Director of Public Prosecutions v Hickey
[2023] VCC 2447
•19 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 23-01376
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE HICKEY |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2023 | |
DATE OF SENTENCE: | 19 December 2023 | |
CASE MAY BE CITED AS: | DPP v Hickey | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2447 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Negligently cause serious injury – youthful offender
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; R v Verdins [2007] VSCA 102; Lennon v The Queen [2017] VSCA 85
Sentence:2 years 10 month YJC
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. R. Fleming | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr. N. Leslie | Slink and Keating |
HER HONOUR:
1Kane Hickey, you have pleaded guilty before me to a single charge of negligently causing serious injury, the maximum penalty for which is 10 years' imprisonment.
2You have no criminal history and come before the court with prior good character.
Circumstances of offending
3The circumstances of your offending were outlined in Exhibit A, the summary of prosecution opening dated 12 November 2023. I will summarise those facts here.
4
On 10 August 2022, you, your cousin Christian Bartczak and your friend
Caiden Fairyarranged to meet and take part in a ride and drive in the Seaford area.
5At around 7.15 pm that evening, Mr Bartczak and unknown person were riding motorcycles and exited a footbridge and rode south along Francis Street in Seaford. Mr Bartczak was riding a blue and white Yamaha dirt bike fitted with a headlight and taillight. The unknown rider was riding a green dirt bike without lights.
6
Both Mr Bartczak and the unknown rider reached the intersection of
Francis Street and Austin Road, Seaford and then rode around the intersection where they met you and Mr Fairy.
7You and Mr Fairy were in a Subaru Sedan on Austin Road. You were the driver of the vehicle and Mr Fairy was in the front passenger seat.
8You then began to accelerate heavily and turned north onto the Francis Street followed by Mr Bartczak and the unknown rider.
9Your group caught up to a white Volkswagen Polo that was also travelling north on Francis Street at a point in the road where there were a series of three speed bumps.
10Just prior the last speed bump, Mr Bartczak and the unknown rider overtook the white Volkswagen Polo.
11
You then drove onto the incorrect side of the road and overtook the
Volkswagen Polo at speed over the speed bump. Mr Bartczak and the unknown rider continued to ride north with you following.
12At that point you were observed trying to overtake the motorcycles three times.
13Mr Bartczak and the unknown rider gave you the opportunity to overtake by moving into the left-hand lane. In your attempts to overtake you were driving on the wrong side of the road and occasionally swerved into the gravel shoulder close to nearby trees.
14As you attempted to overtake the motorcycles, Mr Bartczak swerved his motorcycle to the front of your Subaru.
15The driver of the Volkswagen Polo was concerned for her safety due to your driving and that of the motorcycle's and slowed down to create distance between herself and the three vehicles.
16Whilst you were driving on the incorrect side of the road, you drove very close to the rear of Mr Bartczak's motorcycle. You backed off slightly and then drove closer a further two times.
17Mr Fairy said, 'We're gonna hit him', however you did not respond and continued driving erratically.
18Mr Bartczak then moved further across the right–hand lane and slowed his speed. As he did this, the front passenger side of the Subaru collided with the rear of his motorcycle.
19Mr Bartczak was ejected from the motorcycle, his body striking the front passenger side of your car's windscreen before he landed on the road. His helmet came off during the collision.
20The driver of the Volkswagen Polo stopped to assist and called Triple 0. The unknown rider stopped momentarily before riding away from the scene.
21Mr Bartczak was unresponsive and received assistance from passing drivers until paramedics arrived.
22Police then attended the scene where you identified yourself to police as the driver of the Subaru involved in the collision.
23Both your vehicle and Mr Bartczak's motorcycle was seized.
Gravity of offending
24This was not a momentary lapse in concentration. You drove erratically on the incorrect side of the road and failed to keep a safe distance between your vehicle and the motorcycle. I consider this to be mid-range offending given your repeated approaches to the motorcycle and your driving on the wrong side of the road.
Plea of guilty
25The parties agree that your plea of guilty was entered at the earliest opportunity. This has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.
26In those circumstances you have facilitated the administration of justice and you are entitled to a benefit for that.
27The utilitarian benefit of your plea is enhanced by the fact that the Worboyes' considerations are somewhat engaged as your plea was entered during the tail end of the pandemic. This results in a more pronounced amelioration of sentence than at other times.
28By your plea of guilty you have demonstrated an acceptance of responsibility for your offending. You have sought in both your record of interview and your psychological assessments to somewhat downplay your role. However, I take your apparent remorse into account.
Victim Impact Statement
29
I received a victim impact statement from Chantelle Hickey the mother of
Christian Bartczak. She detailed the immense changes in her son since this incident and the many things he can no longer do independently.
30Mr Bartczak can no longer shower himself, he is incontinent. He cannot cut up his meals. He is unsteady on his feet and falls over, his speech is slurred, his memory fails and he is reliant on his mother in every sense.
31Ms Hickey states that, 'This has taken everything away from my son. His whole life and ambitions have gone in one whole swoop. We have had our whole world turned upside down. I have to take care of Christian for the rest of my life and I sit here and think who's going to take care of him when I'm old and can't do this? Who can I trust to protect him and treat him well?'
32The impact of your offending has clearly been catastrophic and reaches beyond Christian Bartczak and has lifelong impacts on his family and loved ones.
33I must of course be careful not to let the consequences of your offending overwhelm the other sentencing considerations.
Personal circumstances
34I will turn now to your personal circumstances.
35You are now 19 years of age having been born in May 2004. You were 18 at the time of the collision.
36Your father died when you were a young child and your mother remarried. You have a younger sister and two younger half siblings. Your stepfather abused drugs and alcohol and perpetrated family violence against your mother. You witnessed this. In June 2022, your stepfather committed suicide and you found his body.
37You attended several different schools and completed the first term of Year 11. Since then you have worked at KFC for four years, completed a stint as a truck driver, and now work at a fish and chip shop five days per week. You have the promise of employment at Melbourne Masonry and I received a letter to this effect from Jakota Williams–Rossi, which was Exhibit 5.
38You lived for an extended period with your grandparents, however you are now residing with your mother and her partner.
39Your mother suffers kidney failure and is awaiting a transplant. Your younger sister suffered severe burns in an incident some time ago. You have cared for both of them at various times.
40Between the plea and sentence you found your uncle deceased after he died in his sleep.
41
I received a psychological report from Dr Aaron Cunningham, dated
22 February 2023, which was Exhibit 3.
42Dr Cunningham found that you present with “impairments in emotional regulation and distress tolerance. This is consistent with his verbal comprehension impairment. He presents with difficulty managing emotions and coping with stress.”
43
I further received a neuropsychological report from Dr Sami Yamin dated
27 July 2023 Exhibit 2.
44Dr Yamin conducted a number of assessments which revealed that you were functioning in a very low range with a full scale IQ of 74. Dr Yamin concluded that your cognitive difficulty is further exacerbated by low mood.
45You were found to meet the criteria for a mild to moderate major depressive disorder, and a mild to moderate generalised anxiety disorder. Dr Yamin links your cognitive deficits to your inability to make clear and rational choices and your general disinhibition.
46I also received a letter of support from Judith Coxy, Secretary of the Blue Danube and the Association of Southern Hungarians Exhibit 4.
Sentencing principles and factors
47Mr Hickey, this is a serious example of the offence of negligently causing serious injury. The driving in which you engaged put not only Mr Bartczak, but your passenger, the unknown motorcycle rider, other road users and yourself at risk of injury or death. By approaching the motorcycle in your car on three occasions, you were a collision waiting to happen. A collision which eventuated with catastrophic consequences. You will have to live with the consequences of your actions for the rest of your life. Particularly in circumstances where your victim was a relative.
48Your counsel, Mr Leslie submitted that the principles in Bugmy v The Queen are applicable in a general sense in this case. Ms Fleming for the prosecution agreed. I find that your exposure to alcohol and drug use, family violence, impaired mental health and suicide on the part of your stepfather, renders your moral culpability less than that of an offender whose formative years have not been so marred.
49It was further submitted on your behalf that the limbs 5 and 6 of Verdins apply. The prosecution conceded that limb 5 imprisonment will weigh more heavily on you than a person in normal health applies, but disputed the applicability of limb 6, the significant adverse effect of imprisonment on your mental health.
50I find that both limbs of Verdins 5 and 6 apply to you. Your depression and anxiety mean that imprisonment will weigh more heavily on you and both are according to Dr Yamin likely to be exacerbated in a custodial environment. I will moderate the sentence accordingly.
51While your rehabilitation is to be given primacy because of your age, general deterrence is of particular relevance because of the nature of the offending. As the Court of Appeal stated in Lennon v The Queen [2017] VSCA 85, “Offences of this kind are frequently committed by young offenders, with otherwise good character, who have no criminal history and good prospects for rehabilitation … It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.”
52You were supported in court by your mother and her partner and Ms Kovski at the plea, the author of the report referenced above. This support is clearly a protective factor for you. Similarly, you have a solid work history and an offer of employment upon release, all of which all augers well for you.
53While you have no prior convictions and specific deterrence is moderated it has some relevance to dissuade you from driving negligently in the future.
54Overall, I find you have good prospects for rehabilitation.
55Your counsel submitted that I should consider a Community Corrections Order by way of sentence. I do not consider this to be a realistic proposition in light of the nature and gravity of your conduct.
56The prosecution submitted that a term of imprisonment is called for.
57I ordered a youth justice centre assessment and received a written report dated 15 December 2023.
58In that assessment you reiterated the reasons leading to your mental health difficulties. You stated you are willing to engage in mental health supports to support your depressive and general anxiety disorders.
59The assessors found that youth justice would provide reasonable prospects for your rehabilitation. You understand your actions were wrong but have limited victim empathy. You have a number of other supportive factors.
60The report also found that you are particularly impressionable, immature and likely to be subject of undesirable influences in an adult prison.
Disposition
61You are sentenced to be detained in a youth justice centre for a period of two years and nine months.
62I direct that your licence be cancelled and disqualified for a period of 36 months from today's date.
63Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been four years detention in a youth justice centre.
64You may be seated.
65Is there anything else from either party?
66COUNSEL: No, Your Honour.
67HER HONOUR: Mr Hickey can be taken out. Adjourn the court please.
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