefore lost a lot of people who are close to him. It is obvious that these losses had a significant effect upon him. 18He moved from the country to the city where, as is distressingly common, he became involved with other young people with little to do apart from drink, take drugs and commit crimes. He adopted that lifestyle. He began to drink. He began to take drugs and he began to commit crimes. 19He has an extensive criminal record, including priors for robbery offences as a juvenile. This offence, and I have got no doubt others on his record as well, was committed because Mr Hickey wanted to get some money so that he could satisfy his various addictions. He wanted money to buy cigarettes, alcohol, cannabis and cocaine, and he saw an easy way to get it. 20He has had some success in the past, being able to give up his use of alcohol and drugs at times, but these have been ultimately unsuccessful as his involvement in the present offence demonstrates. He has some plans for the future. He is considering moving back to the country, where he has an aunt and uncle. He is considering completing year ten. He has a partner, and three children. He wishes upon his release from custody to live with them. 21He expressed his remorse to the psychologist. He was able to empathise with the way Ms McCaffrey must now be feeling. I cannot find that his prospects for rehabilitation are good, as a lot will depend on how he responds to opportunities which are offered to him upon his release from custody. It is to be hoped that he will respond positively to them. If he does not, I have little doubt that he will commit further crimes and become ultimately one of those sad young men who measures out his life in court dates and custodial sentences. He is still a relatively young man. He has the opportunity upon his release from custody to take steps to put his offending ways behind him. Whether he takes those opportunities remains to be seen. 22The offender says that he committed this offence whilst he was intoxicated. In some cases that can be a mitigating feature, in other cases it is not. The evidence before me establishes that his intoxication reduced his ability to reason about what he was doing and so I will regard it as a mitigating feature in this case, reducing his moral culpability, albeit by a relatively small amount. Even highly intoxicated people know that it is wrong to rob a blind woman who has just had some success on the poker machines. 23Of course I was referred to the R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R guideline judgment in submissions by both sides. Notwithstanding that that guideline was for an offence of armed robbery, it has been held that it is a useful guideline also for the appropriate sentence in cases of this kind, namely robbery in company. Of course there are some differences between the offence postulated in the Henry guideline and this. Working in the offender's favour is that his plea of guilty was not of limited utility, it was an early plea of guilty. I would discount the sentence I would otherwise impose by twentyfive per cent to reflect that circumstance. (To make it clear, I do not mean twentyfive per cent less than the Henry guideline sentence because that itself was postulated on a late plea of guilty). 24Although the maximum penalties are the same, it is a relevant circumstance that the offender has not been dealt with for armed robbery. On the other hand, the offender does not have a limited criminal history and this offence occurred in the victim's own home, a circumstance not at all taken into account by the Court of Criminal Appeal in setting the Henry guideline sentence of four to five years. 25The Crown opposed any finding of special circumstances in the offender's favour. I am going to make a finding in the offender's favour because of his age, and because of, most importantly, the circumstance that if Mr Hickey can deal with his problems, particularly those relating to substance abuse, he will be less likely to commit crimes in the future. Ultimately the purpose of sentencing is to protect the community. In this case, at Mr Hickey's age, that purpose is best achieved by extending him some leniency, which would certainly not be available to him were he to continue committing offences. 26Another reason that I will make a finding of special circumstances is this. The evidence clearly establishes that the best way that Mr Hickey can be put back on the right path is if he enters a long term residential rehabilitation program. Because of the length of the sentence I am about to announce, it is not me who sets the conditions of parole, but the Parole Board. Nevertheless I make it a very firm recommendation that Mr Hickey is not to be released to parole unless he immediately enters a long term residential rehabilitation program and satisfactorily completes it. It is my recommendation that unless Mr Hickey is willing to do that, parole should not be granted to him immediately at the conclusion of his nonparole period. 27It is a fundamental rule in sentencing that a sentence has to reflect the objective gravity of an offender's conduct. Notwithstanding Mr Hickey's terrible upbringing and the position he found himself at the age of thirteen, a long sentence is required to meet that fundamental rule. 28The offender is sentenced to imprisonment. I set a nonparole period of three years to date from 11 November 2011. I set a head sentence of six years. The nonparole period will expire on 10 November 2014, on which day the offender is eligible to be released to parole.