R v Robert Martin HICKS

Did the offender intend to kill? 12The Crown submitted that it should be concluded that the offender intended to kill Ms Newman whilst, on the other hand, it was submitted by Mr Winch on the offender's behalf that I would not be satisfied of this beyond reasonable doubt and therefore should sentence the offender on the basis that he intended to cause grievous bodily harm but not death. By and large, an intention to cause death is regarded as more reprehensible than an intention to cause grievous bodily harm. In the circumstances of this case, the distinction is, to my mind, significant. 13The accounts given by the offender about how he came to stab Ms Newman are plainly incredible. Since, on his own admission, he held a knife in one hand, he could not also have "had her by the shoulders". Although he had taken some drugs, there is nothing to suggest, and the offender does not do so, that he was intoxicated or significantly intoxicated. That he blacked out before actually wielding the knife and only afterwards discovered that he had wounded Ms Newman in the neck is not reasonably possible. The possibility that Ms Newman lunged at him cannot be completely dismissed but the character and angle of the wound demonstrate that this is not how the stabbing came about. Nor do I believe that he took up the knife to prune the plants. 14I think it is inescapable that the offender got the knife (wherever it was, perhaps in the kitchen) for the purpose, most likely, of threatening Ms Newman. I am persuaded beyond reasonable doubt that, at some point in their argument he raised the knife and intentionally stabbed her in the neck. I think it is very likely that this was on the spur of the moment as a momentary act of considerable anger, rather than premeditated. Although, as he struck, he plainly intended to cause serious injury I am not satisfied beyond reasonable doubt that he intended to kill her. As soon as he stabbed her he regretted doing so and did his best to save her life though this was inevitably ineffectual. Although, on one view, the offender had the presence of mind to invent (two) stories about how the injury occurred, these accounts were plainly absurd and do not inform the issue of intent. 15Accordingly, I am required to sentence the offender on the basis that he intended to cause grievous bodily harm to Ms Newman.

Subjective features 16Tendered on the offender's behalf was a report of Ms Barbara Panagiotopoulos, who interviewed the offender when he was in custody on 10 July 2013 and conducted various psychometric tests. His overall cognitive abilities were borderline, performing higher than only 8% of his peers. He is functionally literate and there was no evidence of disturbance in his executive functioning. The psychologist's concluding summary stated - "Mr Hicks' early history was one of parental neglect and abuse, which appears to have had a negative impact for Mr Hicks' sense of self-worth despite the efforts of his aunt and uncle. As a result of these poor early attachments, Mr Hicks developed vulnerabilities as a child and experienced both learning and social difficulties. While he reportedly had a caring and supportive relationship with his aunt and uncle, as an adolescent, Mr Hicks drifted in to a delinquent peer group and began experimenting with both alcohol and drugs. These antisocial peer connections became further entrenched with age and, coupled with substance abuse, Mr Hicks began to engage in antisocial behaviour, which resulted in his previous incarcerations. He has a lengthy history of substance abuse that appears to be his coping strategy and his drug use has been instrumental in the previous decline of his mental health. Further, this lifestyle has interfered with his ability to gain any notable forms of lawful employment, and as such he has been predominately unemployed. It appears that Mr Hicks' criminal convictions are motivated by a combination of his antisocial attitudes, his mental health and his drug use. On assessment, Mr Hicks has a limited but functional intellect and does not appear to have any executive function difficulties. However, Mr Hicks was found to have a few prevalent personality dysfunctions and clinical symptomatology that are likely to be maladaptive in his social functioning such that they impact on his day-to-day life. In hindsight, Mr Hicks now has regret and remorse about the offence. Further, he appears to have used his current situation to make changes in his lifestyle. Specifically, he stated that he wants to remain drugs free and keep away from antisocial peers in the future. However, he will need a lot of help while incarcerated if he is to be successful in making and sustaining these changes." 17The psychologist had the benefit of speaking with the offender's aunt who, with her husband, assumed family responsibility for the offender just before his second birthday. Mrs Hicks has also written a letter for the purpose of outlining the offender's background which was tendered on the hearing. She also gave evidence she and her husband have taken the best care they could of the offender. I accept that, as she feels, many of the problems evident in the offender's life have developed to some degree or other from the appalling way in which he was treated by his parents before Mrs Hicks took responsibility for him. He is indeed fortunate not only to have received but to continue to have the support of his aunt and her husband. Although he must of necessity serve a lengthy period of imprisonment, that continuing support will be important to his long term rehabilitation. 18I note that the psychologist reported that the offender expressed regret and remorse for the death of the victim and her son and mother. However, his statement that he did not intend to harm the victim is not truthful and, although he has said that he "takes full responsibility for" killing Ms Newman, it is clear that he is does not fully admit, at least to others, that indeed he knowingly stabbed her intending to cause her very serious injury. Certainly, by his plea, he has accepted full legal responsibility for what he has done. Nice distinctions about whether he is unwilling or unable to do more do not seem to me to be of great significance. In this respect, a letter of the offender was tendered in the proceedings expressing both his love for Ms Newman and what he described as taking "full responsibility for Patricia's death and I'm totally remorseful for my actions on that day". Such material, though it is proper to be received, adds little to the evidence. To my mind, the offender's behaviour immediately after the infliction of the wound demonstrates more convincingly the extent of his regret and, as it seems to me, remorse. A plea of guilty, of course, is of its very character an acceptance of legal responsibility for the crime admitted. Here, it has some additional significance since the Crown case, although strong, was not overwhelming. 19Whilst the offender's psychological problems which are not altogether of his own making constitute, no doubt, an element in the commission of the offence, they are not such as to suggest that he is an inappropriate vehicle for general deterrence. Nor does it seem to me that they give rise to any particular reason for leniency. 20So far as the offender's prior convictions are concerned, they go back to when he was a teenager but were relatively trivial and were dealt with in the Local Court except where he appealed to the District Court. The most serious offences occurred in May 1999 when he was sentenced to nine months minimum term with a nine months additional term for demanding property by force with intent to steal. He served short terms of imprisonment, imposed in June 2000, for inciting an aggravated indecency where the victim was under his authority, threatening injury to a person for being a witness, contravening an apprehended domestic violence order and using a carriage service to menace or harass a person. These sentences were concurrent, indicating that they arose out of a single incident.

Objective seriousness 21The criminal taking of a human life must be regarded as a very serious offence, as reflected in the applicable maximum penalty and standard non-parole period. Nevertheless, it is clear that instances of this crime vary in relative seriousness. Generally speaking, where the intention was not to kill but to cause grievous bodily harm which arose at the spur of the moment and the cause of death was an isolated act of momentary, though extreme, angry violence with no ulterior motive the objective seriousness of the crime lies toward the lower end of culpability. These considerations are essentially incommensurable and do no more than indicate that culpability should be placed rather lower than higher in the range. 22So far as the factors referred to in s 21A(2) of the Crimes (Sentencing Procedure) Act are concerned, of course the offence involved the actual use of violence by way of a weapon and a grave risk of death (see paragraphs 2(b), (c), (ib)). These are necessarily involved in the offence itself and I have taken them into account in that way.

Conclusion 23So far as the appropriate discount for the plea is concerned, in light of the procedural history mentioned above, an appropriate discount is 15 per cent. 24Applying the discount to the sentence that would otherwise have been appropriate, I impose a sentence of 17 years imprisonment. Having regard to the period of potential parole which would be available were the statutory calculus provided by s 44 of the Crimes (Sentencing Procedure) Act to apply, I do not find that there are special circumstances justifying a variation of that period. The non-parole period will accordingly be 12 years and 9 months. The sentence is to commence on 10 August 2011. The earliest date upon which the offender will be eligible for parole is 10 May 2024. The offender is now subject to the Crimes (High Risk) Offenders Act 2006 and may therefore be made subject of an extended supervision order or a continuing detention order if it be determined that he is a high risk violent offender. For the reasons I have already given, I consider that his prospects of rehabilitation are reasonable but, should this be shown in the result to be mistaken, appropriate action can be taken to protect the public.

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