Hickey v The King
[2024] VSCA 138
•20 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0022 |
| KANE HICKEY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL, LYONS and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 May 2024 |
| DATE OF JUDGMENT: | 20 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 138 |
| JUDGMENT APPEALED FROM: | DPP v Hickey (County Court of Victoria, Judge Harper, 19 December 2023) |
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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury – Applicant collided with motorcyclist – Applicant convicted of one charge of negligently causing serious injury – Sentenced to 2 years and 9 months’ youth detention – Whether sentence manifestly excessive – Sentence not manifestly excessive – Appeal refused.
Crimes Act 1958, s 24.
Bugmy v The Queen (2013) 249 CLR 571, R v Verdins (2007) 16 VR 269, Harrison v The Queen (2015) 49 VR 619, applied; Lennon v The Queen [2017] VSCA 85, discussed.
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| Counsel | |||
| Applicant: | Mr T Glass | ||
| Respondent: | Ms D Piekusis KC | ||
Solicitors | |||
| Applicant: | Slink & Keating | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
LYONS JA
T FORREST JA:
The applicant, who has just turned 20, pleaded guilty in the County Court to one charge of negligently causing serious injury.
Following a plea on 24 November 2023, the applicant was sentenced on 19 December 2023 as follows:[1]
[1]DPP v Hickey (County Court of Victoria, Judge Harper, 19 December 2023) (‘Reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence |
| 1 | Negligently causing serious injury[2] | 10 years’ imprisonment | 2 years and 9 months’ detention in a Youth Justice Centre |
| Total Effective Sentence: | 2 years and 9 months’ detention in a Youth Justice Centre | ||
| Section 6AAA Statement: | 4 years’ detention in a Youth Justice Centre | ||
[2]Contrary to s 24 of Crimes Act 1958.
The applicant seeks leave to appeal on a single ground:
The total effective sentence imposed namely 2 years and 9 months’ [detention in a Youth Justice Centre] is, in all the circumstances of the case, manifestly excessive.
Factual circumstances
This description of the circumstances is drawn from the Summary of Prosecution Opening which was tendered in Exhibit A on the applicant’s plea, and is not in dispute. We shall reproduce it where relevant.
On 10 August 2022, Mr Hickey, the victim and their friend, Caiden Fairy, arranged to meet up for a ride and drive in the Seaford area.
Later that evening at around 7:15pm, the victim and an unknown person, riding on motorcycles, exited a foot bridge and rode south along Francis Street in Seaford. The victim was riding a blue and white Yamaha dirt bike fitted with a headlight and taillight. The unknown rider was riding a green dirt bike not fitted with lights.
Whilst riding along Francis Road, one of the motorcycles was observed to perform a “wheelie”. The victim and unknown rider reached the intersection of Francis Street and Austin Road, Seaford and rode around the intersection to meet Mr Hickey and Mr Fairy who were in a Subaru sedan (‘the Subaru’) on Austin Road. Mr Hickey was driving the Subaru and Mr Fairy was seated in the front passenger seat.
Mr Hickey accelerated heavily and turned north onto Francis Street followed by the victim and the unknown rider, who all travelled back up Francis Street. The 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. Just prior to the last speed bump, the victim and the unknown rider overtook the white Volkswagen Polo.
Mr Hickey then drove onto the incorrect side of the road and overtook the Volkswagen Polo at speed over the speed bump. The victim and the unknown rider continued to ride north followed by Mr Hickey.
During this time, Mr Hickey was observed trying to overtake the motorcycles three times. The victim and unknown rider appeared to give Mr Hickey an opportunity to overtake by moving into the left-hand lane, and then as Mr Hickey attempted to overtake the motorcycles, the victim swerved his motorcycle in front of the Subaru. During these attempts to overtake, Mr Hickey was driving on the incorrect side of the road and occasionally swerved into the gravel shoulder close to nearby trees.
The driver of the Volkswagen Polo was concerned for her safety due to the driving behaviour and slowed down [to] create distance between herself and the Subaru and motorcycles.
Whilst on the incorrect side of the road, Mr Hickey drove very close to the rear of the victim’s motorcycle, slightly backing off and then driving closer, repeating this a few times. Mr Fairy was concerned for the victim’s safety due to the driving behaviour. Mr Fairy told Mr Hickey "we are gonna hit him”, however Mr Hickey did not respond.
The victim then moved further across in the right-hand lane and slowed his speed, and as this occurred the front passenger side of the Subaru collided with the rear of the victim’s motorcycle. The victim was ejected from the motorcycle, his body striking the front passenger side of the Subaru’s windscreen before landing on the road. The victim’s helmet also came off during the collision.
After the impact, the Subaru swerved off the road into the nature strip, skimming past a tree before skidding to a stop.
The driver of the Volkswagen Polo, and other drivers who arrived in the aftermath, stopped to assist and called 000. The unknown rider stopped momentarily before riding away from the scene. The victim was unresponsive, and assistance was provided until paramedics arrived.
Police attended the scene shortly after and spoke to Mr Hickey who identified himself as the driver of the Subaru involved in the collision. Both Mr Hickey and the victim’s vehicles were seized.
The applicant accompanied police to Frankston Hospital. A sample of his blood was taken. Subsequent toxicological analysis demonstrated that neither drugs nor alcohol were detected. The victim was transported to the Alfred Hospital after the following injuries were observed:
A head injury resulting in raised intracranial pressure caused by brain swelling and haemorrhage, which required surgery to reduce the pressure. The victim was in a coma and required [Intensive Care Unit] management. The head injury would have been fatal if it was not for medical intervention.
Chest injuries involving a right pneumothorax and haemothorax that required surgery.
Multiple fractures, which would have caused considerable pain and could not be immobilised (except for the clavicle):
i. Right clavicle and scapula (shoulder area),
ii. Seven ribs on right side, and
iii. Spinal fractures.
Traumatic mydriasis (pupil dilation), which can cause discomfort during reading, sensitivity to light and eye fatigue.
Multiple grazes and lacerations on his body, including a laceration to his torso which required suturing.
The victim was in a coma and remained in intensive care for 24 days and spent a total of six weeks in hospital. Two months after the incident, the victim was non-verbal, incontinent and unable to perform basic tasks independently. In a Victim Impact Statement (‘VIS’) provided by his mother one year on from the accident, various improvements had been seen. The victim is no longer non-verbal however has deficits with speaking, incontinence, memory and fatigue, and weakness on one side of his body.
The plea hearing
In short compass, the applicant’s counsel submitted that the applicant:
•endured a traumatic childhood including the death of his father;
•encountered a violent, often substance affected stepfather, and the poor health of his mother;
•had a disrupted education attending many schools and that he had then undiagnosed learning problems. He failed to complete year 11;
•has a solid, if relatively short, work history;
•has no issues with alcohol or drugs;
•has no prior convictions;
•pleaded guilty evidencing remorse;
•is entitled to a utilitarian benefit enhanced by Worboyes’ principles;[3]
•exhibited a willingness to facilitate the course of justice and an acceptance of responsibility;
•was 18 at the time of the offending, is a youthful offender and that rehabilitation ought be the principal sentencing consideration;
•has an IQ of 74, which places him in the low range with limited cognitive functioning;[4]
•has excellent prospects for rehabilitation;
•engages Bugmy v The Queen (‘Bugmy’)[5] and R v Verdins (‘Verdins’);[6]
•engages general and specific deterrence, and denunciation and just punishment however these ought to be moderated ‘in the context of [his] diagnosis and upbringing’; and
•is suited to sentencing options including a Community Correction Order (‘CCO’) or detention in a Youth Justice Centre.[7]
[3]Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’); [2021] VSCA 169.
[4]The applicant relied on a neuropsychological report prepared by Dr Yamin.
[5]Bugmy v The Queen (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) (‘Bugmy’); [2013] HCA 37.
[6]R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’); [2007] VSCA 102.
[7]In written submissions, the applicant’s counsel contended for a Youth Supervision Order pursuant to s 387 of the Children, Youth and Families Act 2005, however, in discussion with the judge, he accepted that this disposition was not statutorily available.
The prosecution on the plea submitted that:
•a sentence of immediate imprisonment was warranted;
•general deterrence, denunciation and just punishment are significant sentencing considerations; youth and rehabilitation while remaining relevant ought be given less weight as the importance of general deterrence and denunciation increases;
•with respect to the nature and gravity of the offending, the following was noted in the prosecution’s submissions on sentence:
The offending occurred in the context of street racing.
Mr Hickey was driving in the incorrect lane for an extended period of time and concern had been expressed by Mr Fairy as to the nature of the driving. As such, the prosecution submits that this was not a momentary lapse of attention.
Mr Hickey had held his provisional licence for approximately two months and had [h]is P plates displayed on the vehicle at the time.
There was no evidence of braking at the time of impact.
Mr Hickey remained in the area after the collision checking on his cousin and was cooperative with police.
The victim suffered a severe traumatic brain injury with concussion.
•the victim’s injuries remain ‘substantial and protracted’; and
•the minimum speed of the applicant’s vehicle at the time of impact was 52 kilometres per hour, however, it is likely that he was travelling at more than 60 kilometres per hour.
Reasons for sentence
Her Honour recited the circumstances of the offending in similar terms to those set out in these reasons at paras [4] to [6]. The judge noted that ‘this was not some momentary lapse in concentration’, and that the applicant drove ‘erratically’, on the wrong side of the road, and ‘failed to keep a safe distance between [his] vehicle and the motorcycle’.[8] The judge considered this to be ‘mid-range’ offending given the applicant’s repeated approaches to the motorcycle and his position on the roadway at the time of impact.[9]
[8]Reasons [24].
[9]Ibid.
Her Honour noted that the plea of guilty was entered at the earliest opportunity; it had significant utilitarian benefit, which was enhanced by its timing as Worboyes considerations were somewhat engaged.[10] The guilty plea demonstrated an acceptance of responsibility for the offending and took into account the applicant’s ‘apparent remorse’, whilst noting (correctly) that in both his record of interview and in psychological assessments he tended to downplay his role.[11]
[10]The judge commented that the plea was entered during the ‘tail end of the pandemic’ at Reasons [27].
[11]Reasons [28].
The judge noted the content of the VIS and set out the applicant’s apparent level of disability.[12] The judge then summarised the applicant’s personal circumstances, which in substance recited the factual matters set out by the applicant’s counsel on the plea.[13]
[12]In the same terms as set out in the VIS. See para [6] of these reasons.
[13] See para [7] of these reasons.
The judge summarised the psychological and neuropsychological evidence as follows:
Dr Cunningham found that you present with “impairments in emotional regulation and distress tolerance. This is consistent with [your] verbal comprehension impairment. [You present] with difficulty managing emotions and coping with stress.”
I further received a neuropsychological report from Dr Sami Yamin dated 27 July 2023 Exhibit 2.
Dr 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.
You 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.[14]
[14]Reasons [42]–[45].
The judge found that Verdins[15] limbs five and six were both engaged.[16] The applicant’s depression and anxiety meant that imprisonment would weigh more heavily upon him, and both were likely to be exacerbated by the prison environment.
[15]Verdins (2007) 16 VR 269; [2007] VSCA 102.
[16]Reasons [50].
Insofar as the competing aspects of rehabilitation and general deterrence were concerned, the judge said:
While 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.”[17]
[17]Ibid [51].
The judge noted the applicant’s family support, solid work history, future employment prospects and lack of prior convictions. Overall, the judge thought the applicant’s prospects of rehabilitation were good although specific deterrence, while moderated, still had some relevance so as to discourage future negligent driving.[18]
[18] Ibdi [53]–[54].
Her Honour considered that a sentence that involved a CCO was unrealistic.[19] A Youth Justice Centre report had determined that the applicant was suitable for youth justice and that the applicant was prepared to engage in mental health supports to address his depression and anxiety. The judge noted that the report found that the applicant was particularly impressionable, immature and likely to be exposed to undesirable influences in adult prison.[20]
[19]Ibid [55].
[20]Ibid [60].
This appeal
No specific error is alleged in the sole ground of appeal, nor could there be — the reasons are concise, balanced and a model of clarity. The ground of appeal alleges an unidentified error, which ought be inferred from the length of the sentence itself.
Consideration
In the applicant’s written case,[21] prepared for this application, under the heading ‘Oft-repeated principles’, the following passage can be found:
Manifest excess is a conclusion. Sentencing an offender is a discretionary exercise, not to be set aside simply because an appellate court would have imposed a different (lower) sentence. It is a stringent ground, difficult to make good. The requirement of consistency in sentencing requires consistent application of principle rather than outcome, however logically some numerical consistency might be expected. It may be asserted not that the sentencing judge made a specific error, but that the sentence imposed is so far outside the range of permissible sentences within which reasonable minds may differ that the judge must clearly not have given proper weight to all the various considerations in the case. [22]
[21]Not prepared by counsel on this application.
[22]Citations omitted.
These principles are oft-repeated because they are engaged in every application for leave to appeal that alleges manifest excess. They are important principles which strive to preserve the reasonable exercise of the judge’s sentencing discretion, whilst identifying and rectifying those sentences which stray manifestly beyond the boundaries of that discretion.
On this application, the applicant essentially referred to and adopted the submissions put on his behalf at the plea hearing. The applicant was young; of good prior character; pleaded guilty early and was entitled to an enhanced utilitarian Worboyes benefit; was remorseful; had a complicated, multi-factorial psychological make-up; had a difficult early life and had good prospects for rehabilitation. A custodial sentence would likely exacerbate his anxiety and depression. Those factors, whether exacerbated or not, would mean a custodial sentence would weigh more heavily on him.
To the extent that the applicant’s written case flirted with Verdins’ limb one,[23] we reject that submission. Specific reliance on Verdins’ limb one was not advanced orally on the plea and was raised very faintly in Dr Yamin’s report. This does not amount to the careful consideration required for the application of Verdins’ principles.
[23]Mental impairment may reduce the offender's moral culpability (but not legal responsibility) for an offence.
We consider that the sentence imposed was comfortably within the reasonable exercise of the sentencing discretion. The maximum penalty of 10 years’ imprisonment reflects the seriousness with which Parliament views this type of offending. The judge took quite a charitable view of the objective gravity of offending when she described it as ‘mid-range’.[24] As this Court observed in Harrison v The Queen,[25] objective gravity in this type of offence is to be assessed by reference to the degree of negligence on display and the seriousness of the injuries caused to a victim. Whilst there are not the aggravating factors of alcohol or drug use or ferocious speed present in this case, the departure from the standard of care expected of the reasonable driver was very great. The applicant drove erratically, seemingly street racing, and in the oncoming lane for an extended period of time. He attempted to overtake a vehicle while negotiating a speed hump. He then drove very close to the unfortunate victim’s motorcycle. He repeatedly backed off and then approached the motorcycle again. His passenger warned him of danger but he failed to respond. In short, the driving leading to the tragic collision was dreadful. The applicant was lairizing and the product of that lairizing was devastating for Christian Bartczak and his family. His injuries are obviously very serious.
[24]Reasons [24].
[25]Harrison v The Queen (2015) 49 VR 619, 629 [44] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349.
Whilst there was a good deal that could be said on the applicant’s behalf including his age, his immaturity, his limited cognitive capacities, his solid work ethic and his general previous and subsequent good character, it is clear to us that her Honour took all of this into account in formulating an appropriate sentence.
The applicant has failed to establish that the sentence imposed is manifestly excessive. We consider it to be comfortably within the range of sentences available to her Honour.
Leave to appeal against sentence must be refused.
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