R v Hicks (No 2)
[2019] ACTSC 333
•27 November 2019
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 |
Cases Cited: | R v Hicks [2019] ACTSC 331 |
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.
The Crown pointed out a number of aggravating features of the offending. These included the breach of trust as between the older man and the young girl, her vulnerability as a homeless person, the sexually charged environment and the prevalence of drugs in the unit.
There is no victim impact statement from the complainant. I do not regard this as indicative of an absence of an effect on her. I was informed that she was unable to be contacted.
The offender pointed out some mitigatory factors. These included the absence of any contact in the course of the offending and the complainant not being an object of the offender’s desire. While I accept the latter point, I treat it with some caution because there would no doubt be, certainly in the eyes of a young girl, mixed messages arising from the older man standing naked in front of her or masturbating alongside her.
I do however agree with the assessment of both parties that the offences were at the lower end of objective seriousness.
The facts of the charges to which the offender pleaded guilty arise from a search warrant which was executed at the offender’s residence on 25 January 2019. The police located an exercise book in which the following two narratives were found:
A story about the accused living in a granny flat. He was invited into the main home where “Nina” and her two daughters – “Sara” who was 15 years old and “Kim” who was 14 years old– were drinking. “Sara” passionately kissed the accused. “Kim” was seated on the counter, with widespread legs, and was “rubbing her tiny young pussy”. “Sara” lifted her skirt up and “ran her hand down between her cheeks”. “Sara” told her mother that she had seen her “sucking your brother’s huge cock as Pop was fucking you in your ass”. (Count 1)
“I walked into Zac and Brett’s place and they were both naked sitting on the lounge as Zac’s 16 y/o brother, Paul, was sucking both there cocks. I had a…shot in my pocket. I said I just have to have a piss. Paul said will I piss over him, I said ok. I started stripping as they went out back so I quickly had my shot. It hit me hard. As I went out, Zac was pissing over his little brother. I stood beside Brett and started pissing. As I pissed, Paul sucked me”. (Count 2) (redacted).
Prior to the offender entering his pleas of guilty I heard legal argument on whether or not the above entries constituted “child exploitation material” within s 65 of the Crimes Act (R v Hicks [2019] ACTSC 331). I found in favour of the Crown. The offender had earlier indicated that this result would lead to the guilty pleas. Accordingly, I am of the view that the offender is entitled to a discount for his pleas of guilty, which I assess at 20%.
Both of the child exploitation material offences are of equal objective seriousness, which, again with the concurrence of both parties, I place at the lower end of the scale. My assessment would have been different if there was any suggestion that the stories were true, or related to actual persons, or if they had been made available to other persons. I accept that the entries were for the private use of the offender and reflected his fantasies, rather than any actual events.
The offender was born in 1965 in Queensland. He is of Aboriginal descent. He later moved to Cessnock in New South Wales. He completed his schooling to Year 10 level. There is no evidence to suggest he had anything other than a normal upbringing.
The offender does not have a good work history although he did have employment with Telstra for about five years. I was told he now has a job offer as a commercial cleaner.
The offender’s poor work history is probably a product of his long-term dependence on illicit drugs. Almost surprisingly he has no mental health problems, but he does have a heart condition which required the insertion of a stent in 2017. He is now dependent on daily medication.
I was informed that he has stopped using drugs while in prison. Hopefully this will continue.
The offender has two daughters, aged 23 and 28 respectively. They are unaware of these proceedings.
The offender has a criminal record which extends through the Australian Capital Territory, Victoria and South Australia. With the exception of some driving offences in 2017 most of the offences occurred some years ago. There are no convictions for offences similar to the present charges.
The offender was arrested on 25 January 2019. He has spent 307 days in custody.
Both parties provided me with a number of cases to establish sentencing patterns. It is always difficult to do so because every case turns on its own facts. However, I have found the cases of R v Pham (Supreme Court of the Australian Capital Territory, Burns J, 23 October 2012), Znotins v Harvey [2015] ACTSC 241 and R v Jones [2014] ACTSC 119 to provide the most assistance in respect of the indecency charges.
It is important that I take into account the principles and objects of sentencing as set out in the Crimes (Sentencing) Act 2005 (ACT) and also the various factors listed in s 33 of this Act. In addition I need to bear in mind principles of totality.
All offences involving children must be taken very seriously. Even though these particular offences are generally of minor objective seriousness, the mere involvement of a young person almost demands sentences of imprisonment.
The offender will automatically be placed on the child sex offenders register. While I’ve taken this into account, I do not regard it as a factor which should mitigate the sentences imposed.
I make the following orders:
(a) For the offence of act of indecency in the presence of a young person (CC5461/2019) the offender is sentenced to 6 months’ imprisonment to commence on 25 January 2019 and end on 24 July 2019.
(b) For the offence of act of indecency in the presence of a young person (SCCAN3740/2019) the offender is sentenced to 6 months’ imprisonment to commence on 25 March 2019 and end on 24 September 2019.
(c) For the offence of possessing child exploitation material (CC5451/2019) the offender is sentenced to 2 months’ imprisonment (reduced from 2.5 months) to commence on 28 August 2019 and end on 27 October 2019.
(d) For the offence of possessing child exploitation material (CC5452/2019) the offender is sentenced to 2 months’ imprisonment (reduced from 2.5 months) to commence on 28 September 2019 and end on 27 November 2019.
(e) The total term of imprisonment is 10 months and 3 days.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 27 November 2019 |
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Amendment
29 November 2019 Excerpts of [12] redacted.
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