R v Hickman
[2013] NSWDC 143
•17 May 2013
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Hickman [2013] NSWDC 143 Hearing dates: 17 May 2013 Decision date: 17 May 2013 Before: Neilson DCJ Decision: Sentenced to a total of 5 years and 9 months imprisonment, with a non-parole period of three years and six months
Catchwords: CRIMINAL LAW - Sentence - Siege - Police negotiating with offender - Offender aimed firearm at police - Offender fired shot into the air - Offender fired second shot over top of police armed vehicle - Muffled gunshot heard from inside offender's house - Offender again aimed firearm at police - Police discharged two rounds at offender - Offender received injuries to hands - Offender arrested and conveyed to hospital - Little and ring fingers of each hand amputated - Use offensive weapon with intent to intimidate - Multiple firearms offences - Breach of four s 9 bonds - Offender had long history of drug and alcohol abuse - Mentally handicapped - Diagnosis of psychotic disorder - Commission of offences the result of substance induced psychosis Legislation Cited: Firearms Act 1996 s 7A(1)
Crimes Act 1900 s 33B(1)(a)Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (201) 79 NSWLR 1
R v Cicekdag (2004) 150 A Crim R 299
R v Mostyn (2004) 145 A Crim R 304Category: Sentence Parties: Regina (Crown)
Kelvin John Hickman (Offender)Representation: Ms L Burgoyne (Crown)
Ms M Chu (Offender)
File Number(s): 2012/257141
Judgment
Kelvin John Hickman stands for sentence as a consequence of pleading guilty to four very serious offences which he committed on 16 August 2012. He asks me to take into account, in passing sentence, two matters on a Form 1 in respect of one of the four serious offences, what I will refer to shortly as the sequence 2 offence, using an offensive weapon with intent to intimidate. In addition, the offender asks me to deal with him for a breach of four s 9 bonds imposed upon him by the Local Court at Sutherland on 20 October 2011. I shall do so. Although the offences of 16 August 2012 are very serious, it is also important to bear in mind the circumstances of the earlier offences because they shed some light on the offender's conduct on 16 August 2012.
The first of the four earlier offences occurred on 20 October 2010 in Torres Street, Kurnell. The offender was then living, and lived at all material times, at 128 Torres Street, Kurnell. The offence in question was common assault upon Mr John Eastern. Mr Eastern was a builder who was doing work at the house of a neighbour of the offender, Ms Lisa Mansfield. At about 9.10am on 20 October 2010, the offender was out the front of his house but was very upset. He was shouting out loudly about one of his neighbours, who had parked his vehicle in front of the offender's residence making it difficult for the Sutherland Shire Council garbage truck to pick up rubbish from the offender's residence. According to the offender, there was an ongoing issue between that neighbour and him about that neighbour's continually parking his vehicle in front of the offender's residence. Essentially, Ms Mansfield asked the offender to calm down. The offender had threatened, by his actions, to smash a garbage bin into the vehicle that was parked by that third neighbour. There was much shouting including the shouting of obscenities. Mr Eastern thought that there was some threat to Ms Mansfield. Mr Eastern asked for the offender to stop yelling at Ms Mansfield. The offender explained to Mr Eastern that he was not upset with Ms Mansfield but with the other neighbour. The offender told Mr Eastern, "I am going to get my gun and shoot them", the pronoun "them" referring to the neighbour or neighbours who had parked the car in front of his house. There was then further shouting and screaming using obscenities.
The offender left but came back holding a metal pole that was about one metre in length. The offender was yelling at Mr Eastern whilst holding the metal pole. They were only three metres apart. The offender invited the victim, Mr Eastern, to "Come over here and I will sort you out." Mr Eastern then laughed, which caused the offender to again swear and shout. The offender then threatened to go inside to get his shotgun and threatened to shoot Mr Eastern. The offender then went back into his residence and Mr Eastern returned to Ms Mansfield's property.
Ms Mansfield was aware that there were firearms at the offender's residence and became fearful that the offender might carry out the threat that he had made to Mr Eastern. She told the victim about that and reported the matter to the police.
At about 1.40pm police attended at the offender's address and arrested and eventually charged the offender. There was no actual striking of the victim or any actual harm caused to the victim; it was a common assault without any battery. The offender was sentenced to enter into a bond pursuant to s 9 for twelve months, which was imposed by the Local Court at Bankstown on 15 November 2010. However, the offender breached that bond and for that he was dealt with at the Local Court at Sutherland on 20 October 2011.
On 26 July 2011, the offender was driving westward in the middle lane of the westbound lanes of the Kingsway, Woolooware, approaching its intersection with Gannons Road. That intersection is controlled by traffic lights. In front of the offender, a gold Nissan Pulsar vehicle was being driven by Ms Beverly Tully. She slowed down, as did other traffic in the lane, as it approached the intersection of Gannons Road. However, the offender failed to brake safely and collided with the rear of Ms Tully's vehicle, causing damage. Both Ms Tully and the offender pulled to the left of the carriageway and got out of their vehicles. There was then a short exchange between Ms Tully and the offender, in which the offender refused to acknowledge that he was responsible for the accident and refused to wait for the arrival of the police. He also failed to give his details to Ms Tully.
The police were called and eventually saw the offender in his vehicle turning into the car park of the Sutherland Hospital, which is on the corner of the Kingsway and Kareena Road, Caringbah. The police breath tested the offender and he eventually returned a mid-range prescribed concentration of alcohol in his breath. The reading was 0.113 grams of alcohol in 210 millilitres of breath. The offender was then charged with a mid-range PCA offence.
Later in the day he returned to his home at Kurnell where he resided with his elderly father, Mr Sydney Hickman. On that afternoon the offender committed a common assault upon his father and also intimidated him. The interaction between the offender and his father started essentially with the offender's accusing his father of "dobbing him in" to the police. The interaction earlier in the day with the police was because of a minor motor vehicle accident reported to the police by Ms Tully. The offender's father had nothing to do with the offender's interaction with the police earlier on that day. In other words, one can see in the commencement of the interaction between the offender and his father on 26 July 2011 some paranoid ideation.
After accusing his father of dobbing him into the police, the offender told his father that he was going to demonstrate what he would do to the policeman who had arrested him. He had in his hand a thirty-centimetre kitchen knife. He lunged towards his father, perhaps only to imitate what he intended to do to the policeman who had arrested him. However, his father was unsure of the offender's intention and did not know whether he was trying to stab him or scare him, but the offender's father did not turn his mind to the question of whether he was merely demonstrating what he might do to the policeman.
A short time later, however, the offender threatened his father by holding a spear gun about fifteen centimetres away from his father's head. He said to his father, "That's what I'll use if anyone comes here." Again, that indicates paranoid ideation. The victim, that is the offender's father, feared for his safety as he did not know whether the spear gun was loaded or not. The offender later told police the spear gun was not loaded as the rubber which propels the spear out of the gun was not on the gun itself.
A short time later the offender walked around his house but with a metal bar about fifty centimetres long and about twenty millimetres thick in his hand. The offender told his father, "I can give you one hit with this and it could kill you." That clearly greatly alarmed the offender's father, who went immediately outside and called for neighbours to call the police.
Again, outside the house later that day, there was an allegation made by the offender that his father had dobbed him in to the police. That led to the offender's being charged with a common assault upon his father, although there was no actual battery, and a charge of stalking or intimidating intending to cause of physical or mental harm.
Those three offences as well as the breach of the earlier s 9 bond were dealt with by the Local Court at Sutherland on 20 October 2011. In respect of the breach of the s 9 bond imposed by the Local Court at Bankstown on 15 December 2011, the Local Court at Sutherland imposed a further s 9 bond, again for twelve months, with the same supervision as had previously been imposed by the Local Court at Bankstown. In respect of the three fresh offences, the Local Court at Sutherland imposed in respect of each offence a s 9 bond for two years with supervision.
Clearly, when the offender committed the major offences on 16 August 2012 he was bound by each of those s 9 bonds, that is, all four bonds imposed by the Local Court at Sutherland on 20 October 2011 to be of good behaviour.
During the course of submissions I outlined to both the solicitor for the prosecution and the solicitor for the defence that I proposed to impose short custodial periods in respect of the breaches of those bonds, and there was no submission put to me by either solicitor to suggest that I should do otherwise.
In respect of the offence of 20 October 2010, I intend to impose a fixed period of imprisonment of two months and in respect of each of the offences committed on 26 July 2011, I intend to impose a period of imprisonment of two months, each of the sentences in respect of the offences on 26 July 2011 to be served concurrently, in the way that the Local Court at Sutherland had dealt with them.
I now turn to the principal offences and the Form 1 offences which the offender asks me to take into account.
The offender is currently fifty-four years old. At the time of the offences he was fifty-three years old and was, as I have earlier stated, living with his father, Sydney Hickman, at 128 Torres Street, Kurnell. The offender's father was then eighty-seven years old. As a result of the interaction between the offender and his father on 26 July 2011 there was in force in favour of the offender's father an apprehended violence order.
At about 5am on Thursday 16 August, Mr Sydney Hickman rose from his bed. The offender was already awake and in the living room watching television. There was then an argument between the offender and his father. The offender threatened his father saying something about his having an accident at home, like a gun going off, and the offender told his father that he would make it look like an accident. The offender and his father had for many years been keen sports shooters. Mr Sydney Hickman was a holder of a permit to possess firearms but the offender was not so licensed. There were firearms in the premises at 128 Torres Street, Kurnell. The threat made by the offender to his father caused the offender's father to leave the house and he went to the home of his general practitioner and friend, Dr Peter Calverley, who resided in Captain Cook Drive, Kurnell. Dr Calverley had also previously treated the offender. Dr Calverley phoned the police and reported what had happened.
At about 5.40am the offender phoned his sister, Ms Debra Newans. She was living with her family at Menai. The offender told his sister that his father and the dog had gone missing. He said to his sister, "He is putting the bolts in different places" and "people must be breaking in and moving everything ... the bolts, I find them in mum's drawers." The offender's mother, the wife of his father, had died around 2000. Again, the suggestion by the offender to his sister that people were breaking into the house indicates some form of paranoid ideation.
Shortly before 6am the first police arrived at Kurnell and spoke to Mr Sydney Hickman. They then made their way to the Hickman residence in Torres Street. The offender walked out of the premises and approached a vehicle that was parked in the front yard. That vehicle would appear to belong either the offender or his father. Police challenged the offender, but he want inside his premises. More police cars then arrived containing more police personnel. The offender was then seen to approach a window of the house at its front on the eastern side and remove a piece of Masonite covering the window. The offender was clearly inside the house at that time. Police observed that the offender was armed with a firearm and negotiations then commenced, led by Sergeant Jason Clarke. On several occasions Sergeant Clarke asked the offender to show him his hands to confirm that he was no longer armed. The offender complied with that request, but then again took possession of a firearm. Whilst the sergeant and the offender were talking, the offender was rambling in his speech and yelling things such as he wanted to see his father and his dog. The offender then threatened to shoot both himself and the police.
At about 7.30am the offender again spoke with his sister on the telephone. The offender told his sister that the police were at the house, and his sister advised him to go outside of the house carrying nothing in his hands. The offender then said these words to his sister:
"They are going to shoot me. I was at my car and they turned up and I told them to shoot me in the back. I've got the gun and I'm using and I'm going to blow my head off. I will get them before they get me. "
The offender's sister then contacted the police, who told her not to telephone the offender's house again. One must see in what the offender told his sister some paranoid ideation. He believed that the police were going to shoot him. There is no suggestion that any threat was made by the police to the offender.
Two constables, Constables Kelly and Gallina, took up a position next to a large tree outside number 130 Torres Street, the house next door on its western side. Sergeant Clarke continued to try to negotiate with the offender, who became more agitated and threatened to shoot anyone who came in his house. The offender then left the house and appeared in the front yard carrying a firearm with a muzzle pointed towards the sky. The offender then positioned the firearm with the butt against his shoulder and aimed the firearm directly at Constable Gallina. Sergeant Clarke ordered his officers to take cover and both Constable Gallina and Constable Kelly ran to a car parked on the street. The offender then returned to the interior of the house.
The aiming of the firearm at Constable Gallina is the sequence 7 offence, the offence of using an offensive weapon with intent to intimidate contrary to the provisions of s 33B(1)(a) of the Crimes Act 1900. That offence carries a maximum penalty of twelve years imprisonment.
There was a subsequent similar offence. In R v Mostyn (2004) 145 A Crim R 304, Howie J said at [187] the following about offences under s 33B:
"It was clearly a serious example of the offence notwithstanding that the firearm had not been discharged. The officer was obviously not aware of that fact and the rifle was pointed at him for a significant period. The officer was placed in the highly stressful position of being confronted with the possibility of having to shoot the appellant in order to defend himself from what he perceived as a real and present danger to himself. It must be every police officer's nightmare that he or she will attend a domestic disturbance and find one of the occupants brandishing a firearm in his or her direction. Persons who put police officers in that position must expect the courts to react with severe sentences."
Here, the firearm could be discharged and was subsequently discharged. When discharged it did not strike anybody. However, one can appreciate the alarm and fear that having a firearm pointed at him must have agitated in Constable Gallina's mind.
After that offence the Tactical Operations Unit and official police negotiators arrived at the scene.
At about 8.10am the offender discharged the long barrelled shotgun from the front left window of the premises. The shot was fired in the air to the left of where the Tactical Operations Unit armoured vehicle had been parked. After discharging the firearm the offender retired further inside the house and shouted out, "Sorry, that was an accident." Police said to the offender, "That is okay. Just put the gun down and come out with your hands up." However, the offender did not comply with that request. A few minutes later he brandished the shotgun from the same window. Again the police yelled instructions to the offender to drop the gun. He then fired a second shot over the top of the police armoured vehicle. After he did that he again retreated further within the house.
During this siege neighbours on each side of the offender's house and his neighbours across the road were at home and witnessed the events. The second shot was captured on a DVD recording made by Mr Jason Orchard, who resides opposite the offender's house. Clearly that neighbour and members of his family were alarmed by what was occurring in their residential street.
Some time after that a muffled gunshot was heard from inside the offender's house. After that he was not seen or heard for some time. That led police to believe that the offender may have indeed shot himself.
Leading Senior Constable Mark Davidson from the Tactical Operations Unit moved out from behind the police armoured vehicle and crouched in a position near the fence which divides the offender's residence from the residence to its east. Leading Senior Constable Davidson attempted to use the magnified riflescope to look inside the premises to assess the offender's condition. The offender then appeared at the window. Another officer, positioned near the armoured vehicle, heard the offender say, "You're fucking joking, aren't you? I've shot kangaroos further away than you are". The words heard by Leading Senior Constable Davidson were an insult in offensive language and a threat to go to get a bigger gun. He then retired further inside the residence before again appearing at the window with a shotgun. The offender pointed the shotgun out the window and aimed the barrel at Leading Senior Constable Davidson. That is a second offence contrary to s 33B(1)(b) of the Crimes Act 1900.
The only thing which might distinguish this offence from the earlier offence contrary to the same provision is that Leading Senior Constable Davidson had his rifle with him and was wearing armour protection, and was a member of a specialised squad dealing with persons in the position of the present offender, whereas Constable Gallina was only a general duties police officer. In other words, this offence differs from the earlier offence contrary to the same provision in that Leading Senior Constable Davidson was a little more protected and probably more used to the position in which he found himself.
This caused Leading Senior Constable Davidson to fire one round at the offender. Constable Foster, who was seated in the turret of the armoured vehicle, discharged two rounds at the offender. The offender immediately fell back inside the window. Several minutes later, police heard the offender talking, but also groaning, inside the house. Police continued to attempt to communicate with the offender. Those attempts persisted for an hour.
At 9.30am the offender was heard to be slurring his speech and moving very slowly. Ambulance officers who had been called to the scene expressed concern for the offender's health and police discussed strategies to enable them to monitor the offender's health. At about 10.20am the offender appeared at the window again and showed police his wounded bloodied hands. Members of the Tactical Operations Unit entered the house at approximately 10.24am and the offender was arrested. He was then conveyed to St George Hospital but was subsequently transferred to Sydney Hospital for urgent surgery to his hands. It would appear from other evidence that I have read that the offender was subsequently transferred to St Vincent's Hospital before being transferred to the Corrective Services Hospital at Long Bay Gaol. Whilst in any of those hospitals the offender was under police guard.
As a result of a wound to each hand, the offender needed to have the little and ring fingers of each hand amputated. The inference I drew from reading the facts in the medical evidence is that Constable Foster, who was seated in the turret of the armoured vehicle and had discharged two rounds, probably caused the damage to the offender's hands. The round discharged by Leading Senior Constable Davidson appears to have entered and left the offender's right upper arm. Surgery practised on the offender's right upper arm disclosed an entry and an exit wound containing a small piece of shrapnel which was extricated from the wound, which was debrided, washed and closed and appears to have left no sequela.
The interaction of the offender and his father commencing at 5am on the morning of that day was an offence of contravening the apprehended violence order, which is one of the offences the offender asks me to take into account when sentencing him for the sequence 2 offence, the offence involving Leading Senior Constable Davidson.
After arresting the offender the police obtained a crime scene warrant for the offender's premises. They recovered a shotgun from inside the front left lounge room window, which had been used by the offender during these offences. It was a twelve gauge, AYA manufactured, single shot, break open shotgun. Examination of the shotgun revealed that it was not loaded, but contained one fired cartridge case in its chamber. The offender did not hold a firearms licence and the shotgun was not registered. The possession of that firearm is an offence contrary to s 7A(1) of the Firearms Act 1996 and carries a maximum penalty of five years imprisonment. That is one of the substantial offences the offender asks me to take into account.
Also at the time of the execution of the crime scene warrant, police found a gun belt containing shotgun ammunition which had been worn by the offender around his waist and a large number of shotgun rounds which had been contained in the left-hand tracksuit pocket of the clothing worn by the offender. The possession of that ammunition without a license or permit is an offence against the Firearms Act 1996, which the offender asks me to take into account on the Form 1. The maximum penalty for that offence is merely a fine of up to fifty penalty units. The two discharges of the firearm were offences contrary to s 93G(1)(b) of the Crimes Act, which carries a maximum penalty of ten years imprisonment.
In R v Cicekdag (2004) 150 A Crim R 299, Hoeben J (as his Honour then was) said at 35:
"... The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and, as happened here, a number of shots are fired".
Whilst it is clear that the offender did not discharge the two rounds at any particular person or thing, his action was reckless. One does not know where the shots may have ended up. In the same case, his Honour pointed out that, where more than one shot has been filed, principles of deterrence are of considerable importance.
It has been submitted, very properly in my view, that this was an offence in disregard of public safety, an aggravating factor referred to in s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999. The discharge, in the circumstances where the crime admitted was not a crime in disregard of public safety, is a matter that the Court is required to take into account. The two offences contrary to s 33B were against police officers exercising public functions, and the offence arose because of each of the victim's occupation. That is an aggravating factor under s 21A(2)(a). In respect of each of the four principal offences, and indeed the two offences which the offender asks me to take into account on the Form 1, he was at conditional liberty at the time and such is always an aggravating factor, both pursuant to the Statute and at common law.
Looking at the offences committed, that is, the four principal offences, but leaving aside entirely the subjective matters of the offender and in particular leaving aside his psychological and intellectual disabilities, the facts of each of the offences could be seen as in the mid-range. The Crown submitted that the objective seriousness of each offence was high, but based mainly on the subjective features. The defence submitted that they were beneath the mid-range of seriousness. Ultimately, I must look at not only the facts but the offender's personal circumstances and the background to these offences to determine their seriousness in considering the whole gamut of criminality.
The offender himself has little recollection of these offences. The medical evidence before me to some extent explains why. I have been provided with two fairly comprehensive medical assessments of the offender. The first is from Dr Olav Nielssen, a psychiatrist who examined the offender on 25 October 2012 and wrote a report bearing date 12 April 2013. The second is an assessment from a consultant forensic psychologist, Mr Peter Ashkar, who interviewed the offender for three hours from 27 April 2013 and reported on 10 May 2013. There is no inconsistency of any note in either of the histories recorded or the opinions expressed by those two practitioners.
The offender was identified as having learning problems when he started school, and needed to repeat "year 1". I take that piece of history from Dr Nielssen's report. It is not clear to me whether he was referring to first class as Year One used to be called, or to Form 1 as Year Seven used to be called. As I read the report in total, however, he appears to be referring to what is currently called Year One, the old first class.
The offender was never able to learn or to spell properly. When he went to Woolooware High School he was placed in a special class. He left high school at the end of "second year", meaning what we now call Year Eight. He did that to work with his father as a painter. The offender had taken so many days off school that the school authorities had approached his father to find out why he was not attending school, and the offender's father told them that he was not learning anything and was better off working. The offender worked with his father as a painter until he was either eighteen or nineteen and then worked as a builders' labourer "on and off" during his twenties. In his thirties the offender was granted a disability support pension because of the effects of substance abuse and hepatitis.
Dr Nielssen estimated the offender's premorbid intelligence to be in the lower half of the normal range, based on his history of a learning disorder at school and the offender's report of his functioning in society and at work.
Dr Ashkar made this assessment:
"Mr Hickman's overall level of intellectual functioning was estimated to fall at or below 'low average' levels on the basis of his educational and vocational history, and his current performance on test of intellectual functioning were consistent with this estimate. His overall level of intellectual functioning was 'borderline impaired' at the 3rd percentile (i.e. the bottom 3% of the population)".
Accordingly, it can be seen that the offender is hardly intellectually well endowed and poorly educated and his achievement at work has not been great.
To compound the learning problems, the offender took up illicit drugs at a very early age. He began smoking cannabis at the age of twelve and has smoked that drug most days since his mid-adolescence. In fact, he appears to have last taken cannabis on the morning of 16 August 2012. In addition, as a teenager the offender inhaled lighter fluid and glue, took LSD and magic mushrooms and abused mandrax. He began inhaling heroin at the age of sixteen and within three months of using that drug was injecting daily. At the age of eighteen the offender stopped using heroin after enrolling in a short term methadone program but soon relapsed and used heroin on and off until the age of thirty three. Since then he has been using methadone. He has also been abusing benzodiazepine medication since his twenties to help overcome heroin withdrawal.
The one inconsistency I have between the reports taken by Dr Nielssen and Dr Ashkar concerns alcohol. According to Dr Nielssen's history, the offender's alcohol intake had increased over the eight years preceding his offending, although Dr Ashkar has it as falling. According to Dr Ashkar's substance use history, the offender starting taking prescribed benzodiazepine to manage anxiety in his mid-forties and has been using it on most days since that time as well as using illegally obtained benzodiazepine on occasions. Dr Nielssen diagnosed, in addition to substance dependence, an abuse disorder and a learning disorder, a psychotic illness. Dr Ashkar agrees with the diagnosis of a psychotic disorder. Both gentlemen appear to accept that the offender's behaviour on 16 August 2012 was because of a substance induced psychosis.
Clearly, the psychosis involved paranoid ideation. The offender only admitted to paranoid ideation after he was admitted to hospital and treated for gunshot wounds but there is evidence, which I have tried to point out from the offender's earlier behaviour, of psychosis and supporting evidence from the offender's sister of long-standing paranoid behaviour.
I accept that the offender's major reason for the commission of the offences on 16 August 2012 was because of a substance-induced psychosis. The offender told Dr Nielssen that when the police turned up in the front of his house his response to that situation was to take twenty tablets of Xanax and drink a quarter a bottle of Ouzo. The offender also admits to having smoked cannabis before police arrived. It appears, if that history be correct, that the taking of the Xanax and Ouzo could not explain the interaction of the offender and his father commencing at about 5am. The offender has little recollection of that interaction. It appears to me, therefore, it likely that the psychosis arose because of the substance abuse rather than from any ingestion of the Xanax and Ouzo after the police had arrived at the offender's premises. However, that would hardly assist the offender coping with his psychotic illness. Equally, his psychotic illness may have rendered the offender unable to realise the effect of taking the Xanax and the Ouzo.
Of course, deliberate self-inducing, for example, intoxication, is hardly any excuse for criminal behaviour. However, here the psychosis resulted from the continual long-term drug abuse stemming back to the offender's adolescence, when he was twelve years old, either in Year Six or Year Seven. He was a twelve year old boy with very little intellectual ability and with certain disorders, who took, probably as a dare from his schoolmates, to try to smoke this weed and that has eventually led to addiction.
The offender's moral culpability for his addiction cannot be great bearing in mind his early taking up of the use of cannabis when he could hardly understand or foresee the long-term consequences of the addiction, which he precipitated by taking up the drug. The cannabis use led to heroin abuse and that made the substance abuse even worse.
The principles relating to those that are suffering from a mental illness or intellectual handicap or other mental problems are well known. Here, the offender has a mental illness, psychosis, and an intellectual handicap. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (201) 79 NSWLR 1, McClellan CJ at CL said at [177]:
"Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing ... They can be summarised in the following manner:
Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence...
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed...
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or conditions under which it is served may be reduced...
It may reduce or eliminate the significance of specific deterrence...
Conversely, it may be that because of a person's medical illness, they present more of a danger to the community. In those circumstances consideration of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public...
[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence..."
I accept that because of the offender's mental handicap and psychiatric illness, this is hardly a case for promoting general deterrence. I also accept that the offender's moral culpability for his crimes has been reduced. In the current case, I can readily accept that the element of specific deterrence also is removed because the condition which has caused the problem has now been identified and is being treated, and furthermore the offender is hardly ever likely to use again a firearm given the physical injuries which he sustained as a result of being shot. The offender clearly has suffered from extra-curial punishment. The wounds led to the loss of two fingers on each hand and that represents a physical handicap that the offender must bear for the rest of his days.
In her submissions, the solicitor for the offender referred me to the mitigating factor provided by s 21A(3)(j), however that is merely the mitigating factor I have now discussed at some length based on ordinary Common Law principles. Both the offender's reduced moral culpability for his crimes, the fading away of the need for general and specific deterrence, and the extra-curial punishment mitigate the sentences which otherwise ought be passed upon the offender for the objective seriousness of the offences which he has committed. Having said that, the Court must have regard to all the principles of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which includes the need to protect the community from the offender, the rehabilitation of the offender and the need to make the offender accountable for his or her actions and to denounce the conduct of the offender.
On the question of contrition and remorse, Dr Ashkar accorded the following:
"Mr Hickman could not account for his behaviour. He struggled to appreciate the perspective of the police and to express feelings of regret and remorse: 'I feel nothing [there is] nothing to feel. I'm a bit silly for doing it. I got shot out of it. I was lucky they didn't kill me. I should have just been gave up, put the gun down. [Q: Why didn't you?] No idea. Don't know. [Q: How do you feel about it now?] Pretty stupid. Then I wouldn't have got my hands shot off.'"
If the offender manages to wean himself of substance abuse, stay away from cannabis, benzodiazepines - whether they are prescribed or not - and any other drug of addiction, and if he cooperates with the medical profession in controlling his psychotic illness, the prospects of re-offending are very low. If, however, the offender does not there could well be re-offending behaviour. This, in my view, raises a case of special circumstances to break the statutory nexus between the head sentence and the non-parole period. When released to the community the offender will need as much assistance as he can to stay on the straight and narrow after having learned to control his addiction to illicit drugs whilst in custody and having learned to control his medical condition by cooperating with medical practitioners. As much assistance for as long as possible whilst he is in the community would be the best thing for both the offender and the community.
I should have stated at the commencement of these reasons but failed to do so that it is accepted that the offender pleaded guilty at the earliest available opportunity and I accept the offender is entitled to a full discount of twenty five percent of the proper sentences to be passed on him for the utilitarian value of his pleas. However, I should point the case against the offender was very strong.
Statistics available from the Judicial Commission indicate that there have been forty-seven cases dealt with under s 33B(1)(a). The median head sentence is three years imprisonment and the median non-parole period is eighteen months imprisonment. At the top of the range the head sentence is four and a half years and the non-parole period is three years. For offences contrary to s 93G(1)(b) there have only been sixteen cases. Seventy-five percent of those have been dealt with by full-time custody. The median head sentence is thirty months imprisonment and median non-parole period is eighteen months. At the top of the range the head sentence is five years and the non-parole period is three and a half years. Only three persons have been dealt with for an offence against s 7A(1) of the Firearms Act 1996 by way of full-time non-consecutive custodial sentence. One offender was sentenced to a fixed term of six months imprisonment, two other offenders were sentenced to eighteen months imprisonment, one with a twelve-month non-parole period but the second also had an eighteen-month non-parole period meaning that it was a fixed term.
For the offence against the Firearms Act I shall impose a fixed term of imprisonment of one year.
For the first offence contrary to s 33B (sequence 7 offence) I shall impose a head sentence of three years with a non-parole period of two years.
For the offence contrary to s 93G(1)(d) I intend to fix a head sentence of two years with a non-parole period of fifteen months.
For the second offence contrary to s 33B I shall sentence the offender to three years imprisonment with a non-parole period of nine months.
With partial accumulation, which must occur in this case, the non-parole period will be three years and three months; the additional term will be two years and three months and the total sentence will be five years and six months. Those sentences are after the twenty-five percent discount.
Bearing in mind what I earlier said about the offences bringing the offender before the Court to call up for the breach of s 9 bonds, the offender all told will serve a period of three years and six months in custody and be on parole for a total period of two years and three months.
No-one wants any further reasons, do they? At 4.50pm I have inquired with the solicitors for the parties whether any further reasons for sentence are required and I am told that none are required.
For the offence of common assault committed at Kurnell against John Eastern on 20 October 2010, I revoke the s 9 bond imposed by the Local Court at Sutherland on 20 October 2011. I sentence you to imprisonment for one month, commencing on 16 August 2012 and expiring on 15 September 2012.
For each of the offences committed on 26 July 2011, that is the driving with a mid-range prescribed concentration of alcohol at Caringbah on 26 July 2011, for intimidating Sydney Hickman with the intention of causing him to fear physical or mental harm at Kurnell on the same day, and for common assault of Sydney Hickman on the same day, I revoke each of the s 9 bonds imposed by the Local Court at Sutherland on 20 October 2011 in respect of those offences. I sentence you to imprisonment for two months. Each sentence is to be served concurrently. The period of imprisonment is from 16 September 2012 to 15 November 2012.
On the charge that on 16 August 2012 at Kurnell you did possess a firearm, namely a single barrel shotgun, not being authorised to do so by licence or permit, you are convicted. I sentence you to imprisonment for a fixed term of one year, commencing on 16 November 2012 and expiring on 15 November 2013.
On the charge that on 16 August 2012 at Kurnell you did use an offensive weapon with intent to intimidate Constable Andrew Gallina by pointing the firearm directly at the said Constable Gallina, you are convicted. I sentence you to imprisonment. I set a non-parole period of two years, commencing on 16 May 2013 and expiring on 15 May 2015. I impose a further term of imprisonment of one year, to commence upon the expiration of the non-parole period and expiring on 15 May 2016. The total sentence is therefore three years, comprising the non-parole period and the balance of the sentence. I have found special circumstances.
For the offence that on 16 August 2012 at Kurnell you did fire a firearm, namely a single barrel shotgun, near a public place, namely Torres Street, Kurnell, you are convicted. I sentence you to imprisonment. I set a non-parole period of fifteen months, commencing on 16 May 2014 and expiring on 15 August 2015. I impose a further period of imprisonment of nine months, to commence upon the expiration of the non-parole period and expiring on 15 May 2016. The total sentence is therefore two years, comprising the non-parole period and the balance of the sentence. I have found special circumstances.
On the charge that on 16 August 2012 at Kurnell you did use an offensive weapon with intent to commit the indictable offence of intimidating Leading Senior Constable Mark Davidson, you are convicted. I sentence you to imprisonment. I set a non-parole period of nine months, commencing on 16 May 2015 and expiring on 15 February 2016. I impose a further period of imprisonment of two years and three months, to commence at the expiration of the non-parole period and expiring on 15 May 2018. The total sentence is therefore three years, comprising a non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period and that is on 15 February 2016. In passing that sentence I have taken into account the two matters on the Form 1.
Again I point out, Mr Hickman, that effectively you are being sentenced to imprisonment for three years and six months with an additional term of two years and three months, such that you be eligible for release to parole on 15 February 2016 and will be under the Probation and Parole Service for two years and three months provided the Parole Board admits you to parole. Do you understand?
OFFENDER: Yes.
HIS HONOUR: Now, ladies, my Associate and I spent some considerable time working out the mathematics on this. Do you want to have a look at this?
BURGOYNE: Yes, your Honour. Your Honour, you may be one, literally one day out. With the call-up, the first - the common assault, if I'm correct, your Honour - is sentenced to one month commencing 16 August 2012 expiring 15 September.
HIS HONOUR: Expiring 15 September.
BURGOYNE: The three remaining sentenced to two months commencing 15 September and I think your Honour said expiring 15 November.
HIS HONOUR: No, they start the 16th, 16 September and expire 15 November. The next sentence starts on 16 November.
BURGOYNE: Thank you.
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Amendments
19 August 2013 - In paragraph 30. "Crimes Act" has been removed from Constable' Davidson's name.
Amended paragraphs: 30
Decision last updated: 19 August 2013
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