Hitchcock v R

HOEBEN CJ at CL:

Ten days before his trial was due to commence, the applicant entered a plea of guilty to that charge. He was sentenced by Judge Hanley SC on 24 September 2015. His Honour sentenced the applicant to imprisonment with a non-parole period of 8 years commencing 28 May 2013 and expiring 27 May 2021 with a balance of term of 4 years expiring 27 May 2025.

The applicant seeks leave to appeal against that sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912. He relies upon a single ground of appeal:

Mr Shannon Suttle (the victim) had been married to Ms Tara Hebb (the co-accused). The co-accused and the victim had two children together. Pursuant to an order of the Family Court, the victim had been granted access to the children every third Saturday, which was to take place at Oxley Park in Sydney. The access order therefore required the co-accused, who was then living at Tweed Heads, to take the children to Sydney every third Saturday.

The applicant first met the co-accused in 2013 when they each lived in the same unit complex in Tweed Heads. The co-accused told the applicant that the victim had threatened to harm her and her children.

In May 2013 the applicant told his father that he was travelling to Sydney and his father assisted him in booking a flight from Coolangatta on 16 May 2013. On this date, the co-accused sent a text message to him saying “So long as the boys’ dad is gone, I will be happy”. In his record of interview the applicant agreed that he understood from this text message that the co-accused wanted the victim dead. It was the Crown case that it was at this time that the applicant agreed to kill the victim for the co-accused.

On 18 May 2013 the applicant arrived at his mother’s residence in Blacktown. He stayed there for a number of days. During the stay, he told his mother that he had met a girl named Tara in Tweed Heads. He told his mother that her ex-partner was causing her trouble and that she had to bring her children down to Sydney to see him.

On 22 May 2013 the co-accused sent a text message to the applicant providing the name of the victim’s employer, his fiancée’s name and the name of both his fiancée’s parents. She sent a further message to the applicant asking if everything was right to go from his end. During his stay with his mother, the applicant told her that he thought that he may have to go away for a long time.

On Saturday, 25 May 2013 the co-accused sent the applicant a text message providing the address of the father’s group that the victim was attending. The co-accused said that her sons would be with the victim. On this day the applicant arranged for his mother to take him to the Blacktown Railway Station at about 9.30am. At about 10.30am his mother received a phone call from him in which he was crying and asked to be picked up at the Doonside Railway Station. She refused because she had other plans.

On that day the victim arrived at the drop-in centre at Oxley Park at around 10am. The co-accused delivered her children to the drop-in centre also at around 10am. She contacted a friend, Ms Middlebrook, and arranged to meet her at the drop-in centre while she was waiting for the victim’s visit to end. This occurred at about 11.30am. The co-accused requested Ms Middlebrook to pick up her friend “Matt” from St Marys Railway Station and drive him to the park where the access visit with the children was to continue.

Ms Middlebrook picked up the applicant in her vehicle and drove him to the edge of the park. The applicant exited the car and departed. He went to a nearby grocery store and purchased a fruit knife with a 20 cm blade. He was wearing a dark hooded jumper, a beanie and dark pants. He was pictured on CCTV walking to and from the park.

Shortly before 12pm, the co-accused returned to the drop-in centre and told the victim that she would take the children to the park for the second part of the access visit. She then drove the children to the park and parked near Ms Middlebrook’s vehicle.

The victim was picked up by his fiancée and driven to the park. The victim could see that the co-accused was parked on the other side of the park and recognised Ms Middlebrook’s vehicle. The victim walked into the park and his son commenced to run towards him.

At the same time, the applicant ran towards the victim and commenced punching him and then tackled him to the ground. He was armed with a knife and stabbed the victim at least six times using a punching motion. The punches were to the victim’s head, face, back and chest. The victim attempted to fight him off.

The applicant got off the victim and fled along Muscio Street, where a witness observed him jump over a fence into a construction site. A subsequent search of the site by police located the knife that was used in the attack. Another witness observed the applicant to run further along Muscio Street before jumping a fence which led into a church on Marsden Road. A search of the grounds of the church located the dark coloured hooded jacket, the dark coloured tracksuit pants and a blue coloured beanie, which the applicant had been wearing. The applicant returned to his mother’s house in Blacktown.

When an ambulance attended the victim he was observed to be bleeding from a number of wounds, including wounds to the back of the head, thigh and chest. He was taken to Westmead Hospital. He had a superficial laceration to his left forehead, a penetrating wound to his left pectoral region, a penetrating wound through the abdominal wall of the stomach, a 2 cm penetrating wound to the thigh and a 1 cm wound to the right buttock. A laparotomy was performed to ensure that no major organs had been perforated.

The co-accused was spoken to by police that day. On the afternoon of 25 May 2013 she sent a text message to the applicant saying “Stuck at the cop shop, you need to smash your phone, they saw you I think”.

On Sunday, 26 May 2013 the co-accused telephoned the applicant and the conversation was intercepted. During the call, the co-accused informed the applicant that he needed to destroy his SIM card and discussed what had happened to him after the stabbing. The co-accused informed the applicant that the incident was being reported in the media and that they had his description. The applicant told the co-accused that he needed to get away from where he was.

At about 8am on Tuesday, 28 May 2013 the applicant was arrested at Gosford train station while attempting to return to his home address. He was conveyed to Gosford Police Station and interviewed. He was asked about what happened on Saturday. He replied “I stabbed someone”. When asked what the co-accused meant by the text message “So long as the boys’ dad is gone, I will be happy”, the applicant said “She wanted him dead”.

The applicant stated that he had obtained a lift from an unknown person to the park in a small green coloured car and that he had purchased the knife before the stabbing from the shops nearby. A search of the applicant identified a small 2013 diary which included hand written notes. On one of the pages was the name of the victim, the victim’s parents’ address and a mobile phone number. The applicant said that it was written by the co-accused.

On Wednesday, 29 May 2013 the co-accused was arrested at Tweed Heads Police Station and taken into custody at which time she said “I didn’t want him to go through with it”. Investigators asked why she still organised for her friend to convey the applicant to the park on the day if she did not want the incident to occur. She did not respond and refused to be further interviewed.

In the course of his sentence judgment, his Honour had occasion to consider the assistance for which the applicant submitted he was entitled to a discount. His Honour dealt with the matter as follows:

The appeal turned largely on the meaning of s 23 of the Crimes (Sentencing Procedure) Act 1999 (the Act). That section relevantly provides:

Also relevant is s 101A of the Act which provides:

The Crown’s written submissions accepted that the ground of appeal had been made out:

Before making that concession, the Crown set out its analysis of cases on the issue of the interrelation between s 23(4), 23(6) and 101A of the Act. The Crown noted that there was a possible conflict between the decisions of this Court in R v Robinson [2014] NSWCCA 12 at [42] (Basten JA) and Avery v R [2015] NSWCCA 50 at [68] (Bellew J) on the one hand and Panetta v R [2016] NSWCCA 85 at [36] (Adams J) on the other. It is not necessary, for the purposes of deciding this application, for this Court to express any final opinion on that possible conflict of approach. This is because full argument was not received on the issue and the occurrence of error and the making out of the applicant’s ground of appeal has been expressly conceded by the Crown. The argument before this Court proceeded on the question of whether on re-sentence, a lesser sentence was warranted in law.

Accordingly, in following this approach this Court should not be taken to have expressed any firm view on whether the approach in Panetta should be followed in preference to that suggested in Robinson and Avery.

As was made clear in Kentwell v The Queen [2014] HCA 37; 252 CLR 601, once error of the necessary type has been identified, the sentencing discretion has to be re-exercised by this Court. There the plurality (French CJ, Hayne, Bell and Keane JJ) said:

As I understand the opinion of the plurality, it does not require this Court on re-sentence to conduct a de novo sentence hearing with it being necessary for the Court to make its own specific findings of fact. This may be necessary where wrongful fact finding has been identified as one of the bases for the appeal being upheld. Where as here, no specific challenge has been made to the fact finding by his Honour, this Court in re-sentencing can accept as the basis for its re-exercise of the sentencing discretion, the facts which have been found by the sentencing judge. It, of course, remains necessary for this Court to apply to those facts “the factors that the Sentencing Act and any other Act or rule of law require or permit”.

On the issue of the objective seriousness of the offence, the following findings by the sentencing judge are relevant to the re-exercise of the sentencing discretion. The offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment. This is because s 27 of the Crimes Act requires an accused to actually have an intention to kill the victim. That maximum sentence is an important guide post when determining the seriousness of the offence. Another important consideration is the extent of the injuries suffered by the victim. These have already been summarised but involved six significant penetrating stab wounds requiring major surgery. It was only by chance that the injuries did not result in the death of the victim.

The amount of violence involved was significant and took place over a substantial period of time. The violent assault and stabbing continued after the victim had been forced to the ground. It was an aggravating factor that a weapon was used and that the attack occurred in front of the victim’s children.

His Honour rejected the explanation in the applicant’s ERISP that this was a spontaneous offence. His Honour referred to evidence which was consistent with there being a significant degree of prior planning. This included the trip to Sydney and the movement of motor vehicles at specific times. Absent other considerations, the objective seriousness of the offending was high.

There was, however, another important consideration which impacted on the applicant’s moral culpability for the offending. The applicant had suffered significant brain injuries as a result of two motor vehicles accidents, which occurred on 2 July 2005 and 25 April 2008. In each accident the brain injury was described as “severe”. The assessment by Drs Allnutt and Ashkar placed the applicant’s intellectual skills as a result of these injuries within the lowest 10 percent of the population. The applicant’s capacity to engage in complex planning and abstract reasoning was assessed as “borderline” or “extremely low”.

The applicant had in the past displayed aggressive behaviour which was found by the doctors to be due to a combination of brain injury and drug use. There was no issue that the applicant had a long history of drug abuse which pre-dated the offending behaviour and included the abuse of alcohol, cannabis, amphetamines, heroin and methylamphetamine. The applicant told both doctors that at the time of committing the offence he was in the middle of a drug binge and was highly intoxicated by ice. This part of the applicant’s history to the doctors was expressly rejected by his Honour on the basis of the observations of his mother at the time and his performance during the ERISP.

His Honour’s conclusions on this issue are important and in the absence of any challenge to them, need to be taken into account by this Court in the re-exercise of the sentencing discretion. His Honour said:

Despite the presence of brain damage, his Honour was satisfied that the applicant was aware that he was committing a serious criminal offence. The matters which his Honour took into account in reaching that conclusion were:

Specifically his Honour rejected the following propositions, which were put on behalf of the applicant:

His Honour disregarded the applicant’s criminal antecedents as an aggravating factor in that they were relatively minor. His Honour took into account the injury, emotional harm, loss and damage caused by the offence. Reference has already been made to the physical injuries. The victim also referred to significant emotional harm, anxiety and paranoia which he had suffered following the accident.

By way of mitigation, the applicant had pleaded guilty although not at the earliest point in time. His Honour allowed a 10 percent reduction for that plea of guilty. That accords with my assessment of the utilitarian value of a plea of guilty entered 10 days before trial in circumstances where there was no issue that the applicant had stabbed the victim in the way asserted.

Given the applicant’s success in his ground of appeal, the question of assistance requires closer examination. Merely because an offender is co-operative during an ERISP and makes admissions, does not of itself necessarily entitle him to a further reduction in sentence pursuant to s 23 of the Act. Under the section, whether to allow a reduction is discretionary. It is not automatic. Moreover, such co-operation and admissions relate more to the discount for a plea of guilty than what would be conventionally regarded as “assistance”.

The assistance here is the evidence in the ERISP and the statement of 17 March 2015 which was relevant to the part played by the co-accused. Such evidence would be of value in the Crown case against the co-accused and would entitle the applicant to some discount. His Honour so found.

In assessing the extent of the discount, however, other matters need to be kept in mind.

Of considerable importance was the evidence of the police officer in charge, Detective Kendle, which was that the 17 March 2015 statement was of minimal value and some assistance could be obtained by the Crown from the ERISP. He said that there was no evidence that such assistance as the applicant was prepared to give would give rise to him experiencing harsher custodial conditions, nor would it place him or his family at risk.

Taking those matters into account, I am prepared to accept that the evidence of the applicant would be of assistance in the Crown case against the co-accused, but only to a relatively minor extent. The discount which I would allow for assistance would be a total of 5 percent. I would apportion that assistance as to nil for the past and 5 percent for the future.

In relation to other mitigating matters, there was no issue that the applicant had shown some remorse and that there was some acceptance of responsibility by him. His rehabilitation prospects are not particularly good. This is because of his heavy drug use. Nevertheless, the record of his performance while in custody provides a basis for him achieving rehabilitation and not re-offending.

There were difficulties in the applicant’s childhood and background in that his father abused alcohol and drugs. There was domestic violence to which he and his mother were subjected until the marriage broke up when he was aged 10. He was aged 26 at the time of the offence and is now aged 29.

The two motor vehicle accidents have rendered him unemployable and he is currently living on the Lifetime Care and Support Scheme provided for under the Motor Accident Compensation Act 1999.

Taking those matters to which I have referred into account, having regard to his Honour’s unchallenged factual findings, and having regard to my own assessment of the documents which were before his Honour, I am of the opinion that a lesser sentence is warranted in law than that which was imposed at first instance. In imposing that sentence, I find that special circumstances do exist for the reasons identified by his Honour. The sentence which I would impose is imprisonment with a non-parole period of 6 years and a balance of term of 3 years. My principal reason for imposing a lesser sentence is that I have given substantial weight to the causal effect of the applicant’s brain damage on the offending.

Accordingly, the orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL for the reasons given by him. I consider that his Honour’s conclusions are particularly appropriate having regard to the appellant’s subjective circumstances to which his Honour has had regard.

For example, included in the material provided to this Court were medical reports from a psychiatrist Dr Stephen Allnutt dated 4 September 2013 and from a psychologist Dr Peter Ashkar dated 10 November 2014. Dr Allnutt’s report includes the following analysis:

Dr Ashkar summarised his conclusions in the following terms:

It is apparent that the somewhat curious, if not bizarre, events that constitute the offending that is the subject of this appeal cannot be divorced from the appellant’s significant mental and cognitive difficulties. The Chief Judge has properly emphasised the causal relationship between these conditions and the offending. The result is a subjective case in which the appellant’s moral culpability for what is clearly a serious offence is necessarily significantly reduced.

The appellant should be resentenced in the way proposed by the Chief Judge.

CAMPBELL J: I agree with Hoeben CJ at CL.