Bickley v R

1. [1]

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

2. [2]

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

3. [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. [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. [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. [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

1. [7]

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

The offences

1. [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.

2. [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.

3. [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.

4. [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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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:

6. [17]

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

7. [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.

8. [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.

9. [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:

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

1. [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.

2. [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.

3. [23]

   Mr Sheehan's report was favourable:

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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.

14. [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 …".

15. [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.

16. [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

1. [37]

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

2. [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.

3. [39]

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

4. [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

1. [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.

2. [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:

3. [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.

4. [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.)

5. [45]

   The principal features of this case may be summarised:

6. [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

1. [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: