Bickley v The Queen

[2018] NSWCCA 153

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Bickley v R [2018] NSWCCA 153
Hearing dates:	20 July 2018
Decision date:	17 August 2018
Before:	Hoeben CJ at CL at [1]; Fullerton J at [2] R A Hulme J at [3]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	CRIME – sentence appeal – aggravated break and enter and commit serious indictable offence – sentenced to 3 years imprisonment with 1 year 9 months non-parole period –extensive criminal history and substance abuse problem – on bail at time of offence – sentence reduced for early guilty plea – whether judge erred by failing to adjourn pursuant to Crimes Sentencing Procedure Act 1999 (NSW) s 11 – clearly open to judge to decline to adjourn pursuant to s 11 – whether sentence manifestly excessive – sentencing statistics consistent with appellant’s sentence – cannot be said that sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) ss 61, 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW) s 11
Category:	Principal judgment
Parties:	Ryan Daniel Bickley (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant self-represented Ms M England (Crown)   Solicitors: Solicitor for Public Prosecutions
File Number(s):	2017/47125
Decision under appeal	Court or tribunal: District Court Date of Decision: 15 September 2017 Before: Wells DCJ File Number(s): 2017/47125

Judgment

1. HOEBEN CJ at CL: I agree with the reasons of R A Hulme J and the orders which he proposes

2. FULLERTON J: I agree with the orders R A Hulme J proposes and his Honour’s reasons.

3. R A HULME J: Ryan Daniel Bickley seeks leave to appeal in respect of a sentence imposed upon him by her Honour Judge Wells SC in the District Court at Lismore on 15 September 2017.

4. Mr Bickley pleaded guilty to an offence of aggravated break and enter and commit serious indictable offence, namely assault occasioning actual bodily harm, contrary s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 20 years and there is also a standard non-parole period of 5 years.

5. Mr Bickley asked the judge to take into account his guilt in respect of an offence of assault, contrary to s 61 of the Crimes Act, that was listed on a Form 1 document.

6. The plea of guilty was entered at an early stage so the judge reduced the sentence she would otherwise have imposed by 25 per cent. As a result, the sentence was 3 years with a non-parole period of 1 year 9 months dating from 14 April 2017.

Grounds of appeal

7. Mr Bickley pursued his application for leave to appeal without the benefit of legal representation. He formulated the following proposed grounds of appeal:

1.   Her Honour erred when she took into account my prospect for rehabilitation.

2.   Her Honour failed to consider the family circumstances surrounding the offence and the victim, saying rehab was what I needed.

3.   Her Honour was not provided with the numerous character references now available.

4. The judge erred in failing to adjourn the proceeding to s 11 of the Crimes Sentencing Procedure Act to allow the applicant to attend rehab prior to sentencing.

5.   The sentence was manifestly excessive considering the circumstances.

The offences

8. Mr Bickley is the nephew of the victim of the primary offence; younger than him by about four years. The victim lived in a house at High Street, Lismore Heights and under this house there was a car which contained some of Mr Bickley’s belongings. On 13 February 2017 Mr Bickley attended the home in order to retrieve some of his things. The victim challenged him about having a bag of syringes and the fact that the victim did not like drug activity in his house. There was a heated verbal confrontation. Mr Bickley was asked to leave. He did. The victim locked the front door after him.

9. Mr Bickley returned to the front door, kicked it in and entered the house. He commenced to punch the victim in the head. The victim got up and ran to the kitchen. Mr Bickley chased after him, knocked him to the floor and then hit and kicked him to the head and legs. The victim suffered a cut to the nose, grazing and bruising to his head and legs.

10. The victim of the assault offence which was taken into account was a friend of the primary victim. He had tried to intervene by telling Mr Bickley to stop and trying to pull him off the victim. Mr Bickley turned and punched him once to the forehead with a clenched fist before leaving the house.

11. Mr Bickley was on bail at the time of these offences for an unrelated offence of assault occasioning actual bodily harm committed on 16 March 2016. Subsequently, Mr Bickley was imprisoned for four months for that offence and served the sentence while he was on remand for the index offences.

Personal circumstances of the applicant

12. Mr Bickley was born in 1980 and so he was aged 36 at the time of the offences and 37 at the time of sentencing.

13. Mr Bickley has an extensive criminal history comprising numerous convictions in Victoria, Queensland and New South Wales. The earliest entry is in 1995 when the applicant was aged 15. The numerous convictions are primarily for dishonesty offences and minor drug offences. The record is indicative of a person with chronic substance abuse issues. Notably in the context of the present application, there are numerous instances of breaching various court orders, of which more will be said later.

14. Mr Bickley’s case at the sentence hearing comprised his own testimony as well as the tender of a report by Mr Patrick Sheehan, forensic psychologist, four testimonials and a letter confirming the availability of a placement at the Victory House Rehabilitation Program at Tweed Heads. The Crown tendered a report from a Community Corrections Officer which confirmed the availability of a placement at the Balund-a residential rehabilitation program at Tabulam.

15. Drawing from that material the judge described Mr Bickley as having a very dysfunctional upbringing with the early loss of significant people in his life, namely his mother who died when he was five, being homeless for a period, suffering frequent moves and consequently having a disruptive education. The history also included that he was sexually abused as a young person. The judge concluded that these matters had led to enormous difficulty for Mr Bickley, particularly in relation to his abuse of substances.

16. Mr Bickley had a chronic history of substance abuse from a young age and he had claimed in the report to the psychologist, Mr Sheehan, that it was in fact his uncle, the victim of the primary offence, who introduced him to drug use when he was young. The judge said:

“It is relevant to take into account that he had taken up the abuse of drugs from a young age which puts him into a different category in relation to those who take up substance abuse as adults. Clearly his uncle was a very poor role model and the commencement of drug abuse occurred at an age at which he would not have appreciated the addictive and dangerous qualities of those drugs.”

17. The judge took the time to recount in more detail Mr Bickley’s life history as follows:

“I should briefly outline the trouble in his early life after his mother’s death when he was aged a little more than five years old. He had a recollection of her condition. She had apparently contracted AIDS as a result of a blood transfusion. After she died he was initially placed in the care of his stepfather who later abandoned him when the offender was aged nine. He spent a short period with his grandparents who are the parents of the first complainant. He has alleged that he was sexually interfered [with] by his uncle with when he was aged four. He was later placed into boarding schools and at one point ran away. He says in that time he lived with a paedophile but that person did not sexually interfere with him.

Following his extraction from that situation he served two consecutive 12 month periods of juvenile detention and by the age of 16 he was living on the streets. He described a difficult education no doubt arising from the disruption in his early years. Despite that however, he described having no problems academically. He appreciated that whilst he was a boarder at a Marist Brothers school and at St Joseph’s College in Brisbane that he had very good opportunities to obtain an education. However he finally absconded from school and did not return. In the time that he spent in juvenile detention he completed the equivalent of his year 12 studies.

Like his education, his employment history was disrupted. He has had various vocational occupations in commercial cooking, as a rigger, in First Aid and in welding. For a period during his late twenties and early thirties he was employed with an engineering company and showed some good prospects but his drug abuse saw a relapse. Subsequently he worked with his grandparents at their café in Nimbin. Aside from those aspects of his life he had three intimate relationships, having three children with two different mothers. He has not had contact with any of his children for three years according to the psychological report.”

18. The judge noted that Mr Bickley had spent 16 months at Odyssey House in a residential rehabilitation program at the age of 21 and had spoken favourably about that experience. He told the psychologist that he did not relapse to heroin use for five years but did abuse amphetamines within a year and then began to use alcohol and cannabis. Then, after the overdose of a friend, Mr Bickley checked into a rehabilitation or treatment clinic and commenced a Suboxone program. He told Mr Sheehan that he had not used opiates or amphetamines since. After going back into custody in early 2017 he had transferred to the methadone program but he managed to cease methadone a short time before the sentence hearing as that was a prerequisite for entry into the residential programs referred to earlier.

19. The judge referred to expressions of remorse by Mr Bickley both to the psychologist and in his evidence and concluded that he was genuinely remorseful. She was satisfied the evidence disclosed Mr Bickley had some capability for rehabilitating himself. She accepted that he was a person of ability and intelligence. She referred to him having had opportunities in the past and said, “he has been gainfully employed but his record is one that reflects a lack of willingness or capacity for rehabilitation given the very serious offences that are on his record”. Accordingly, her Honour was not able to make any clear finding as to Mr Bickley’s prospects of rehabilitation.

20. An application was made at the sentence hearing that the judge deal with the matter pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by granting Mr Bickley bail with a condition that he undergo an extended residential rehabilitation program before final sentence was assessed. In relation to that the judge said:

“I accept that he is willing to undergo extended residential rehabilitation but in all of the circumstances it would not, as submitted on his behalf, be appropriate to adjourn the matter pursuant to s 11 so that he can undertake that opportunity. The problem with that proposal is two-fold. Firstly, the objective seriousness of his offending is substantial and too serious for him to be given an opportunity to rehabilitate himself at this stage and, secondly, it is an offer on his part that is rather too little, too late. Consequently taking into account those matters in particular the seriousness of the offence and being mindful of his subjective history the only appropriate sentence is one of full-time imprisonment.”

Grounds 1, 2 and 4 – rehabilitation prospects and the prospect of undergoing a residential rehabilitation program

21. It is convenient to discuss these grounds together as they are concerned with the judge's assessment of Mr Bickley's rehabilitation prospects and the proposal that he be permitted to undertake a residential rehabilitation program prior to final sentencing.

22. There were a number of matters that supported Mr Bickley's proposal that the matter be dealt with by way of deferral of sentence under s 11 of the Crimes (Sentencing Procedure) Act.

23. Mr Sheehan's report was favourable:

"Since being remanded to custody in February 2017, Mr Bickley reports to have ceased all substance use and maintained his medications, currently working as a wing sweeper (a position of trust in custody). He is formulating a coherent plan for release with recent approvals to Balund-a and Victory House. His success in weaning off methadone over the past six months shows good intent. In my view his return to the community via a suitably intensive residential rehabilitation program (such as Victory House) is the optimal pathway, allowing staged integration to the autonomy of community life and re-acquainting him with the insight and management plans required for enduring abstinence. Mr Bickley's evident good intelligence and employment potential may provide a useful diversion from the self-destructive path he has followed, combined with the onset of maturity as he moves towards his forties (a decade of life where desistence from offending becomes more common)."

24. A testimonial by Mr Bickley's partner of four years was positive in a variety of respects including her opinion that he was sincere in his desire to seek professional help for his long-standing substance use issues.

25. Testimonials by three persons who had met Mr Bickley and become acquainted with him through his work as a waiter in a café in Nimbin in recent years were positive in relation to his general character as they perceived it. One of them, Mr Michael Downs, also said Mr Bickley had spoken of a commitment to overcoming his past addiction problems.

26. Mr Bickley gave evidence about his completion of the Odyssey House program in his early 20s. He said that he gained considerable benefit from it but, because of his relative immaturity at the time, it was not something that afforded him a long-term solution to his problem with drug addiction. He considered that his current level of maturity would enable him to achieve greater benefit from intensive rehabilitation.

27. Mr Bickley was asked why the court should have confidence that he would complete a residential program given his history of breaching conditional orders. He said that he was now older and "I'm over this life". He also referred to the support he had from his grandparents and his partner who were present in court. In re-examination he said that his partner had paid the $200 deposit for him to enter the Victory House program. He also stressed that it was he who had made the inquiries and had secured the offers from the Balund-a and Victory House programs.

28. Mr Bickley's legal representative made quite detailed submissions to the judge in respect of the application that there be a lengthy adjournment pursuant to s 11. In terms of the evidence that was before the court it is apparent that she addressed all of the salient features and put the case for Mr Bickley as best it could be put.

29. The legal representative for the Crown opposed the application on the basis of the objective seriousness of the offending; Mr Bickley's criminal record; and his history of non-compliance with conditional orders.

30. The reasons given by the judge for refusing the application for the matter to be dealt with under s 11 have been set out earlier (at [20]). As it was explained to Mr Bickley at the hearing, it is not a matter for this Court to re-hear and re-determine the question; rather it is a question of whether it was open to the judge in the exercise of her discretion to refuse to grant his request.

31. It must be acknowledged that after such a long interaction with the criminal justice systems in three States, largely attributable to his history of drug and alcohol abuse (which are no doubt attributable to a significant degree to the circumstances of his upbringing), it would be in both the community's interest as well as Mr Bickley's if he were to successfully engage in a long-term residential rehabilitation program.

32. That said, the matters taken into account by the learned judge in rejecting the application were significant considerations in themselves. There is no challenge to the judge's finding that the objective seriousness of the primary offence was in the middle of the range, albeit at the lower end of it. That is a matter of some significance when it is to be recalled that the offence is one that has a maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years.

33. The judge's reference to Mr Bickley's "subjective history" was undoubtedly a reference, at least in part, to his criminal history which was a significant feature of the case as well. True it is, as he pointed out in his oral submissions to the Court, the more serious offending has generally been in the more distant past. However, the fact that he was on bail for another crime of violence at the time he committed the subject offences was an aggravating matter that could not be ignored.

34. Mr Bickley was also not assisted by the fact that the bail in question had been varied to permit him to engage in the Magistrates' Early Referral Into Treatment ("MERIT") program to address his drug and alcohol issues. He agreed in his evidence before the primary judge that despite having been on that program he had consumed alcohol to the point of intoxication on the night of committing the subject offences. He sought to minimise the significance of this by saying, "I wasn't offered rehab. I took on a little bit of counselling …".

35. Another matter that did not inspire confidence that Mr Bickley would adhere to conditions the court might impose in relation to him attending a rehabilitation program was that his criminal history is littered with instances of breaching suspended and community-based sentence orders as well as bail and parole.

36. No error can be discerned in the judge's assessment of Mr Bickley's rehabilitation prospects. The regrettable fact is that, in weighing the various competing considerations, it was clearly open to her Honour to decline to deal with the matter by way of deferral of sentencing under s 11 of the Crimes (Sentencing Procedure) Act. Accordingly, these grounds of appeal must fail.

Ground 3 – character references

37. This ground is concerned with the judge not having been provided with character references which are now available.

38. Two letters were provided at the hearing of the application but they both post-date the hearing in the District Court and, hence, could not have been provided to the sentencing judge. Why their authors could not, or were not, asked to provide references for the purpose of the District Court proceedings is not apparent. In any event, the applicant was well served by the tender of the four testimonials referred to earlier (at [24]-[25]) in conjunction with the report of Mr Sheehan which sets out his history in considerable detail.

39. No basis has been shown upon which the Court could consider receiving further character references that were not tendered in the sentencing court.

40. The Crown helpfully suggested that the two letters could be considered in the event that the Court was satisfied that error in some other respect was established and that it should consider what new sentence might be imposed. That is the extent to which the Court could have regard to them.

Ground 5 – the sentence is manifestly excessive

41. Mr Bickley's written submissions in support of this ground referred to his family, including the victim, agreeing that rehabilitation was the best course of action. That may be so but the responsibility of assessing the appropriate sentence was a matter for the sentencing judge.

42. Mr Bickley raised an issue about whether a 25 per cent allowance had in fact been made in his favour on account of his plea of guilty. The judge did not say anything about this in her reasons. After she announced the sentence, Mr Bickley, who was appearing by way of AVL, asked her directly, "Is that taking into account the 25 per cent for the early plea of guilty your Honour?" Her Honour responded:

"Yes that was taken into account, I actually did raise that – I failed to mention that in my judgment but I did raise that with the lawyers just before you came on the screen and they reminded me that it was 25 per cent discount and I did take that into account Mr Bickley."

43. Without hesitation I would take her Honour at her word. However, Mr Bickley has the further assurance that his lawyer, who was present when all of this occurred, obviously felt no need to intervene to correct anything that her Honour said.

44. Mr Bickley made reference to sentencing statistics maintained by the Judicial Commission of NSW. It emerged during a discussion about them that the 3 year sentence imposed upon him was quite an unremarkable one in comparison with sentences imposed upon a large number of other offenders for offences against s 112(2) of the Crimes Act. (For example, 75 per cent of offenders who pleaded guilty and received a full-time gaol sentence received a term in the range of 2 to 4 years.)

45. The principal features of this case may be summarised:

●   The offence was assessed as being at the lower end of the middle of the range of objective seriousness.

●   The offence was aggravated by the fact that Mr Bickley was on bail for an early offence of violence.

●   The legislative guideposts for sentencing were a maximum penalty of 20 years and a standard non-parole period of 5 years.

●   The sentence was reduced by 25 per cent from what it otherwise would have been on account of an early plea of guilty.

●   Mr Bickley had an extensive criminal history going back over 20 years with a significant number of prison sentences as well as a significant number of breaches of opportunities for conditional liberty. Generally speaking, however, the offending in more recent years was not as serious as in earlier years.

●   Mr Bickley's dysfunctional, tragic and disadvantaged background was a significant mitigating factor. So too was the judge's acceptance that his addiction to drugs commenced when he was at an age when he would not have appreciated the consequences. He had achieved some success in rehabilitation over the years but unfortunately nothing yet that has been enduring.

●   There was a finding that Mr Bickley was genuinely remorseful.

●   That, together with support he clearly has from his partner, family and friends in the community, together with his clearly apparent intelligence, indicate that his rehabilitation prospects are far from being a lost cause.

46. Have regard to all of the circumstances but particularly those itemised above, it cannot be said that the sentence imposed by Judge Wells was "unreasonable or plainly unjust" which is the characterisation necessary for a conclusion that a sentence is "manifestly excessive".

Orders

47. Mr Bickley's proposed appeal was clearly arguable and it has been fully considered on its merits. For those reasons there should be a grant of leave to appeal. However, I propose the following orders:

1.   Leave to appeal against sentence granted.

2.   Appeal dismissed.

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Decision last updated: 17 August 2018