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District Court 10 July 2020

R v Hickey

[2020] NSWDC 578

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Hickey [2020] NSWDC 578
Court: District Court of New South Wales
Date: 10 July 2020
Judge: ML Williams SC DCJ

Background

The offender, a 22-year-old Aboriginal man, pleaded guilty to three principal charges and had several further matters taken into account on a Form 1. The principal charges were: assault with intent to rob while armed with an offensive weapon (s 97(1) Crimes Act 1900); common assault (s 61); and aggravated entry into a dwelling with intent while armed with an offensive weapon (s 111(2)). All offending occurred within a single 24-hour period in late August 2019 across locations in Lethbridge Park and Strathfield.

The first offence involved the offender entering a grocer, demanding cigarettes, and returning with a knife to threaten the shopkeeper. The following morning, he entered an unlocked share house, stood over a sleeping student with a kitchen knife, and demanded money. He took her purse and phone, made comments and physical contact that caused her to fear sexual assault, and fled when she jumped from a window. Shortly afterwards, he pointed a knife at a bystander near Strathfield Railway Station.

At the time of the offending, the offender was on parole following a 2017 sentence for robbery in company. He had a criminal history dating to 2012, including dishonesty, property, and drug offences. Forensic psychiatric evidence established he was acutely psychotic at the time of the offences, most likely due to heavy methamphetamine use triggering an underlying schizophrenic illness.

  • What aggregate sentence and non-parole period were appropriate, having regard to the objective seriousness of each offence and the principle of totality?
  • How should the Form 1 matters be reflected in the sentence?
  • What weight should be given to the aggravating factors of breach of conditional liberty and prior criminal history?
  • What weight should be given to the mitigating factors of a guilty plea (attracting a 25% discount), mental illness, deprived background, and prospects of rehabilitation?
  • Did special circumstances exist warranting a departure from the standard ratio between non-parole period and head sentence?

Decision

Objective seriousness. Williams SC DCJ assessed the assault with intent to rob as falling slightly below the objective seriousness postulated by the Henry guideline, noting the offence was not a completed robbery. The aggravated home invasion was assessed as around or slightly below the mid-range: the victim was asleep and vulnerable, the knife was capable of causing serious harm, but the offending was unsophisticated and involved limited planning. The remaining offences were characterised as products of the offender's disordered thinking in a compressed and chaotic period.

Aggravating and mitigating factors. The court identified the breach of parole as a significant aggravating factor, alongside the offender's prior record. Against this, the guilty plea warranted the agreed 25% discount. The offender's acute psychosis at the time of offending, his severely deprived upbringing (relevant under the principles in Bugmy v The Queen), and his expressions of remorse were treated as reducing moral culpability. The court accepted that his remorse was unlikely to have been feigned, given the context of multiple suicide attempts and his mental state.

Mental illness and rehabilitation. Forensic psychiatrist Dr Sam Calvin initially diagnosed drug-induced psychosis but revised his opinion to schizophrenia, based on the persistence of symptoms in a relatively drug-free custodial environment despite antipsychotic medication. The court accepted that the offender's heavy drug use had precipitated the schizophrenia. The court also noted his willingness to engage with drug rehabilitation and other programs.

Special circumstances. The court found special circumstances, resulting in a longer parole period than would otherwise apply. This reflected the offender's need for substantial support in reintegrating into the community, the particular barriers he faced, and Dr Calvin's recommendation for an extended period of rehabilitation and ongoing treatment. The court also recommended that Community Corrections and Corrective Services address his mental health needs both in custody and on release.

Orders Made

  • The offender was convicted of each of the three principal offences.
  • Indicative sentences:
  • Assault with intent to rob armed with an offensive weapon (s 97(1)): 2 years, 6 months
  • Common assault (s 61): 6 months
  • Aggravated enter dwelling with intent armed with an offensive weapon (s 111(2)), taking into account Form 1 matters: 3 years
  • An aggregate sentence of imprisonment of 3 years, 9 months, commencing 29 November 2019.
  • A non-parole period of 2 years, 3 months, expiring 28 February 2022.
  • Special circumstances found.
  • For the two knife possession offences (s 11C(1) Summary Offences Act 1988): convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.
  • The court recommended that Community Corrections and Corrective Services address the offender's mental health issues in custody and upon release to parole.

Key Takeaways

  • A finding of special circumstances was justified by the offender's acute mental illness, severely deprived background, and the substantial support required for community reintegration, producing a parole period longer than the statutory default.
  • Under the principles in Bugmy v The Queen, an offender's deprived Aboriginal background remains a relevant mitigating consideration, to be weighed alongside the harm caused to victims and the other purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
  • Form 1 matters do not increase the objective seriousness of the principal offences, but they do inform the need for additional deterrence and retribution, consistent with the approach confirmed in the Attorney General's Application No 1 of 2002 guideline judgment.
  • The Henry guideline for armed robbery applies to completed robberies; an offence of assault with intent to rob may fall below the guideline's assumed level of objective seriousness where the robbery was not completed.
  • Acute psychosis at the time of offending, even where self-induced through drug use, remains capable of reducing an offender's moral culpability and informing the sentencing exercise, particularly where the underlying psychiatric illness was diagnosed after the fact.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61, 97(1), 111(2), 117, 148
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 10A, 166
- Summary Offences Act 1988 (NSW): s 11C(1)

Cases
- R v Henry (1999) 46 NSWLR 346 (Henry guideline on armed robbery sentencing)
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline on Form 1 matters)
- Bugmy v The Queen (2013) 249 CLR 571 (relevance of deprived Aboriginal background to sentencing)