R v Hickey

[2020] NSWDC 578

District Court

New South Wales

Medium Neutral Citation:

R v Hickey [2020] NSWDC 578

Hearing dates:

10 July 2020

Date of orders:

10 July 2020

Decision date:

10 July 2020

Jurisdiction:

Criminal

Before:

ML Williams SC DCJ

Decision:

An aggregate term of imprisonment of 3 years, 9 months with a non-parole period of 2 years, 3 months: at [19].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty

SENTENCING — Guidelines for sentencing — Henry guideline

SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — General principles — Multiple offences— Objective seriousness

SENTENCING — Subjective considerations on sentence — Aboriginal offenders— Mental illness— Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Summary Offences Act 1988

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571

R v Henry (1999) 46 NSWLR 346

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Wade Hickey (Offender)

Representation:

Ms Scott (Solicitor for the Crown)

Mr Spohr (Solicitor for the offender)

File Number(s):

2019/271059; 2019/271071; 2019/271078

Judgment

1. Wade Hickey, now aged 22 years old, appears for sentence having pleaded guilty to three counts, with a number of matters that are to be dealt with on a Form 1. The plea was entered in circumstances justifying a 25% discount on the term of imprisonment and it is conceded by Mr Spohr for the offender, that a term of fulltime custody is required. It is common ground that the term of fulltime custody should commence on 29 November 2019 in the exercise of my discretion, bearing in mind the questions of totality.

2. The first count (H306001595/002) is an offence contrary to is under s 97(1) of the Crimes Act 1900, of assault with intent to rob armed with an offensive weapon which carries a maximum penalty of 20 years imprisonment with no standard non-parole period. The second count (H71622705/002) is an offence of a common assault contrary to s 61 of the Crimes Act 1900, which carries a maximum penalty of two years. The third count (H71622705/004) was an offence contrary to s 111(2) of the Crimes Act 1900, of aggravated enter dwelling with intent, armed with an offensive weapon, which carries a maximum of 14 years.

3. The Form 1 matters include offences of steal property in the dwelling house (s 148 Crimes Act 1900) (H71622705/005), common assault (s 61 Crimes Act 1900) (H71622705/006) and larceny (s 117 Crimes Act) (H604285991/001). There are two matters on a s 166 certificate of custody of a knife in public place (s11C(1) Summary Offences Act 1988) (H604285991/002 & 003) which will be dealt with pursuant to s 10A of Crimes (Sentencing Procedure) Act 1999.

4. At the time of the offences, he was on parole having been released after a sentence of two years and six months which commenced on 27 August 2017.

Facts

Assault with intent to rob armed with an offensive weapon (s 97(1))

5. On 28 August 2019 the offender went into a grocer shop in Lethbridge Park. He asked “how much is a packet of cigarettes?” He became agitated and began to swear at the shopkeeper. He tried to snatch the cigarettes, then he ran out and then he came back holding a knife with a yellow handle. He approached the shop assistant again and pointed the knife at him saying, give me the smokes. A man outside saw what happened and he spoke to him and said, “Come out here” He went outside, got on his bicycle and left the scene. The grocer called triple-0 and arranged for the Police to be called. CCTV, as it usually does, captured the events.

Aggravated enter dwelling with intent, armed with an offensive weapon (s 111(2))

Form 1: Common assault (s 61); Steal property in dwelling house (s 148)

6. The following day (29 August 2019), just before 8am, the victim was asleep in her residence at Cooper Street Strathfield. The back door was left unlocked. It was a single storey share house. She was sleeping in her bed. She awoke and saw the accused standing over her in the bedroom with a 20 centimetre chef’s knife which had been taken from the knife block in the kitchen. She said, “What are you doing here?” He held the knife above his right shoulder with a bent elbow and put his left finger to his lips to tell her to keep quiet. She was fearful. He said, “Where’s the money?” She said, “I don’t have any money I’m a student”. He took her purse from her and there was some American and Australian dollars and Euros, a Bank of Maldives bank card in it. He kept saying, “More and more money”. He was sweating. She gave him a small amount of coins in her backpack. She said, “I’m a student believe me I don’t have a lot of money. Take what you want I know that you’re a good guy”. He took her phone and the phone charger. The subject of the assault charge (Form 1) is that she tried to mollify him to assist him by opening drawers and cupboards, “She said take what you want but don’t kill me”. He said, “Oh you’re cute”. He put his arms around her and partially hugged her. She thought he was going to rape her. She was afraid if she screamed he would stab her. His actions led her to think that she again he wanted to commit some sexual act with her but she talked him out of that. Ultimately she jumped out the window and he followed her, he ran away in the direction of Strathfield Station, and she did not get her mobile phone back (Form 1).

Common Assault (s 61)

7. The principal assault count involved Mr McKenzie who was walking to Strathfield Railway Station listing to music. The offender ran past him on Cooper Street. A pair of sandals, which had been taken from the room of the previous victim, fell out of his backpack. The knife also fell out of his bag. Mr McKenzie saw the knife and began to back away from the accused. He thought the offender had trouble standing up and he seemed out of it. The offender approached him with the knife so it was pointing about a metre away from his rib cage. He sprinted away from him; he was able to run faster than the offender.

Form 1: Larceny (s 117)

8. The larceny count on the Form 1 relates to him removing $23.65 worth of groceries from Woolworths Burwood Plaza without paying for them.

Section 166 certificate: Custody on knife in a public place x2 (s 11C)

9. The related offences of custody of a knife in a public place relate to two knives located on his possession when he was apprehended by Police.

10. He was taken into custody. He was aggressive and yelling at other prisoners. He was highly agitated spitting on the floor. He attempted to commit suicide in the dock by wrapping his pants around his neck twice and he was removed from the dock and placed in a forensic suit and returned to the dock. He smeared blood on the dock walls and attempted to spit at police. Ambulance officers administered a sedative and he was taken to Royal Prince Alfred Hospital. He later declined to participate in an interview.

11. His record does not entitle him to any leniency. There are a number of matters of dishonesty and property offences in the Children’s Court commencing in 2012 and drug matters moving into the adult court by 2016. A robbery in company in 2017 which led to the sentence to which I have referred. There are some further less serious matters of stealing, possess of prohibited drug, entering closed lands, offensive behaviour and assaulting officers. I take into account the agreed facts in relation to the March 2017 matter which are in the Crown bundle.

12. I have been greatly assisted by comprehensive and largely concurrent submissions from the Crown and from Mr Spohr. As to the s 97 offence, it is true that the offence was of a relatively short duration. It involved multiple stages of escalating aggression, but it falls slightly below the objective seriousness assumed by the Henry guideline (R v Henry (1999) 46 NSWLR 346) which is postulated on the completed robbery whereas in this case the offence was only assault with intent to rob. The s 111(2) offence is around or slightly below the mid-range of objective seriousness. It is a relatively typical example of this type of offending. The victim was in a vulnerable position asleep in her bed. He was holding a knife capable of inflicting serious violence on her. The offence was unsophisticated and involved limited planning. The other offending including the assault were, as Mr Spohr puts, a product of a rushed and disordered manner of the offender’s thinking at the time. The Form 1 matters of course are taken into account in the way suggested by the Chief Justice in the guideline judgment (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146) on these matters and highlight the need for additional deterrence and retribution, while not increasing the objective seriousness of the offences.

13. It is unnecessary for me to recount the largely agreed submissions as to the aggravating and mitigating factors in the case, having noted that he was on conditional liberty at the time and he has a previous record. The plea of guilty was taken into indeed a factor to be taken into account, and he has some prospects of rehabilitation according to the evidence.

Subjective factors

14. Forensic psychiatrist Dr Sam Calvin prepared two reports. In the first, he diagnosed the offender with likely drug abuse psychosis, stimulant use disorder and cannabis use disorder. Although he did consider a differential diagnosis of schizophrenia in that initial report, he then refined his position and came to the view that schizophrenia was more likely to be the diagnosis based on the persistence of symptoms in the relatively drug free environment of custody and in spite of anti-psychotic medication. He said that the schizophrenia was precipitated by the offender’s heavy drug use. He was of course acutely unwell and in a psychotic stated precipitated by heavy methamphetamine use. His behaviour during his arrest was bizarre and likely to be due to his psychosis.

15. He certainly grew up in a socially disadvantaged environment and was displaying features of ADHD and conduct disorder in his formative years. He had little support and no parental figure to help him deal with these difficulties. He has low intellectual functioning and is unable to cope with the pressures of school. He is of Aboriginal background. He needs pharmacological and psychological assistance to remain abstinent from drugs and alcohol. The Crown acknowledges that this is a matter in which the Bugmy principle (Bugmy v The Queen (2013) 249 CLR 571) applies, and operates to reduce his moral culpability. I must also give proper weight to the offender’s deprived background and balance that, against the need to recognise the harm done to the victim of the offences, particularly offences of violence. I do take that into account along with the other purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

16. He has expressed remorse and as Mr Spohr said, it seems very unlikely that his expressions of remorse were feigned given the circumstances and his mental status which included multiple suicide attempts. The offender reiterated his expressions of remorse when he saw Dr Calvin in May this year.

17. It is clear that a finding of special circumstances should be made given the need for acute assistance in reintegrating into society, having regard to the particular barriers he faces and Dr Calvin supports the proposition that an extended period of rehabilitation is called for, in addition to ongoing treatment and his expression of willingness to try and undergo drug rehabilitation and other programs.

18. It is appropriate to impose an aggregate sentence with some level of accumulation, bearing in mind the questions of totality, noting that all the offences occurred within the same 24 hour period, though they did involve different locations, victims and criminal behaviour.

19. The orders that I will make are as follows:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. H306001595/002: 2 years, 6 months;

2. H71622705/002: 6 months;

3. H71622705/004, taking into account the Form 1 offences (H71622705/005 & 006 & H604285991/001): 3 years.

3. I impose an aggregate sentence of imprisonment of 3 years, 9 months, to commence on 29 November 2019.

4. I impose a non-parole period of 2 years, 3 months, expiring on 28 February 2022.

5. I find special circumstances.

Section 166 certificate: H604285991/002 & 003

6. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of each offence and no further penalty is imposed.

7. I recommend that Community Corrections and Corrective Services address the offender’s mental health issues while in custody and upon his release to parole.

20. HIS HONOUR: Do you understand that Mr Hickey?

21. OFFENDER: Yes.

22. HIS HONOUR: Two years and three months on the bottom expiring 28 February 2022.

Note – These extempore remarks were revised without access to the court file

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Decision last updated: 01 October 2020