R v Hickson

[2010] NSWDC 336

CITATION:	R v HICKSON [2010] NSWDC 336
HEARING DATE(S):	10 December 2010
EX TEMPORE JUDGMENT DATE:	10 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment for a period of one year. The execution of that sentence is suspended for a period of twelve months pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon the offender entering into a bond to be of good behaviour for the duration of the sentence.
CATCHWORDS:	CRIMINAL LAW - Sentence - Reckless wounding
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Case Conferencing Trial Act
PARTIES:	The Crown Matthew Hickson
FILE NUMBER(S):	2009/259866
SOLICITORS:	Director of Public Prosecutions Colleen V Donnelly Solicitor - Offender

JUDGMENT

1 HIS HONOUR: Matthew Hickson appears for sentence today after having pleaded guilty at an earlier stage to an offence of reckless wounding, the matter carrying a maximum penalty of seven years and a standard non-parole period of three years. The standard non-parole period is not of direct application because of his plea of guilty but it remains as an important guidepost. I note that the offender pleaded guilty in the District Court to an offence and so because of the Criminal Case Conferencing Trial Act the maximum discount that I can allow because of that plea is 12.5 per cent. In this case the plea of guilty, and in particular at this stage as to the utilitarian benefit of that plea, is one of a number of factors which has led to not only the sentence being reduced by 12.5 per cent but also to me imposing a different form of sentence that that I would otherwise have imposed.

2 Mr Hickson’s offence was committed in somewhat unusual circumstances when he threw a tomato sauce bottle at the victim of the offence. It appears to have been bad luck rather than anything else that led to the bottle actually hitting the victim on his forehead. Mr Hickson might have assumed that the victim would have seen the bottle coming towards him from twenty metres away and moved out of the way. For whatever reason the victim did not move, indeed the bottle struck him on the forehead and caused a laceration which required stitches, which also caused the victim to fall to the ground and briefly lose consciousness. There was a single wound. Although a weapon was used it was not used in a way which was guaranteed to injure the victim and I am satisfied that I should deal with the matter on the basis that Mr Hickson was reckless as to whether the victim would be injured rather than intending for that to happen. In fact it appears from the statement of facts that the bottle was thrown more to frighten and annoy the victim than it was to intentionally injure him. For those reasons I am satisfied that objectively the offence is significantly below the middle of the range of objective seriousness for offences of this type.

3 Mr Hickson is a man with a rather difficult background. It is set out in the report of Dr Jacmon tendered to me today by Ms Donnelly who appeared for the offender. I have in the past been very critical of Dr Jacmon’s reports. I have found that many of his conclusions are unjustified by the history he has taken and that almost every one, indeed every single one to be more precise, contains a statement to the effect that the commission of the offence was accompanied by impaired judgment because there appeared to be little thought given to the consequences. I alerted Ms Donnelly of my published views on Dr Jacmon so that she might seek appropriate instructions from her client. Initially she asked that I disqualify myself but after further discussion she withdrew that application. In any case I have no reason to doubt the history that Dr Jacmon obtained from Mr Hickson.

4 Mr Hickson’s background has been difficult and has involved drug use for a lengthy period. He has been maintained on methadone for a significant time. His dosage was reducing, which he found to be beneficial, but having recently suffered significant injuries in a motor vehicle accident in late September this year he said his methadone has been increased. He is in a relationship with a woman who has difficulties herself. She is currently at Odyssey House. She expects to complete the rehabilitation program there in the near future. One of the matters relied on by Ms Donnelly suggesting that I should not impose a full-time custodial sentence in this case, is that if I were to do so his partner would then have nowhere to live when she left Odyssey House, the Housing Department having the view that if no one is living in the premises then the arrangement cannot continue. However that would not prevent me from imposing a full-time custodial sentence if that was otherwise required.

5 Dr Jacmon diagnosed the offender with a number of matters, including a borderline personality disorder and post-traumatic stress disorder. That latter matter relating to an attack upon Mr Hickson by a man and his dog, the man eventually being given a custodial sentence for it. There is no doubt that Mr Hickson’s mental state is more fragile than most. Any full-time custodial sentence would thus be harder on him than it would on other members of the community.

6 I have not mentioned Mr Hickson’s criminal history, it is significant. However, there is a pre-sentence report available which suggests that there is considerable hope for the future. In summary the report says Mr Hickson has a significant criminal history, however, in recent years there is no evidence of anti-social behaviour. He is in stable employment, stable accommodation and remains in a treatment program. The report speaks of the offender’s involvement with DoCS and the desire to maintain custody of his son, and that both he and his partner are resolved to working towards a drug-free lifestyle. The statement concludes the above factors auger well to continued improvement in their future livelihood. Of course because of the motor vehicle accident I referred to earlier, he is unsuitable for community service.

7 I turn now to the appropriate outcome in this matter. Parliament has, through the setting of a standard non-parole period for offences of this kind, spoken about the seriousness with which he should be dealt with. On the other hand it is to be noted that charges such as these can be dealt with in the Local Court, which according to recent authorities can actually be taken into account in determining whether to impose the standard non-parole period. Even given the lack of intention as I have found for the offender to harm his victim, it is a serious offence for which a custodial sentence is required. I have determined the length of the appropriate sentence and decided that that sentence of imprisonment should be suspended. I note that quite properly, given the nature of the case before me, the Crown did not speak in opposition to that ultimate outcome.

8 The offender is therefore sentenced to imprisonment for a period of one year from today. The execution of that sentence is suspended for a period of twelve months pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon the offender entering into a bond to be of good behaviour for the duration of the sentence. The conditions applying pursuant to that bond are these:

• He is to be of good behaviour.
• He is to appear before this Court if called upon to do so at anytime.
• He is to accept the supervision of the Probation and Parole Service and in particular, should that Service require, he is to undergo treatment from either Dr Jacmon or some other form of health professional for the matters referred to in Dr Jacmon’s report.

9 Mr Hickson, what I’ve done is put you on a bond but it’s not just any sort of bond. It’s a bond that if you breach you go to gaol, you understand? It’s not a matter of coming back and trying to persuade me that some other form of sentence should be imposed, I have actually sentenced you to imprisonment and if you breach the bond you start serving the sentence. If you don’t breach the bond you don’t serve the sentence, pretty simple. Now, how can you breach the bond? Committing further offences is the obvious one. Another way is if you don’t do what Probation and Parole Service require. Either of those decisions by you, if you decide to commit an offence, if you decide to not the supervision of the Probation and Parole Service, you come back before me. Not any other judge. Not some probation officer. It is me that will deal with you and, as I have said, I have imposed a sentence of imprisonment upon you and if you breach it then you’ve got to serve it. Do you understand?

10 OFFENDER: Yes, I do.

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