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

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

The sentences were manifestly inadequate on an objective assessment, particularly given the seriousness of the attack on a police officer, the use of an offensive weapon, group conduct, and offending while on conditional liberty. However, having regard to the respondents' significant subjective disadvantages, the fact that full-time custody had been imposed, their imminent release dates, and the limited practical purpose of any modest increase, the Court exercised its residual discretion to dismiss the Crown appeals.

Jurisdiction
Australia
Judgment Date
07 May 2004
Procedural Posture
Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court by Phelan DCJ
Outcome
Appeals dismissed
Legal Topics
['crown Appeal' 'manifest Inadequacy of Sentence' 'attack on Police Officer' 'offensive Weapon' 'concurrent Custody' 'indigenous Australian Aboriginal Offenders' 'alcohol Abuse and Socioeconomic Disadvantage' 'residual Discretion to Dismiss Crown Appeal']
['criminal Law' 'sentencing'] ['crown Appeal' 'manifest Inadequacy of Sentence' 'attack on Police Officer' 'offensive Weapon' 'concurrent Custody' 'indigenous Australian Aboriginal Offenders' 'alcohol Abuse and Socioeconomic Disadvantage' 'residual Discretion to Dismiss Crown Appeal']

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court by Phelan DCJ

Legal Issues

  1. 1 ["Whether the sentencing judge miscarried by backdating the sentences to commence on the respondents' respective dates of arrest." 'Whether the sentences imposed for using an offensive weapon contrary to s 33B(1) of the Crimes Act 1900 were manifestly inadequate.' "Whether sufficient weight was given to aggravating factors including offending while on parole or conditional liberty and the Form 1 offence in Avery's case." 'Whether, despite inadequacy, the Court should exercise its residual discretion to dismiss the Crown appeals.']

Ratio Decidendi

The sentences were manifestly inadequate on an objective assessment, particularly given the seriousness of the attack on a police officer, the use of an offensive weapon, group conduct, and offending while on conditional liberty. However, having regard to the respondents' significant subjective disadvantages, the fact that full-time custody had been imposed, their imminent release dates, and the limited practical purpose of any modest increase, the Court exercised its residual discretion to dismiss the Crown appeals.

Court Disposition

Appeals dismissed

Orders

  • ['In each case the Crown appeal is dismissed.']