R v Hicks (No 2) - [2019] ACTSC 333

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hicks (No 2)
Citation:	[2019] ACTSC 333
Hearing Date:	27 November 2019
DecisionDate:	27 November 2019
Before:	Elkaim J
Decision:	See [25]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the presence of a young person – possession of child exploitation material
Legislation Cited:	Crimes Act 1900 (ACT) ss 61(2), 65 Crimes (Sentencing) Act 2005 (ACT) s 33
Cases Cited:	R v Hicks [2019] ACTSC 331 R v Jones [2014] ACTSC 119 R v Pham (Supreme Court of the Australian Capital Territory, Burns J, 23 October 2012) Znotins v Harvey [2015] ACTSC 241
Parties:	The Queen (Crown) Darrell Hicks (Offender)
Representation:	Counsel Ms S Jerome (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 227 of 2019; SCC 131 of 2019

ELKAIM J:

On 22 November 2019 the offender was found guilty by a jury of two counts of committing an act of indecency in the presence of a young person (CC5461/2019; SCCAN3740/2019) contrary to s 61(2) of the Crimes Act 1900 (ACT). The maximum penalty for those offences is 10 years’ imprisonment. The offences took place between 1 August 2018 and 24 November 2018 and related to a single complainant.

On 27 November 2019 the offender pleaded guilty to two counts of possessing child exploitation material (CC5451/2019; CC5452/2019) contrary to s 65 of the Crimes Act. The maximum penalty for those offences is a fine of $112,000, 7 years’ imprisonment or both.

He is being sentenced today for all four offences.

Dealing first with the two charges for which the offender was found guilty, I am satisfied that the jury found beyond reasonable doubt that the offender stood naked before the complainant, revealing his genital area for the purpose of her taking a photograph of him. The photograph was to be sent to another person in whom the offender had a sexual interest. This was Count 1.

In respect of Count 2 I am satisfied that the jury found beyond reasonable doubt that the offender sat next to the complainant, viewing pornography on his mobile phone, and while he did so appeared to be masturbating beneath a blanket.

When the indecency offences occurred the offender was living in a one-bedroom unit in Strathgordon Court in Lyons, Australian Capital Territory. He had a history of being homeless from time to time. As a result he made his home available to homeless persons, providing them with food and sometimes accommodation. The complainant was a homeless girl, then aged 14, for whom he provided a place to live on a temporary basis.

The offender’s hospitality to homeless persons is admirable but somewhat clouded by the fact that illicit drugs were available in his unit and, as is evident from the findings of the jury, he conducted himself in an overtly sexualised manner in the presence of a young girl.

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hicks (No 2)

Details

AGLC: R v Hicks (No 2) [2019] ACTSC 333
Case: [2019] ACTSC 333
Decision Date: 27 November 2019

CaseChat Overview and Summary

The appellant was convicted of an act of indecency in the presence of a young person and possession of child exploitation material. The Court of Appeal was asked to determine whether the primary judge had erred in his assessment of the appropriate sentence. The appellant argued that the sentence was excessive and did not take into account all the relevant factors. The Crown submitted that the sentence was appropriate given the gravity of the offences.

The court considered the principles of sentencing in relation to these types of offences, including the need to protect the community, deter the offender and others, and rehabilitate the offender. The court noted that the appellant had a previous conviction for a similar offence, which was a significant aggravating factor. The court also considered the impact of the offences on the victims, who were young children. After considering all the relevant factors, the court concluded that the primary judge had not erred in his assessment of the appropriate sentence.

The Court of Appeal dismissed the appeal against sentence. The court found that the primary judge had correctly considered all the relevant factors and had imposed a sentence that was proportionate to the gravity of the offences. The court noted that the appellant had a history of offending against young children and that the offences had a significant impact on the victims. The court also noted that the appellant had shown some remorse and had taken steps to address his underlying issues.

The final orders of the Court of Appeal were that the appeal against sentence be dismissed. The original sentence imposed by the primary judge was upheld.

Orders

Orders of the court

See [25]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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