Hicks v The Queen

[2013] VSCA 324

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0053

DANIEL RODNEY HICKS

Appellant

v

THE QUEEN

Respondent

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JUDGES	WEINBERG and WHELAN JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 November 2013
DATE OF JUDGMENT	26 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 324
JUDGMENT APPEALED FROM	DPP v Hicks (Unreported, County Court of Victoria, Judge Lacava, 18 March 2013)

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CRIMINAL LAW – Appeal against sentence –Reckless conduct endangering persons – Conduct involved swerving to avoid police – Also convicted of failing to stop vehicle on police request and other offences – Sentence of 15 months’ imprisonment manifestly excessive – Sentencing discretion reopened – Sentence of 3 months’ imprisonment substituted – Other sentences confirmed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLaughlin	Victoria Legal Aid
For the Crown	Mr C Carr	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I agree with Lasry AJA.

WHELAN JA:

1. I also agree with Lasry AJA.

LASRY AJA:

1. On 12 March 2013, the appellant pleaded guilty to one charge of reckless conduct endangering persons, one charge of intentionally cause injury, one charge of robbery and three charges relating to summary driving offences.  Following a plea at the County Court in Mildura on 12 March 2013, the appellant was sentenced on 18 March 2013 according to the following table:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Reckless conduct endangering persons [Crimes Act 1958 (Vic) s 23]	5 years’ imprisonment [Crimes Act 1958 (Vic) s 23]	15 months	9 months
2	Intentionally causing injury [Crimes Act 1958 (Vic) s 18]	10 years’ ‘imprisonment [Crimes Act 1958 (Vic) s 18]	2 years	Base
3	Robbery [Crimes Act 1958 (Vic) s 75]	15 years’ ‘imprisonment [Crimes Act 1958 (Vic) s 75]	12 months	6 months
Summary charges
5	Failing to stop vehicle on police request [Road Safety Act 1986 (Vic) s 64A]	60 penalty units or 6 months ‘imprisonment	1 month	Concurrent
7	Refusing to undergo a breath test [Road Safety Act 1986 (Vic) s49(1)(e)]	12 penalty units and licence disqualification for 2 years	$500 fine with conviction

Summary charges	Offence	Maximum	Sentence	Cumulation
12	Drive motor vehicle without a licence [Road Safety Act 1986 (Vic) s 18(1)(a)]	10 penalty units or 1 month’s imprisonment	7 days	Concurrent
Total Effective Sentence:		3 years and 3 months’ imprisonment
Non-Parole Period:		2 years 2 months
Pre-sentence Detention Declared:		155 days
6AAA Statement:		4 years and 6 months’ imprisonment with a non parole period of 3 years
Other orders: Retention of forensic sample order pursuant to s 464ZFB(1) of the Crimes Act 1958 (Vic), in relation to charge 3. Any licence cancelled for a period of 2 years from 18 March 2013, in relation to summary charge 7.

1. On 29 March 2012, the appellant filed a notice of application for leave to appeal against sentence on the ground that:

The individual sentences imposed on charges 1, 2 and 3, and the orders for cumulation in relation to those charges resulted in a sentence that is manifestly excessive in light of:

a)        the appellant’s cooperation and plea of guilty;

b)        the appellant’s remorse for the offending;

c)        the appellant’s prospects for rehabilitation.

1. On 6 August 2013 on the papers, Redlich JA granted leave to appeal only in relation to the sentence imposed on charge 1.

The Circumstances of Offending

1. In the sentencing judge’s reasons for sentence he described the circumstances of the offending by the appellant.  He had been working as a shearer in Deniliquin, New South Wales.  His de facto wife and three children also lived in Deniliquin but at a separate address.  There had been domestic disputes and there were family intervention orders in place.

1. On 12 October 2012, the appellant breached those orders and assaulted his de facto.  The appellant then left the house in his utility vehicle which was registered in South Australia.

1. On 14 October 2012, Acting Senior Sergeant Bailey of Victoria Police detected the appellant’s vehicle exceeding the 100 kmh speed limit by some 20 kmh on the Mallee Highway.  As a result Sergeant Bailey, who was driving a fully marked police vehicle, intercepted the appellant’s vehicle on the highway about 5 kilometres from Piangil.  He then approached the appellant and identified himself and advised him of what he had detected.  With the appellant’s co-operation he then administered a preliminary breath test which indicated a positive reading.  Sergeant Bailey asked the appellant to go with him to the Manangatang Police Station for a breath test.  Ultimately, the appellant refused.

1. The appellant then assaulted Sergeant Bailey without warning by punching him to the head.  A struggle followed and Sergeant Bailey attempted to subdue the appellant by use of capsicum spray.  The appellant gained the upper hand and again struck Sergeant Bailey to the head whilst the appellant was on top of him.

1. Believing his life was in danger, Sergeant Bailey attempted to remove his gun from his holster.  The appellant saw this and asked that he be given the gun. Whilst Sergeant Bailey tried to secure the gun in its holster, the appellant sprayed his eyes with the capsicum spray at which point Sergeant Bailey lost his vision.

1. The appellant again demanded, and took possession of the gun, which was not loaded.  The appellant also took Sergeant Bailey’s police radio.

1. The appellant stopped the police vehicle’s engine and left the scene in his utility, leaving Sergeant Bailey stranded and blinded by the capsicum spray.  The appellant disposed of the police radio and the keys to the police vehicle about one kilometre away.  Eventually Sergeant Bailey was able to call for assistance.

1. The appellant’s vehicle was later sighted on the Chinkapook-Nyah Road at Nyah.  The appellant saw the police in a vehicle and then drove in the opposite direction.

1. A police pursuit followed over approximately 50 kilometres.  According to the statement of one of the participating police officers, Sergeant Mannix of the Swan Hill Police, that drive included the following features:

·The vehicle was initially being driven at 100 kilometres per hour in a zone where that was the maximum speed permitted;

·On the initial contact with the police vehicle, the vehicle driven by the appellant began to swerve from side to side;

·He executed a U turn once the police were engaged;

·He then drove the vehicle at the posted limit of 100 kilometres per hour and in an orderly manner;

·When spiked sticks were deployed to try to stop him at Springfield Road, he twice swerved to avoid them and whilst doing so narrowly missed hitting two police vehicles which were also placed on the highway to stop him;

·At one stage in Chinkapook the appellant stopped at an intersection and then drove again at 100 km/h;

·The appellant drove between two police vehicles parked to narrow his path (there had been an intention to deploy stop sticks between these two vehicles but the police carrying them did not arrive in time);

·Approximately 2km out from Manangatang, Senior Constable Driscoll deployed the stop sticks but the appellant swerved around them.

·When entering the 60 kilometre per hour zone in Manangatang, the appellant slowed to that speed.

1. When the appellant arrived at Manangatang, he stopped in the main street where he was arrested and taken into custody.   

1. In addition to the statement of Sergeant Mannix, the brief contained a transcript of the police radio transmissions which in turn described the pursuit as it was occurring.  A reading of that evidence demonstrates that throughout the ‘pursuit’ the appellant was driving at the speed limit, being followed by police with lights and sirens activated.  Most of the time, the conditions were described as ‘perfect’[1] and there was little or no traffic on the road.  The procession was described by police as a ‘pursuit’ only because the appellant was not stopping.  He had committed other serious offences and the police were properly concerned to apprehend him.

   [1]Transcript, 29.

1. After his arrest, on 14 and 15 October 2012 the appellant was interviewed by police. He was cooperative with police, made full admissions and expressed remorse for what had happened. He stated that his objective on the day of the offending was to return to South Australia.

1. The appellant entered a plea of guilty six days prior to the first committal mention at the Magistrates’ Court.

Relevant sentencing considerations

1. In this Court we are only concerned with the sentence imposed on the appellant in relation to charge 1 in respect of which leave to appeal was granted.  However it is helpful to briefly examine the reasons for sentence for all of the offending.  The sentencing judge accepted counsel for the appellant’s submission that the conduct the subject of charge 1 was “not at the higher end for that kind of offending.”  Generally, in relation to all charges, his Honour noted the need for general deterrence and proper denunciation.  His Honour accepted that the appellant pleaded guilty at the earliest opportunity and that he was therefore entitled to receive the benefit of that plea.  A trial and hearings in the Magistrates’ Court had been avoided.

1. At a personal level, his Honour found that the appellant’s relationship problems helped explain the offending and put it in context.  The appellant had, after an argument, left the family home to cool off.  He worked for a couple of days and drank beer to excess.  He intended to work in South Australia and had packed his belongings, including valuable shearing tools in his car and was on his way there when these incidents happened.  There was concern on his part at leaving the car with his possessions inside on the side of the road.  The offending was, it seems, spontaneous.

1. The sentencing judge referred to the appellant’s prior convictions and noted that he was subject to a good behaviour bond at the time of offending.  His Honour accepted that the appellant was remorseful but could not say that he would not act violently again, noting the link between alcohol and the appellant’s violence.  He found that his prospects for rehabilitation were “no better than reasonable”.

1. His Honour found that the appellant had a good work history, working since the age of 16 as a shearer.  He has worked as a kitchen hand while on remand and had been attending Alcoholics Anonymous.  He has the support of his mother and brother.  He is concerned for his children and finds it difficult not seeing them.

Submissions on the appeal

1. In this appeal, it was conceded by the appellant that the total offending was serious.  After a discussion about what the actus reus of charge 1 actually was (a topic to which I will shortly return) it was also submitted on behalf of the appellant that  whatever it was, the offending on that charge was not particularly serious.  It was further submitted that taking into account the appellant’s early plea of guilty, his remorse and good prospects for rehabilitation, the sentence of 15 months on charge 1 is manifestly excessive.  The appellant’s plea, entered six days before the committal mention, had significant utilitarian value.  The learned sentencing judge accepted that he was remorseful for his offending. 

1. As to his personal circumstances, it was submitted that the sentencing judge erred in describing the appellant’s prospects for rehabilitation as “no more that reasonable”.  The appellant had never before been sentenced to a term of imprisonment and was at that point 38 years of age.  He had a strong work history, good employment prospects and the support of his mother and brother.  He had been attending Alcoholics Anonymous whilst in custody.  He was remorseful. 

1. The respondent conceded that the offending was not at the upper end of the spectrum given that he generally drove properly and obeyed the road rules.  However, the respondent noted that he twice avoided ‘stop spikes’, albeit in a relatively controlled manner and passed at high speed between two police vehicles parked on either side of the road.  The conduct also endured for 50km whilst the appellant was pursued by police; this conduct, it was said, incurs a greater moral culpability than a momentary endangerment.  The respondent referred to the maximum penalty of 5 years’ imprisonment and noted that 15 months represents only 25% of that maximum.  The respondent referred to a number of cases said to demonstrate the range of sentences open and submitted that 15 months, although at the higher end of the range available, was within that range.  With respect, I disagree with those submissions.

1. The respondent also submitted that it was open to the sentencing judge to find that the appellant’s prospects of rehabilitation were “no more than reasonable.”  The respondent referred to the link between the appellant’s alcohol use and offending and noted that despite the prevalence of drinking amongst shearers, the appellant intended to return to shearing work upon his release from prison.  The respondent also referred to his criminal history, in particular the more recent offending, in this respect.  In total, the appellant had 18 findings of guilt from 9 court appearances.  The appellant was found guilty of charges of assault in each of 2010, 2011 and 2012 as well as hindering police in 2012 and intimidating a police officer in the course of his or her duty in 2011.  In such circumstances, the respondent submitted that the judge’s remarks could not be said to have been made in error. 

Analysis - The Conduct Relevant to Charge 1

1. As I said, in this Court the argument began with an enquiry of counsel for both the appellant and respondent as to the factual basis on which the appellant was sentenced on charge one. Section 23 of the Crimes Act 1958 reads:

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence.

1. The answer to the Court’s enquiry is not clear by any means and could not be easily discerned from the judge’s reasons for sentence.  The offence of reckless endangerment requires proof that an accused voluntarily engaged in conduct which was reckless and endangered another person without lawful authority or excuse.   Importantly, the element of endangerment is an objective element and requires evidence that a reasonable person, taking the same actions as the appellant, would have realised that his conduct placed another person in danger of serious injury or may have placed another person in danger of serious injury.[2]

   [2]R v Nuri [1990] VR 641.

1. As to the offending which is the subject of charge 1, the judge made the following comments:

Your vehicle was later sighted on the Chinkapook-Nyah Road at Nyah. You saw the police in a vehicle and turned and went in the opposite direction.  A police pursuit followed 50 kilometres but at a speed of about 110 kmh.  You avoided police stop sticks placed on the road to stop your vehicle. Whilst doing so, you narrowly missed hitting two police vehicles which were also placed on the highway to stop you.  This caused the risk of injury to the police and the public.   When you got to Manangatang you stopped in the main street where you were arrested and taken into custody.

1. In my opinion, the evidence available, being the statements of Sergeant Mannix, Sergeant Griffiths, Acting Inspector Panagiotaros, Senior Constable Peck and Constable Smith, and the transcript of radio communications indicates that the most adverse basis on which the appellant could have been sentenced was not that any other person was placed in danger of serious injury but that the appellant’s conduct may have placed a person in danger of serious injury.   The pursuit may have taken place over an extended distance but as I understand it, the only reckless endangerment of another person concerned the swerving of the vehicle and the avoidance of the spiked sticks.  The fact of a change of direction in a motor vehicle being driven at or near 100 kilometres per hour, if in the vicinity of vehicles and other people, had some potential to cause injury.  The fact that the driving went on for a period of time does not mean that there was endangerment throughout that period.  In this case the contrary is true.

1. In my opinion, and despite the length of the pursuit, this offence is very low in the scale of offending contemplated by s 23 of the Crimes Act 1958.  It is true that the driving was occurring in the face of clear demands from the police for the appellant to stop.  However some care needs to be taken to ensure that the appellant is not doubly punished for conduct which really amounts to the summary offence of failing to stop a vehicle on police request under the Road Safety Act 1986. For that offence the appellant was sentenced to one month’s imprisonment.

1. In this case, a sentence of 15 months’ imprisonment on the charge of reckless conduct endangering persons is manifestly excessive.  The only time there was any prospect of danger was when the appellant was avoiding the stop sticks and there was the potential that he may lose control of his vehicle.

1. I would therefore reduce the sentence on charge 1 to 3 months’ imprisonment.  I would confirm the sentences imposed on charges 2 and 3 and the sentences imposed on the summary charges 5, 7 and 12.  I would direct that one month of the sentence on charge 1 be served cumulatively with the sentence on charge 2.  This would result in a total effective sentence of 2 years and 7 months.  It is then necessary to fix a new non-parole period.  I would direct that the appellant serve a minimum of 1 year and 9 months before being eligible to apply for release on parole.

1. Pursuant to s 6AAA of the Sentencing Act 1991, I would declare that but for the appellant’s pleas of guilty, the total effective sentence I would have imposed would have been 4 years’ imprisonment.  I would have fixed a minimum period before eligibility for parole of 2 years and 6 months.

1. Finally, I would confirm the retention of forensic sample order pursuant to s 464ZFB(1) of the Crimes Act 1958 in relation to charge 3.  I would also confirm the cancellation period for the appellant’s driver’s licence at 2 years from 18 March 2013, in relation to the charge of refusing to undergo a breath test (summary charge 7).

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