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Harley Hicks v The Queen

Harley Hicks v The Queen

Case [2015] VSCA 14 11 February 2015

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0152

HARLEY HICKS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, WHELAN and BEACH JJA
WHERE HELD:	BENDIGO
DATE OF HEARING:	10 February 2015
DATE OF JUDGMENT:	11 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 14
JUDGMENT APPEALED FROM:	DPP v Hicks [2014] VSC 266 (Kaye J)

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CRIMINAL LAW – Murder – Sentence of life imprisonment with 32 year non-parole period – Application for leave to appeal against sentence – Whether absence of remorse treated as circumstance of aggravation – Whether non-parole period manifestly excessive – Murder of infant by 19 year old offender in course of burglary – Reason for killing unexplained – No remorse – Prior offending, including armed robbery in 2011 – Offence committed whilst subject to community corrections order - Anti-social personality disorder - Poor prospects of rehabilitation – Need for protection of community – Manifest excess not reasonably arguable – Absence of remorse not treated as circumstance of aggravation - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Hallowes with Ms F Todd	Robert Stary Lawyers
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:
WHELAN JA:
BEACH JA:

On 9 April 2014, a Supreme Court jury at Bendigo found Harley Hicks guilty of the murder of Zayden Veal-Whitting, and of aggravated burglary and theft.

On 13 June 2014, he was sentenced to life imprisonment for the murder. Sentences of imprisonment were imposed for the other offences. Concurrency applied. The judge fixed a non-parole period of 32 years’ imprisonment.

Now he exercises his statutory right to seek leave to appeal against sentence and, if leave to appeal is granted, seeks that his appeal be allowed and that he be re-sentenced. He relies upon these grounds –

Ground 1:The non-parole period is manifestly excessive, particularly in view of the following matters:
(a)the age of the applicant;
(b)the risks to the applicant while in custody in the light of the nature of the offence;
(c)the applicant’s likely permanent status as a protection prisoner;
(d)the chaotic, abusive and traumatic background against which the applicant’s personality was wrought;
(e)the fact that that (sic) those chaotic and abusive forces that shaped the applicant’s character were entirely visited upon him by the adult world and not of his making;
(f)the fact that the killing took place without planning but was instead spontaneous and impulsive;
(g)the absence of features of vengeance and premeditation and attend the comparable of (sic) cases where children are victims of murder.

Ground 2:The learned sentencing judge erred by aggravating the sentence upon a finding of the absence of remorse.

Although Ground 2 is drawn widely enough to encompass an appeal against the head sentence, the submissions for the applicant limited its relevance to an attack upon the non-parole period.

Circumstances

The applicant is a man born 16 December 1992, and so on 15 June 2012 he was aged 19.

On the night of 14-15 June 2012, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harley Hicks v The Queen

Details

AGLC: Harley Hicks v The Queen [2015] VSCA 14
Case: [2015] VSCA 14
Decision Date: 11 February 2015

CaseChat Overview and Summary

Harley Hicks was convicted of the murder of an infant, committed during the course of a burglary, and was sentenced to life imprisonment with a non-parole period of 32 years. Hicks sought leave to appeal against his sentence, arguing that the absence of remorse should not have been treated as a circumstance of aggravation and that the non-parole period was manifestly excessive. The appeal centred on whether the trial judge erred in considering the absence of remorse as an aggravating factor and whether the non-parole period was manifestly excessive. The court examined whether the trial judge's assessment of the circumstances and the severity of the offence warranted the length of the non-parole period, alongside the arguments presented by Hicks regarding his prospects of rehabilitation and the need for community protection.

The court reviewed the evidence and arguments presented by both parties, considering the nature of the crime, Hicks's criminal history, and his anti-social personality disorder. The court concluded that the trial judge did not err in treating the absence of remorse as an aggravating factor, as it was consistent with the sentencing principles and the severity of the offence. Furthermore, the court found that the non-parole period was not manifestly excessive, given the need to protect the community and Hicks's poor prospects for rehabilitation. The court held that the trial judge's assessment of the circumstances was reasonable, and the sentence imposed was not disproportionate.

Ultimately, the court dismissed Hicks's application for leave to appeal against his sentence. The reasoning was that the trial judge's consideration of the absence of remorse as an aggravating factor was consistent with established sentencing principles and the gravity of the offence. Additionally, the non-parole period was deemed appropriate, reflecting the need for community protection and Hicks's limited potential for rehabilitation. The court found that the arguments presented by Hicks did not establish a reasonable arguable case that the sentence was manifestly excessive.

Orders