Director of Public Prosecutions v Hickman

[2021] NSWDC 469

District Court

New South Wales

Medium Neutral Citation:

DPP v Hickman [2021] NSWDC 469

Hearing dates:

12 August 2021

Date of orders:

12 August 2021

Decision date:

12 August 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Appeal dismissed.

Catchwords:

Criminal Law - Directors appeal on sentence from Local Court - the need to establish error - was the sentence manifestly inadequate - jet skis on the Murray river - dangers of navigation - enough is enough - firing a shot gun into the air - sentence not manifestly inadequate

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Firearms Act 1996

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321

DK v DPP [2021] NSWCA 134

House v The King (1936) 55 CLR 499

Unal Okutgen (1982) 8 A Crim R 262

Category:

Principal judgment

Parties:

Director of Public Prosecutions

Brett Hickman (Respondent)

Representation:

Counsel:
Ms Kluss (Respondent)

Solicitors:
Ms Coleman (DPP)

File Number(s):

2020/00367113

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Albury Local Court

Jurisdiction:

Criminal

Date of Decision:

17 May 2021

Before:

Magistrate Funston

File Number(s):

2020/00367113

Judgment

Introduction

1. Mr Brett Hickman, the respondent, on 17 May was sentenced by Funston LCM at the Albury Local Court for three firearm offences and one drug offence.  Mr Hickman was sentenced to a conditional release order for 18 months without conviction.  The four conditional release orders imposed were concurrent and subject only to the standard conditions that the offender not commit any offence and appear before the Court if called upon to do so.

2. The appeal notice is by Frank Veltro SC, Acting Deputy Director of Public Prosecutions.  The ground asserted in the notice is that the sentences are inadequate.  In DK v DPP [2021] NSWCA 134, decision dated 2 July 2021, delivered after the appeal notice date, the Court of Appeal held that a Director's appeal required the establishment of error before the District Court power to vary the sentence is enlivened. The District Court jurisdiction under s 23 of the Crimes (Appeal and Review) Act is error based.  The Court further held that in an appeal against sentence brought by the Director under s 23 of the Act, the District Court has a residual discretion to dismiss the appeal notwithstanding the establishment of material error in the sentencing decision.

3. Error is the type of error referred to in the House v The King (1936) 55 CLR 499.

4. In summary, House contains four key propositions, namely:

1. An appellant must demonstrate error before the Court will intervene;

2. It is not enough that the appellant judge would have imposed a different sentence;

3. An appellant may demonstrate error by showing that the sentencing judge acted upon a wrong principle, mistook the facts, took into account irrelevant matters or failed to take into account relevant matters;

4. In other cases, it may not be clear how an error occurred, but the result is unreasonable or plainly unjust.  The appellate court may conclude that there was error: Dinsdale v The Queen (2000) 202 CLR 321.

5. The Crown in its written submissions dated 9 August 2021 appeals "This sentence on the basis it is manifestly inadequate".  The Crown must establish that the sentence imposed was unreasonable or plainly unjust, in a sentencing environment where there is no single correct sentence.

Proceedings before the Local Court

6. There were four offences before the Local Court.  The Crown appeals again the penalty imposed for three of those offences;

1. Sequence 1, firearm in or near a public place contrary to s 93G(1)(b) Crimes Act, maximum penalty two years and/or a fine of $5,500;

2. Sequence 2, not keep firearms safely contrary to s 39(1)(a) Firearms Act, maximum penalty, 12 months' imprisonment and/or fine of $2,200;

3. Sequence 3, holder of category A or B firearms licence, not have approved storage contrary to s 40(1) of the Firearms Act 1996, maximum penalty, 12 months' imprisonment and/or a fine of $2,200.

7. The learned Magistrate had before him a facts document, a sentence assessment report and materials tendered on behalf of the respondent.  The facts may briefly be summarised.  The respondent is 52 years of age.  He has no prior convictions in New South Wales.  He had one appearance in Victoria on 15 June 1990 for damage property and fail to exchange addresses as a result of a car accident.  The learned Magistrate said he was “not troubled by that”.

8. The respondent had been holidaying on a house boat during the Christmas period.  During Sunday 27 December 2020, the complainant and others had been using a jet ski.  The respondent believed that they were behaving in a dangerous manner and had been abusive in response to requests over a period of days to cease such behaviour.  At about 4pm, the respondent became concerned that his nephew's girlfriend who was learning to water ski had almost been run over by the jet ski. He requested the complainant to stop riding in a dangerous manner.  His request fell on deaf ears.

9. The respondent obtained two rounds of clay target ammunition.  That ammunition had a limited range, expiring a short distance after its discharge.  The respondent had an extensive history with the use of firearms.  He had held a firearms licence for more than 30 years.  He had the firearm on the boat for cleaning.  He loaded the firearm and fired two shots directly into the air shortly after the complainant had passed the boat on his jet ski.  The shots were witnessed by a number of people and police were called.  The respondent was arrested.  He made admissions.  He apologised for his conduct.  He explained he had acted out of frustration.

10. The sentence assessment report dated 12 May 2021 was favourable.  The report disclosed that the respondent resides with his wife of 24 years and has two adult children.  The respondent has been self‑employed for 24 years.  The COVID‑19 pandemic has had a significant impact upon his business. 

11. He described his offending as stupid and impulsive.  He did not minimise or trivialise his offences.  He was assessed as a low risk of reoffending.

12. Materials tendered on behalf of the respondent included:

1. a letter to the Court by the respondent,

2. references dealing with his community involvement, involving coaching junior football teams,

3. a psychological report from Kerry Barnard undated.

13. The respondent presented a strong subjective case.  The Prosecutor made submissions, as did Ms Kluss, who appeared below and appears today for the respondent.  They included submissions about the respondent driving his son to and from football training, the effect that has been had upon the respondent's business as a result of COVID, the death of a family friend requiring psychological intervention and if a conviction was recorded, the impact it would have on the respondent's business.

14. The learned Magistrate engaged with counsel.  After taking oral submissions, the learned Magistrate adjourned to consider the materials.  After a short adjournment, the learned Magistrate delivered ex tempore reasons.  Those reasons must be looked at in the busy court environment that exists in the Local Court at Albury.  The workload is such that the Government has appointed a second Magistrate to reside in Albury to commence in 2021.

15. The learned Magistrate took into account the following matters:

1. The prior appearance was irrelevant to sentencing;

2. The respondent had "led his really good life" and had "done a lot of good and important work...helping people";

3. The respondent had been a good family person;

4. The respondent had strong prospects of rehabilitation;

5. The s 5 threshold had not been crossed;

6. The plea of guilty was at an early opportunity;

7. The respondent had spent two nights in custody before a grant of Supreme Court bail;

8. The learned magistrate was confident that the respondent would not be back before a court again.

16. The learned Magistrate placed the respondent on all charges on a conditional release order without conviction for 18 months with the standard conditions.  The Crown appeals on the ground that the sentences are manifestly inadequate.

The Crown's Submissions

Objective Seriousness, Sequence 1

17. The Crown submits that this offence is serious and falls just below the midrange of objective seriousness.  The Crown concedes that there is no evidence before the Court as to the precise location of Mr Catanese to the house boat when the shots were fired.  However, despite this and the ammunition being that of clay target ammunition and its apparent limited range, the Crown submits that it still had the potential of striking a person if they were within the proximity and is inherently dangerous.

Sequences 2 and 3

18. The Crown submitted that the offence under ss 39(1)(a) and s 40(1) of the Firearms Act fall lower on the scale of objective seriousness in terms of their maximum penalty.  The Crown submitted that the offences were serious and fell below the midrange of objective serious.  It is the Crown's submission that the sentence imposed by the Local Court does not adequately reflect the objective criminality of the offending and the inherent need of the protection of the community which, of course, is of paramount concern.

19. Insofar as general deterrence is concerned, the Crown submitted that the lack of general deterrence is reflective in the sentence imposed in the matter and is manifestly inadequate.

20. Dealing with the subjective features, the Crown submitted that the offender is entitled to leniency for his pleas of guilty at the earliest occasion and that the offender has a limited criminal history, with convictions being recorded over 30 years ago.  The Crown conceded that the offender expressed genuine remorse for the incident and this is supported by his attendance within therapy sessions.  The sentence assessment report of the offender indicated an insight into the offending and its serious nature and has taken steps to address it.

21. The Crown's overall submission was that due to the serious nature of the matter, it warranted a conviction and additional penalties than those which were originally imposed.

The Respondent's Submissions

Objective seriousness

Sequence 1

22. It is not disputed that of the three offences the offence under s 93G(1)(b) is an objectively more serious offence as it exhibits a higher maximum penalty. Ms Kluss submits that in all the circumstances, the offence falls well below the midrange of objective seriousness and at the low end of the circumstances that can be expected be encompassed by the section.

Sequences 2 and 3

23. She submits that these offences were at the lowest end of the objective seriousness.  Whilst the respondent left a shotgun unsecured under the lounge in the house boat, the house boat was occupied by late teens and adults and was on the boat for cleaning and use on the Victorian property where the house boat was moored.  The mooring was owned by the property and only accessible by that private land, many kilometres from public access.  The only people who had access were those on the houseboat and there was minuscule to no danger to the community.

24. She submits insofar as the subjective features are concerned, that the respondent pleaded guilty at the earliest occasion.  He has a limited criminal history with convictions being recorded over 30 years ago.  She submitted that his Honour was entitled to find that they had no role in minimising any leniency to the respondent.  She submitted that the Court accepted that there was genuine remorse for the incident.

25. She further submitted that the Court accepted that there was a link between the inappropriate response of the respondent and the significant stressors that he had been experiencing, in that;

1. His business had been significantly affected by the COVID‑19 lockdown of 2020;

2. His ability to provide pre apprenticeships, employment for disadvantaged youth in Bendigo area had been curtailed by the pandemic;

3. He had been required to lay off staff that were not eligible for Government support;

4. He had placed himself under considerable pressure in his football coaching commitments and taking his son to representative football coaching;

5. He had been acutely affected by the death of his friend's son and had supported him through the turning off of his life support in the days preceding the offence.

26. She submitted that his Honour also accepted that a conviction would likely affect the ability of the respondent to conduct his business into the future in the context of contracts with Government departments, including police and Local Government and that this affect would be disproportionate to the offending.  His Honour was also cognisant of the role that the respondent's business played enabling youth to demonstrate a work ethic and progress to apprenticeships in the Bendigo community.

27. In conclusion, she submitted that the Magistrate had made no legal error and that the sentence imposed was within his sentencing discretion.

Consideration

28. The Crown must establish that the sentence was unreasonable or plainly unjust.  The respondent presented with a strong subjective case.  The respondent is entitled to rely on his previous good character and the absence of any prior convictions and that weight should be given to those antecedents.  In the case of Unal Okutgen (1982) 8 A Crim R 262 at 266 which involved a 40 year old, Starke J with whom the Court agreed, framed the principle in these terms;

"A man of his age, when first convicted, can, I think, call in aid his character and is entitled to ask the Court to rely very strongly, indeed, on the fact that he is of exemplary character and has been, at all times, up to the moment of conviction".

29. It would appear that this man was broken by unrelenting provocation over several days by jet skiers acting dangerously on the enclosed waterway of the Murray River, culminating in dangerous behaviour to his nephew's girlfriend, putting her at risk of significant physical harm.  He had tried to reason with the complainant, but was either rebuffed or ignored.  He acted in a way he should not have.  It was completely out of character.  It was an aberration.  The shots were fired in the air.  The ammunition had a limited range and no person was at risk.  His actions were to make a statement, enough is enough.

30. I reject the Crown's submission that his actions had the potential of striking a person if they were within proximity and is inherently dangerous.  That submission fails to take into account his lengthy experience with firearms, the ammunition used and the firing of the shotgun into the air.  In my view, the objective seriousness is well below the midrange of objective seriousness.

31. The learned Magistrate was entitled to find that there was genuine contrition and remorse on the part of the respondent and that he had excellent prospects of rehabilitation, forming the view that he would not be before a court again.

32. Between 24 September 2018 to June 2021, 22 cases were dealt with in the Local Court for breach of s 93G(1)(b), two were dealt with by s 10 dismissals, two received conditional release orders without conviction and four received fines.

33. If one looks at the statistics with no priors, plea of guilty, aged more than 50 years, the sentences are s 10 dismissals, conditional release orders without conviction and community correction orders.  The Crown submits, a community correction order is warranted.

34. Sentencing involves individualised justice.  The learned magistrate acted on that premise.  The sentence imposed by the learned magistrate was within the range available. I am not satisfied that the sentence imposed was unreasonable or plainly unjust.  It is not necessary for me to consider the residual discretion.

35. I dismiss the appeal.

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Decision last updated: 09 September 2021