Director of Public Prosecutions v Hicks
[2024] ACTSC 371
•19 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hicks |
Citation: | [2024] ACTSC 371 |
Hearing Date: | 4 November 2024 |
Decision Date: | 19 November 2024 |
Before: | Christensen AJ |
Decision: | See [37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – damaging a police vehicle – aggravated, furious, reckless driving – nature and circumstances of offences – community concern for this type of offending – totality – consideration of time in custody – prospects of rehabilitation outside of the ACT – suspended sentence and good behaviour order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 29B |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Texts Cited: | Explanatory Statement, Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 (ACT) |
Parties: | Director of Public Prosecutions ( Crown) Aroha Ngakaai Hicks ( Offender) |
Representation: | Counsel T Kelliher ( Crown) M Keaney ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) | |
File Numbers: | SCC 42, 43 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Aroha Hicks is to be sentenced for offending that occurred on 28 May 2023. Two charges were indicted:
(a)damaging a police vehicle, contrary to s 29B of the Crimes Act 1900 (ACT) (Crimes Act), carrying a maximum penalty of five years imprisonment (CAN 2023/8924, Count 2);
(b)aggravated furious, reckless or dangerous driving, contrary to s 7(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), carrying a maximum penalty of three years imprisonment, 300 penalty units, or both. An automatic minimum licence disqualification period of 12 months applies (CAN 2023/8927, Count 3).
2․Two related charges were transferred to form part of the sentencing exercise. These are offences of driver involved in a crash failing to give particulars to other driver, contrary to r 287(1) of the Road Transport (Road Rules) Regulation 2017 (ACT), carrying a maximum penalty of 20 penalty units (CAN 2023/8928, CAN 2023/8929).
3․The offending involved, in summary, driving away from police. While doing so, Ms Hicks collided with the police vehicle and two vehicles belonging to members of the public, before driving away and narrowly missing a police officer.
4․It is accepted that the seriousness of the offending is such that terms of imprisonment are inevitable where the maximum penalty provides for this. Ms Hicks has already spent 40 days in custody solely in relation to these charges, and otherwise recently spent a total of 200 days in custody. The prosecution, appropriately, do not press that any further full time custody is warranted, but emphasised the seriousness of the offending and the need for deterrent sentences that denounce the conduct.
5․The issue for determination is the period of time that is appropriate to be served, and the period of suspension during which Ms Hicks will be subject to a good behaviour order.
The offending
6․On 28 May 2023 at approximately 2:25pm, Ms Hicks was driving a motor vehicle in Reid, near to the Canberra Centre. The vehicle had a smashed rear driver’s side window which was covered with a towel. Police, who were in a marked police vehicle, began to follow Ms Hicks’ vehicle.
7․Ms Hicks drove slowly through the intersection of Ainslie Avenue and Cooyong Street. Police activated their emergency lights and siren, directing her to stop. Ms Hicks continued to drive slowly, travelling around the u-section bus stop at the Canberra Centre.
8․Ms Hicks then accelerated quickly and turned left onto Cooyong Street in a northerly direction. She initially turned into lane one, before swerving into lane two in an erratic manner. There was traffic built up, stopped at the intersection for a red light.
9․Ms Hicks’ vehicle came to be positioned behind a vehicle stopped at the intersection, and the police came to be positioned directly behind her. One of the officers got out of the police vehicle and ran to Ms Hicks’ door. As he approached, she locked the driver’s door. The police officer observed there to be a front seat passenger. Ms Hicks was directed to stop the vehicle and get out.
10․As the police officer was about to smash the driver’s side window, Ms Hicks quickly accelerated forwards a couple of metres, before quickly accelerating in reverse. While reversing, her vehicle collided with the front passenger side of the police vehicle, causing a large dent and scratches.
11․Ms Hicks continued to reverse at speed, and she collided with the driver’s side of another road user’s vehicle, causing damage to that vehicle. The photographs show this to be dents and scratches along the side of the vehicle. Ms Hicks then collided with the front driver’s side of another road user’s vehicle. Scratches and some denting was caused to the front driver’s side of this vehicle.
12․At this time, the police officer was standing in front of the police vehicle. Ms Hicks came to then accelerate quickly forwards towards the police officer, narrowly missing him by about one metre. She then continued to accelerate through the intersection, the lights having turned green and no longer blocking the intersection. Police did not further pursue her.
13․At about 3:30pm the same day, police located the vehicle in a carpark adjacent to Haig Park. The vehicle was seized, and police investigations confirm Ms Hicks to have been the driver.
14․The offending was shown on camera footage that was played at the sentence hearing.
Assessment
15․The prosecution provided a number of authorities for the purposes of current sentencing practice for the offence of aggravated furious, reckless, or dangerous driving, but acknowledged the limitations of these given they involved far more objectively serious conduct. The least serious example of the authorities provided, still being more serious than the driving that occurred here, involved periods of nine months and six months imprisonment being imposed for the offence: DPP v Holder (No 2) [2023] ACTSC 167.
16․The offence of damaging a police vehicle contrary to s 29B of the Crimes Act is concerned with a person driving a motor vehicle and causing damage to a police vehicle by that conduct. The Explanatory Statement dated 22 October 2019 for the Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 (ACT), which introduced the offence, provides:
Specific offences against driving at police officers and their vehicles recognises the special vulnerability these workers experience while executing their duties on our roads. These offences aim to reflect the serious criminality of dangerous driving activity targeting police officers and police vehicles and seek to deter others from engaging in this type of violent conduct.
17․I accept the prosecution submission that the following factors are informative as to the assessment of such an offence:
(a)whether the offender was engaged in a police pursuit;
(b)whether the offending took place in a busy locality;
(c)whether the offender was engaging in highly dangerous behaviour;
(d)whether there was an intention to impede arrest without regard to the safety or welfare of the police officers or the community at large;
(e)whether there were any passengers present in the offender’s vehicle;
(f)whether the offender ought to have known it was a police vehicle;
(g)whether the police vehicle was required to take evasive manoeuvres to avoid collision;
(h)whether there were any police officers present inside the police vehicle at the time of the collision;
(i)whether any police officer was injured as a result;
(j)the severity of the collision; and
(k)the extent of the damage caused to the police vehicle including whether the police vehicle was rendered immobile as a result of the collision.
Consideration
18․The duration of the driving was not lengthy in terms of the distance travelled, and it has characteristics of being a panicked response to the police rather than a considered decision. But it was persistent and determined conduct that involved actively attempting to avoid engagement with the police. In doing so, Ms Hicks put the police officers at significant risk and caused damage to not only the police vehicle, but also vehicles of other road users. It is not clear the number of occupants of those vehicles, or whether it included, for example, young children, but in any event, it put those road users’ safety at risk, in addition to the risk to the police. The passenger that Ms Hicks had in her own vehicle was also put at risk.
19․Further, the footage shows that as Ms Hicks drove away from the intersection, a pedestrian crossing the road at the next intersection had to take action to avoid being hit by the vehicle. It follows that not only were other vehicle users exposed to danger from this offending, but pedestrians were as well. It was a busy road in a shopping centre area.
20․There are financial implications for the community from this conduct given the damage to the police vehicle, and inevitably financial implications for the owners of the vehicles that were damaged. It is also inevitable that the police experienced alarm and distress from Ms Hicks’ actions, an experience likely shared by the owners of the vehicles she collided with.
21․Conduct of this type is of concern to the community and warrants denunciation, deterrence, and accountability in the sentence decision. I am satisfied that, having considered possible alternatives, no penalty other than imprisonment is appropriate where the maximum penalty provides for this. Where the maximum penalty is one of a fine, it is relevant to note that Ms Hicks has limited capacity to meet a financial penalty.
22․The issue becomes, as the prosecution acknowledged, the appropriate terms of imprisonment and how the imprisonment is to be served. The totality principle plainly has application. The offending is inextricably linked, including that the failure to stop for police accounts for the increased maximum penalty. Nonetheless, there is distinct conduct and victims of the offending, warranting cumulation.
23․Ms Hicks initially pleaded not guilty, and the matter was committed for trial in the Supreme Court. After the matter was listed for case conference and for trial, Ms Hicks pleaded guilty. The pleas of guilty were therefore not early, but still afford not insubstantial utilitarian value. I assess the appropriate reduction to be 15 per cent, but will also adjust the sentence for rounding purposes.
24․Ms Hicks was initially remanded in custody for this offending from 6 December 2023. On 30 May 2024 she was sentenced in the Magistrates Court for unrelated matters, with a total term of 8 months imprisonment imposed, backdated to commence on 14 September 2023. On 20 June 2024 Ms Hicks was granted bail. A total period of 40 days is attributable solely to the offences the subject of sentence.
25․The total period that Ms Hicks has spent in custody is otherwise relevant in assessing the appropriate sentence: Mill v The Queen (1988) 166 CLR 59. This is particularly so as offences the subject of that sentencing exercise included offences that post-date the offending in this sentencing exercise. In this matter, I consider it appropriate to take the period in custody into account in determining the appropriate sentences, but this will not be by way of backdating the sentence in an application of s 63 of the Crimes (Sentencing) Act 2005 (ACT). I have had regard to the period of time solely attributable to this offending, and otherwise as to the overall period spent in custody, in assessing the fulfillment of the sentencing purposes of denunciation, deterrence, and accountability.
26․At the time of the offending, Ms Hicks was on bail. This is an aggravating factor on sentence and, in addition to the offence itself demonstrating a disregard for compliance with the law, the breach of conditional liberty demonstrates a disregard for compliance with court orders. Further, since the grant of bail for this offending, there have been issues of non-compliance. This is described as inconsistent engagement, particularly in relation to attendance for supervision appointments, and there has been a recent positive result for substances from urinalysis testing. Importantly though, there has not been further offending.
27․The last offence that Ms Hicks was convicted of relates to offences of aggravated burglary and unlawful possession of stolen property committed in September 2023. This formed part of the Magistrates Court sentence of May 2024. Ms Hicks was also convicted at that time for offending that occurred between October 2022 and September 2023, involving offences of failing to stop for police, property offending, and failing to appear. While the period since the commission of her last offence has included a period in custody, it is not inconsistent with Ms Hicks demonstrating other periods of time without offending behaviour.
28․She does not have any other convictions in the Australian Capital Territory (ACT). In New South Wales, she has been convicted of driving offences, minor property offending, and offences including assaulting and resisting police in 2002, 2005, and from 2008 to 2010.
29․All of this is to say that Ms Hick’s criminal history is consistent with, and reflective of, how she has described her life trajectory. She is now 41 years of age. In more recent years, she was living in Victoria until the tragic passing of her long-term fiancé. This was very challenging for her, and she relocated to the ACT. She also experienced the loss of a grandfather, and she came to associate with negative influences. She experienced insecure housing and has experienced traumatic events. This has resulted in mental health challenges which I accept would, in accordance with limb five of Verdins (R v Verdins [2007] VSCA 102; 16 VR 269), weigh more heavily on her in a custodial environment than a person without her mental health challenges.
30․Since returning to the ACT, Ms Hicks has become dependent on methamphetamine, and was using this substance at the time of the offending. She is currently heavily reliant on external support services to assist her, and requires support for her mental health. She does not have long-term stable accommodation available to her in the ACT.
31․Her current circumstances, and offending behaviour, are to be understood in a context of Ms Hicks having experienced previous challenges with substance misuse, commencing from the age of 13 years. This followed a childhood in New Zealand that involved household dysfunction, exposure to substance misuse, and domestic violence. She left the education system at 13 years and has literacy difficulties and communication challenges as English is her second language. I accept that the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571, Douglas v The Queen (1995) 56 FCR 465, and R v Henry [1999] NSWCCA 111; 46 NSWLR 346 are enlivened such that her moral culpability is reduced.
32․As a young adult, having left the family home and become pregnant with her first child at 15 years of age, she came to immigrate to Australia and went on to have four other children. She has positive relationships with her children, as well as her parents who now reside in Queanbeyan.
33․It is apparent from both Ms Hick’s criminal history, and the information as to her subjective circumstances, that she is capable of not offending. She has engaged in previous periods of employment in the health, agricultural, and labouring sectors, and currently works in roles assisting her sister-in-law with a small business. To return to a pro-social life, Ms Hicks intends to relocate back to Victoria and live closer to her children and grandchildren. She seeks a sentencing order that will not be an impediment to this.
34․It is apparent that some of the purposes of sentencing have been fulfilled having regard to the period of time that Ms Hicks has spent in custody. To give effect to other purposes, including promotion of rehabilitation and protection of the community, it seems to me that an order that does not unduly impose restrictions on Ms Hick’s ability to relocate and return to a pro-social life is appropriate.
35․While she is assessed as a high risk of re-offending in the absence of interventions to address her criminogenic risk factors, it is futile to expect such engagement, beyond the support services she engages with, will occur in the ACT. Her prospects of rehabilitation, and accordingly community protection, will not be promoted by requiring Ms Hicks to remain in the ACT for the purposes of a sentence order. While community-based orders can be transferred across jurisdictions, such a process would likely not be able to occur expeditiously. It is apparent that as long as she remains in the ACT, imperfectly complying with supervision expectations, Ms Hicks will continue to engage with negative associates and not commit to and build a crime free life.
36․Rather, a sentencing outcome that has regard to the totality of time she has spent in custody for offending that occurred in 2023, while enabling Ms Hicks to move forward with supportive family members who provide motivation for substance abstinence, is appropriate. I am satisfied that orders that involve suspension of the sentences, with a requirement to be of good behaviour, will fulfill all sentencing purposes. Ms Hicks will have the deterrent effect of a suspended sentence, and the prospect of a return to custody, in the event that she does choose to remain in the ACT and not address her criminogenic risks.
Orders
37․For those reasons the following orders are made:
(1)On the charge of damaging a police vehicle (CAN 2023/8924), the offender is convicted and sentenced to 2 months imprisonment, reduced from 70 days on account of the plea of guilty, to commence on 19 November 2024 and end on 18 January 2025.
(2)On the charge of aggravated, furious, reckless or dangerous driving (CAN 2023/8927), the offender is convicted and sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 19 January 2025 and end on 18 May 2025.
(3)On the charge of driver involved in a crash fail to give particulars to other driver (CAN 2023/8928), the offender is convicted and no penalty is imposed.
(4)On the charge of driver involved in a crash fail to give particulars to other driver (CAN 2023/8929), the offender is convicted and no penalty is imposed.
(5)The total sentence of 6 months is fully suspended from 19 November 2024 until 18 May 2025.
(6)Aroha Ngakaai Hicks is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 9 months, from 19 November 2024 until 18 August 2025.
(7)Leave is granted for the prosecution to file in Court a Notice declining to proceed in relation to CAN 2023/8925.
38․It is noted that in relation to CAN 2023/8927, pursuant to s 63(1)(f) of the Road Transport (General) Act 1999 (ACT), the offender is automatically disqualified from holding or obtaining a drivers licence for 12 months.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 5 February 2025 |
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