R v Hickling; R v Avery - [2004] NSWCCA 168

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

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

FILE NUMBER(S):
60053/04
60054/04

HEARING DATE(S): Friday 7 May 2004

JUDGMENT DATE: 07/05/2004

PARTIES:
Regina v Darryl Ernest Hickling
Regina v Kenneth Cecil Eric Avery

JUDGMENT OF: Grove J Howie J Newman AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0186

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

COUNSEL:
D. Woodburne (Crown/Applicant)
R. Hulme SC (Respondents)

SOLICITORS:
S. Kavanagh (Crown/Applicant)
R. Mathur (Respondents)

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

LEGISLATION CITED:

DECISION:
APPEALS DISMISSED

JUDGMENT:

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

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.
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.
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.
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.
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.
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.
Both the respondents are indigenous Australian aboriginals. Both were aged nineteen years when the offences were committed.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.”
The learned judge also had what I would describe as very insightful evidence from David Edward Bracks, a man aged fifty four years, who worked as a volunteer community worker in and around the local aboriginal community. His family had lived in the district for over a century and, although he himself lived away for a time, he had a lifetime of association with that community. Mr Bracks went to see Sergeant Davidson about a week after the offence. He gave evidence that
“I apologized from the community’s point of view, that nobody wanted to see this happen, nor that nobody wished for any harm to him or to anyone else in the community, and that sometimes because of alcohol there is a madness that happens and that we are trying to address this, and it is a very difficult situation, and that I thought that these boys needed care and not necessarily strong prosecution, and they need welfare, they need people to talk to them and look after them.”
Mr Bracks was acquainted with both respondents. As I have said, he gave considerable insightful evidence about the continuing tragedy in the community of unoccupied and consequently bored and vulnerable people, especially the youth.
Hickling is the youngest of ten children. His parents separated when he was born and they are both now deceased. He left school at the age of twelve and is unable to read or write. He commenced to abuse alcohol and drugs before reaching his teen years. Dr Roland, a psychologist, concluded that he had disorders of alcohol dependence and attention deficit hyperactivity with possible brain impairment.
Without elaborating the detail which is not in dispute, it is apparent that the circumstances of Hickling’s upbringing and life have been in an environment or disadvantage, alcohol abuse and violence.
Hickling’s youth has already been mentioned, but nevertheless he is the father of two children from two different mothers and it was said that he maintained contact. Mr Bracks had observed that in the community a huge amount of alcohol was consumed and that there was a lot of aggression particularly when alcohol was involved. He observed that there had not been a lot of guidance given about proper social behaviour and that promiscuous relationships were extremely common.
Avery is the fifth eldest of his mother’s ten children and shares the same father with three of his siblings. Both of his parents were alcoholics and when he was a young child his mother’s problems were such that he was taken away from her and placed in the care of an uncle. His father played no part in his upbringing. At the age of five he was treated with drugs for what was diagnosed as attention deficit hyperactivity disorder. He was expelled from school at the age of fifteen. At school he has taunted due to a speech impediment. This has later been identified as a congenital overgrowth syndrome, a symptom of which was an enlarged tongue and when he was aged seventeen there was surgical intervention to reduce the width of his tongue. The syndrome with which that is connected also caused complications with liver, kidney and pancreas. He has had remedial operations on both kidneys and eventually one was removed when he was very young. He has had a bowel operation to correct an abdominal wall defect. He was also subjected to surgery to correct hip and leg problems caused when he was struck by a car at a very young age.
He has also been seen by Dr Roland. He cannot read or write. He has poor impulse control and assessment places him in the borderline range of intelligence.
I have already observed that both respondents were drunk at the time of the offences, but both fit the profile of the observations of Wood J in R v Fernando 1992 70 A Crim R 58 (properly understood):
“While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the Court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralizing factors have placed heavy stresses on them, forcing their resort to alcohol and compounding its worst effects”.
The learned sentencing judge did not disguise his view that, despite the objectively serious offences, gaol was “the last possible place that one should send them to”. It is plain that his view was that the wider community’s interest would be best served by some attempt to address the deep rooted problems of these respondents and an attempt to do this could be undertaken in the course of parole but would be highly unlikely whilst they were members of the prison population.
The respondents were notified that the Director of Public Prosecutions was considering an appeal on 7 January 2004 approximately three weeks after sentence. However, the appeal notice was not signed for a further month until 10 February 2004. As already stated their respective release dates are now imminent. Despite the considerable weight that must attach to the subjective circumstances of these respondents, I reach an overall conclusion that the Crown’s contention that the sentences were inadequate is made out. Nevertheless there remains a discretion in this Court to dismiss a Crown appeal. It is submitted that there are no discretionary matters which ought militate against the intervention of this Court but I would regard the circumstance that the respondents are at the threshold of freedom as such a matter. Even if the Court were to intervene, any increase would be modest and it is difficult to discern any practical purpose for so doing.
It is important in my view that sentences of full time custody were imposed in order to reflect the gravity of attacks upon a police officer honourably seeking to exercise his duty to maintain peace and order in the community. Such sentences were imposed but as the Crown has pointed out their effect was in each individual case less onerous than might appear. Nevertheless that conclusion can only be reached by analysis of the individual circumstances and as a matter of general deterrence the impositions were of value.
I reiterate my view that the sentences were inadequate, however in the exercise of the residual discretion of this Court I would in each case dismiss the Crown appeal.
HOWIE J: I agree. The sentences were, in my view, manifestly inadequate. In particular the comment by his Honour when he said, “I do not propose to particularly add to their misfortune as young men, who are spending more of their time in gaol than out” reflects an erroneous approach to sentencing for the particular offences before the Court.
The respondents, that is you two there, should understand that you were dealt with far too leniently by his Honour and that your behaviour was serious criminal conduct which required and justified a significant gaol sentence over and above what you were serving at the time and what you will serve before being released. You should not expect such leniency in the future, particularly in regard to any act of violence by yourself against any person and, in particular, police officers, and that is whether you are under the influence of alcohol or not.
I agree that the appeal should be dismissed.
NEWMAN AJ: I would also agree and add that I agree with the reasons given by the presiding Judge and by Howie J.
GROVE J: The orders of the Court, therefore, will be in each case the Crown appeal is dismissed.
The respondents can be removed.
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LAST UPDATED: 26/05/2004