Citation: R v Kaine Hubbard [2007] NSWDC 156
Court: District Court of New South Wales
Date: 8 June 2007
Judge(s): Nicholson SC DCJ
Background
The offender, a 24-year-old Indigenous man with a prior history of violence-related offences and multiple periods of imprisonment, was sentenced for assault occasioning actual bodily harm in company. The assault occurred on 13 August 2005, only eight days after the offender had been released from custody, during a period of heavy alcohol consumption.
The offence involved the offender and a co-offender approaching a 15-year-old boy on the street under a pretence of borrowing his phone. What began as an apparently friendly interaction escalated into a sustained attack. The victim was punched repeatedly to the face and kicked while curled on the ground, sustaining a bruised and swollen left eye, a swollen nose, and bleeding within the eye itself.
Notably, police did not arrest the offender until 17 months after the assault, by which time he had made significant efforts to address his alcohol dependency and stabilise his life. He had been in custody on remand since his arrest in early 2007 and appeared before the court for sentencing on 4 and 8 June 2007.
Legal Issues
- The appropriate sentence for an offence of assault occasioning actual bodily harm in company, committed by a recidivist offender with multiple prior custodial terms for alcohol-fuelled violence
- Whether the sentence of imprisonment could be suspended, having regard to the offender's genuine rehabilitation efforts during the 17-month period between offending and arrest
- Whether a section 11 bail adjournment under the Crimes (Sentencing Procedure) Act 1999 was an appropriate mechanism to assess the offender's capacity to rehabilitate before final sentence was imposed
- Parity of sentence with the co-offender
Decision
The court described the objective seriousness of the offence in strong terms. The victim was alone, outnumbered, and vulnerable. The violence was sustained and apparently unprovoked beyond any rational basis, with the offender himself uncertain why it escalated. The court accepted the offender was heavily intoxicated at the time, but treated that as a significant aggravating feature given his well-documented pattern of alcohol-fuelled offending.
On subjective matters, the court acknowledged the 17-month delay between offending and arrest as highly significant. During that interval, the offender had independently addressed his substance abuse, engaged with an employment support programme, and achieved one of the most stable periods of his adult life. The court accepted this as genuine rehabilitation, supported by strong family and community ties.
Nicholson SC DCJ found that imprisonment was the appropriate sentencing disposition but considered the question of whether that sentence could be suspended. Rather than proceed immediately to final sentence, the court used section 11 of the Crimes (Sentencing Procedure) Act 1999 to grant bail for 12 months, adjourning the matter to November 2007. The purpose of the adjournment was expressly to assess whether the offender's demonstrated rehabilitation could be sustained under structured supervision.
The court was candid that the decision to grant section 11 bail was fortified only by the evidence of the offender's prior rehabilitation efforts and community support. The court made clear that any failure to comply with the detailed conditions would result in the offender returning to custody.
Orders Made
- Section 11 bail granted for 12 months for the purpose of assessing the offender's capacity to rehabilitate, subject to the following conditions:
- Full supervision by Probation and Parole, reporting to the Taree office
- Compliance with all reasonable directions from his case manager
- Participation in all treatment, programmes, and counselling directed by Probation and Parole, specifically alcohol, drug abuse, and anger management
- Enrolment in a personal support programme by 15 June 2007
- Complete abstinence from alcohol and unprescribed drugs throughout the adjournment
- Active efforts to obtain and maintain long-term employment
- Random urine analysis four times per month; any failure to submit or any positive result constitutes a breach
- Submission to random alcohol testing as required
- Probation and Parole to notify the court within 48 hours of any breach
- Matter adjourned to 2 November 2007
Key Takeaways
- The District Court treated the 17-month delay between the offence and arrest as a significant mitigating factor, where that period had been used productively by the offender to address the root causes of his offending.
- A section 11 adjournment under the Crimes (Sentencing Procedure) Act 1999 can function as a structured mechanism to test an offender's rehabilitation prospects before final sentence is imposed, even where the court has formed the view that imprisonment is otherwise warranted.
- Genuine, self-directed rehabilitation efforts, supported by strong family and community ties, can be sufficient to displace an otherwise likely immediate custodial sentence, at least at the interim sentencing stage.
- Where section 11 bail is granted for rehabilitation assessment purposes, the conditions imposed can be highly detailed and prescriptive, including mandatory supervision, substance testing, programme enrolment, and rapid breach reporting obligations.
- Recidivism and offending committed within days of release from custody are treated as serious aggravating factors, and the court made plain that any regression would result in the offender returning to custody.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases cited: None cited in the judgment text or metadata.