Citation: R v Hickman [2013] NSWDC 143
Court: District Court of New South Wales
Date: 17 May 2013
Judge: Neilson DCJ
Background
The offender, Kelvin John Hickman, was a long-term resident of Kurnell with a documented history of drug and alcohol abuse and an intellectual disability. He had previously been sentenced to multiple good behaviour bonds by the Local Court following a series of offences in 2010 and 2011, including common assault, mid-range drink driving, and intimidating his elderly father with a knife and spear gun.
On 16 August 2012, while subject to four active section 9 bonds, the offender became involved in a siege at his home. Police negotiated with him over an extended period during which he aimed a firearm at officers, fired one shot into the air, fired a second shot over the top of a police armed vehicle, and aimed the firearm at police again. A muffled gunshot was also heard from inside the residence. Police discharged two rounds at the offender, resulting in injuries to both hands and the subsequent amputation of the little and ring fingers of each hand.
The offender pleaded guilty to four serious offences arising from the siege, including using an offensive weapon with intent to intimidate, and multiple firearms offences under the Firearms Act 1996. He also admitted to breaching all four section 9 bonds imposed in October 2011. The court accepted that the offences were committed as a result of substance-induced psychosis.
Legal Issues
- What sentences were appropriate for four serious offences committed during the siege, including use of an offensive weapon with intent to intimidate a police officer and multiple firearms offences?
- How should the court treat the breaches of four section 9 good behaviour bonds?
- What weight should be given to the offender's mental health diagnosis (substance-induced psychosis), intellectual disability, and history of drug and alcohol abuse in mitigation?
- Whether special circumstances existed to justify a variation from the standard non-parole period ratio.
Decision
Neilson DCJ accepted that the offender's conduct on 16 August 2012 was the product of substance-induced psychosis rather than deliberate criminal planning. This diagnosis, combined with the offender's intellectual disability and long history of substance abuse, was treated as relevant to moral culpability, though it did not eliminate the seriousness of the conduct. The court noted the earlier offending in 2010 and 2011 also showed signs of paranoid ideation, providing context for the August 2012 events.
The court sentenced the offender to short periods of imprisonment for each of the four bond breaches, structured to run cumulatively. For the most serious of the siege offences, use of an offensive weapon with intent to intimidate a police officer, the court imposed a total sentence of three years, comprising a non-parole period of nine months and a balance of term of two years and three months. Special circumstances were found in respect of this and other charges, justifying a longer than standard additional term to allow for supervision on parole.
The court also took into account two matters on a Form 1 (additional matters asked to be considered at sentencing without separate conviction) in relation to the weapons with intent charge. The overall sentencing structure was designed so that the offender would be eligible for parole release on 15 February 2016, with the Probation and Parole Service supervising him for a further two years and three months thereafter, subject to Parole Board approval.
Orders Made
- Common assault (20 October 2010 offence, bond breach): fixed term of imprisonment of one month, commencing 16 August 2012
- Three remaining bond breach matters: two months imprisonment each, served cumulatively from 16 September 2012, expiring 15 November 2012
- Additional sentences imposed for the serious firearms and weapons offences arising from the 16 August 2012 siege, structured cumulatively
- For the offensive weapon with intent to intimidate charge (the principal offence): non-parole period of nine months commencing 16 May 2015, expiring 15 February 2016; balance of term of two years and three months expiring 15 May 2018; total sentence of three years
- Special circumstances found in relation to multiple charges
- Two Form 1 matters taken into account in sentencing on the weapons with intent charge
Key Takeaways
- The District Court treated substance-induced psychosis as a mitigating factor affecting moral culpability, even where the offences were objectively very serious and involved the use of firearms against police.
- A diagnosis of psychotic disorder resulting from substance abuse does not negate criminal responsibility but can reduce the weight given to general deterrence in the sentencing exercise.
- Where an offender is subject to multiple concurrent good behaviour bonds at the time of fresh offending, the court can impose separate, cumulative custodial terms for each breach, even where those terms are short.
- Special circumstances were found across multiple charges, permitting a longer additional term relative to the non-parole period, in recognition of the offender's need for extended post-release supervision given his mental health, disability, and substance abuse history.
- The earlier pattern of conduct in 2010 and 2011, including threats made with weapons and signs of paranoid ideation, was treated as relevant background context for understanding the August 2012 siege, rather than as a straightforward aggravating factor.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 33B(1)(a) (use offensive weapon with intent to commit indictable offence)
- Firearms Act 1996 (NSW) s 7A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 (good behaviour bonds)
Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- R v Cicekdag (2004) 150 A Crim R 299
- R v Mostyn (2004) 145 A Crim R 304