R v Robert Martin HICKS

Supreme Court of NSW|2013-08-02|Before: Adams J

Introduction 1On 3 May 2013 the offender Robert Martin Hicks pleaded guilty to the offence of murder, committed on 10 August 2011. The victim was Patricia Newman, with whom he was then in a relationship. The offender was arrested at the scene and charged with Ms Newman's murder. On 31 August 2012 he was committed for trial. On 2 November 2012 he was arraigned on the present indictment and pleaded not guilty. A trial date of 20 May 2013 was fixed. On 15 April 2013 the offender's solicitor informed the Crown that he would plead guilty to murder and, on 3 May 2013, on re-arraignment he did so. He adhered to that plea when the matter came before me for sentence on 2 August 2013. 2The maximum penalty for murder is imprisonment for life and it carries a prescribed non-parole period of 20 years: s 19A(1), Crimes Act 1900, Table in Div 1A of Pt 4, Crimes (Sentencing Procedure) Act 1999.

Facts 3Tendered on the sentence proceedings was an agreed statement of facts. The following account is taken from that document. 4In 2011 Ms Newman lived in a unit of a building in Lalor Park with her son. The offender, with whom she was in a relationship, lived in another unit in the same building. Both were regular users of illegal drugs. In the course of the relationship, neighbours stated that they frequently heard arguments between the couple. There were also reported incidents of domestic violence. 5At about 9am on Wednesday 10 August 2011 a neighbour saw Ms Newman enter the offender's unit and, shortly afterwards, heard them as they left, obviously discussing drugs which Ms Newman had obtained. About half an hour later the couple went to Ms Newman's unit and then, accompanied by Ms Newman's son, they walked together to the nearby shops. After Mr Newman withdrew some money and gave it to his mother for rent he left the pair together. He said they had not been arguing whilst he was with them that morning and they "seemed to be fine". However, it appears that the couple were arguing when they left the offender's unit. Sometime later, after they returned, a neighbour heard Ms Newman scream loudly from within the unit. It was about 11am. The offender was heard yelling, "Help, Help". 6A neighbour had heard the couple yelling from inside the offender's unit. He heard the offender yell, "I'm sorry. I'm sorry. I'm sorry". He heard Ms Newman yell, "Look what you've fucking done". He saw the offender run from the unit waving his arms and saying, "Can you ring the ambulance, can you ring the ambulance". The neighbour called triple zero. He saw the offender walk out with Ms Newman holding her under her right arm before they both fell to the ground. She appeared unconscious with blood squirting from her neck. Neighbours ran outside and saw Ms Newman lying on the ground on her back and the offender kneeling next to her. He had blood around his mouth and on his hands and appeared to be panicked. The offender said, "I'm losing her. She fell on the glass coffee table". He attempted mouth-to-mouth resuscitation, blowing into Ms Newman's mouth. He said, "I'm losing her, I'm losing her". A neighbour assisted the offender to perform CPR on Ms Newman until police arrived at the scene shortly after, at about 11.14am. Ms Newman was then lying on her back. She did not appear to be conscious or breathing. Two minutes later the ambulance officer arrived. Ms Newman was unconscious and unresponsive with a large amount of blood coming from her nose and mouth. The ambulance officer noticed a large cut to the base of her neck. Ms Newman had a faint pulse and the officer continued with CPR. A retrieval specialist with Care Flight arrived at the scene by helicopter at 11.35am. However, despite performing an open thoracostomy, he was unable to revive Ms Newman and she was declared dead at the scene at 11.47am. 7One of the police officers spoke to the offender when he arrived at the scene. He appeared upset and said, "Help her, help her. She fell and hit her head on the table, she fell, help her". On entering the offender's unit, the police found a large serrated knife with the blade about 15 to 20 centimetres in length lying on the floor in the main room. There appeared to be blood on the tip of the blade. The offender told the officer that Ms Newman had "a point of speed and some cones. I've had a point". 8Another officer reported that, when he arrived at the scene, the offender was beside the victim screaming incoherently and crying. That officer arrested the offender and cautioned him. The offender said - "Is she all right? Is she allright? I had her by the shoulders, she lunged towards me. I blacked out and that is when I saw the bleeding. I woke up and I had the knife in my hand. When I came to I've seen the hole in her throat. I was under the influence of drugs and speed. It was drug induced." The offender also said - "We were having an argument and I grabbed the knife and said I was going outside to cuts some plants and she lunged at me and it went in. I never went this like this (waving his arm in a striking motion at shoulder height)... I tried to revive her but nothing worked." 9To a more senior officer at the scene, the offender said - "We got into a rage and I had the, I had a knife in my hand and I explained to her that I was gunna go outside and fix up some of the plants 'cause I needed to cut off branches and stuff but I really didn't get that far into it. Well, I grabbed her by the shoulders and started shaking her but I had the knife in the other hand - Prior to that, I went black, blacked out. Now when I blacked out I must have - I blacked out which is probably where I - letting her go during my little blacking out and I came to and found her on the floor - bleeding and I just panicked and started helping her but after that but - prior to shaking her I don't remember anything after that. I was just grabbing her like by the shoulders and were sort of shakin each other and prior to, to that happening, she lunged over towards me, like in my direction and l blacked out - you know because I had the knife in me hand - knowing that I had the knife in my hand - I push her back and that's when I remember coming to and seeing her on the ground." The offender was visibly distressed at this time. 10When the offender was taken to the police station he participated in a recorded interview. This was summarised in the agreed facts as follows - "He was asked about his relationship to Ms Newman and said, "Um, boyfriend, girlfriend um, more she'd stay for, like, two nights and then go back to her place, and this happened for, like, a bit over a year, that sort of relationship um, and very close to each other. Um, I loved her more than anything, you know". He told police that earlier that morning Ms Newman had purchased some "gas" (speed) and they had then returned to the unit to administer it. Ms Newman prepared the drug and Mr Hicks used a needle to inject both Ms Newman and himself. Shortly afterwards they argued over the drug, "about whose half was bigger and that, you know, usual drug argument..." Ms Newman accused him of "ripping her off" and they "both started shouting at each other", Mr Hicks stated that he then went into the kitchen and grabbed a knife. He said that he wanted to avoid an argument with Ms Newman and got the knife to prune back some pot plants that were outside his unit. Mr Hicks said that he returned to the lounge area and the argument continued. He said that he didn't want to be part of the argument and he shook Ms Newman and pushed her onto the bed, Ms Newman then got up and started, "abusing me and lunged towards me". Mr Hicks said that, "the blade was facin' like that. The handle was comin' through there, through my thumb like that, right, and as she's, she's come at me, I'm shakin' her, all right. As she's coming towards me, I've blacked out, it's obviously accidentally went in her neck". Mr Hicks said that when he "came to" he saw blood on the knife, dropped it and tried to help Ms Newman, "the best that I could". When told by Police that Ms Newman was dead, Mr Hicks became emotional and the interview was suspended and then concluded." 11On autopsy the cause of death was identified as a stab wound to the left subclavian artery. This injury was to the left side of the base of the neck above the level of the collarbone and passed downwards and towards the back, about 25 millimetres wide and at least 90 millimetres deep. Toxicological testing of blood samples taken from Ms Newman revealed evidence of recent methamphetamine, methadone and cannabis use. These drugs, however, did not contribute to her death in a physical way.

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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2013

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