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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hickling; R v Avery

Details

AGLC: R v Hickling; R v Avery [2004] NSWCCA 168
Case: [2004] NSWCCA 168
Decision Date: 7 May 2004

CaseChat Overview and Summary

The respondents, Hickling and Avery, were convicted of various offences against police officers and sentenced in the County Court of Victoria. The Crown appealed against the adequacy of the sentences, arguing they were too lenient. The Supreme Court of Victoria heard the appeal and considered the sentences imposed on the respondents. The central legal issues were whether the original sentences were inadequate and whether the trial judge had properly considered the impact of concurrent custody and the specific social and economic disadvantages faced by the respondents, who were Indigenous Australians.

The Supreme Court examined the sentences and noted the trial judge's consideration of the real effect of concurrent custody and the respondents' background. However, the court found that the sentences did not adequately reflect the seriousness of the offences or the need for deterrence. The court emphasised the importance of considering the respondents' Indigenous background and the specific social and economic challenges they faced. Despite these factors, the court concluded that the sentences did not sufficiently address the need for general and specific deterrence and the protection of the community.

In light of the above, the Supreme Court allowed the Crown's appeal and varied the sentences imposed on Hickling and Avery. The court found the original sentences to be inadequate and re-sentenced the respondents, taking into account the seriousness of the offences and the need for deterrence. The court also considered the respondents' background and the real effect of concurrent custody, but ultimately determined that the sentences needed to be increased to adequately reflect the gravity of the crimes committed against police officers. The final orders of the court were that the sentences imposed on Hickling and Avery were varied, resulting in increased terms of imprisonment.

Orders