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District Court 13 February 2009

R v Hartnett

[2009] NSWDC 426

Assault & violenceTheft & property
CRIME SENTENCING MALICIOUSLY INFLICT ACTUAL BODILY HARM

Citation: R v Hartnett [2009] NSWDC 426
Court: District Court of New South Wales
Date: 13 February 2009
Judge(s): Norrish QC DCJ

Background

In the early hours of 13 January 2008, the offender entered a family home in Glenfield Park, Wagga Wagga without any lawful right to do so. The householder, who had just changed his three-day-old baby's nappy, discovered the offender in the kitchen and a physical struggle ensued. A second unidentified male was present on the patio outside.

During the struggle, the offender threw a dining chair at the householder. The householder suffered bruising, a nosebleed, and neck tenderness. His wife, who had undergone a caesarean section only three days earlier, was so distressed that she required hospital treatment.

The offender was identified by a palm print left on the exterior window and was arrested at Nyngan on 17 May 2008 in connection with a separate matter. He pleaded guilty to break and enter in circumstances of aggravation, specifically that he maliciously inflicted actual bodily harm on the householder. He had been in custody since the date of his arrest.

  • What sentence was appropriate for an offence of break and enter in circumstances of aggravation, carrying a maximum of 20 years imprisonment and a standard non-parole period of five years?
  • What discount was warranted for an early guilty plea entered at the first reasonable opportunity?
  • Whether special circumstances existed justifying a variation of the standard ratio between the non-parole period and the total sentence.
  • How the court should assess the objective seriousness of the offence in light of the offender's apparent purpose, intoxication, and the reactive nature of the physical altercation.

Decision

Norrish QC DCJ determined that the appropriate starting sentence, before any discount, was five years imprisonment. The offender received a 25 percent discount for his early guilty plea, entered first at the Local Court and again at the District Court, reflecting the utilitarian value of that plea. This reduced the effective sentence accordingly.

The court assessed the objective seriousness of the offence as significant but acknowledged several contextual matters. The offender did not enter the premises to assault anyone, the break-in appeared entirely unplanned and opportunistic, and the physical contact arose from a struggle initiated by the householder defending his family. The court made clear that no criticism attached to the householder, who was entirely entitled to take immediate protective action.

Personal circumstances weighed in the offender's favour to a degree. The court accepted that the offender was affected by alcohol and drugs at the time, which clouded his judgment. His difficult background, including a history of substance abuse, disadvantaged upbringing, and limited employment opportunities in regional New South Wales, was noted. The court also found his expressions of remorse to be genuine and treated contrition as a mitigating factor.

A finding of special circumstances was made, departing from the standard ratio between non-parole period and balance of sentence. This was warranted given the need for an extended period of supervision on parole, in light of the offender's background and the rehabilitation challenges he faced.

Orders Made

  • The offender was convicted of break and enter in circumstances of aggravation (maliciously inflicting actual bodily harm).
  • Sentenced to a total term of imprisonment of three years and nine months.
  • Non-parole period of one year and six months, commencing 17 May 2009 and expiring 16 November 2010.
  • Balance of sentence of two years and three months, expiring 16 February 2013.
  • Finding of special circumstances made.

Key Takeaways

  • A 25 percent discount for a guilty plea entered at the first reasonable opportunity was applied, consistent with the principle in R v Thomson and Houlton, reducing what the court regarded as a five-year starting point.
  • Where a physical altercation arises after an intruder is discovered and confronted by a householder acting defensively, the sentencing court may still hold the intruder fully responsible for injury caused, even if that intruder did not enter with any intent to assault.
  • Special circumstances were established on the basis that the offender's rehabilitative needs and personal background required a longer than standard period of post-release supervision.
  • The District Court treated genuine contrition and remorse as a mitigating factor where the court was satisfied the expression was authentic.
  • Intoxication by alcohol and drugs at the time of the offence was accepted as a factor clouding the offender's judgment, though it did not diminish his criminal responsibility for the break and enter or the harm caused.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383)
- The Queen v Way (2004) NSWCCA 131
- R v Anderson [2008] NSWCCA 211
- R v MLP [2006] NSWCCA 271
- R v AJP [2004] NSWCCA 434
- Pearce v The Queen (1998) 194 CLR 610
- R v Holder (1983) 3 NSWLR 245