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District Court 31 March 2011

R v Shayne HUBBARD

[2011] NSWDC 166

Assault & violence
CRIMINAL LAW SENTENCE PLEA OF GUILTY AT EARLIEST OPPORTUNITY VICTIM IMPACT STATEMENTS OFFENCE SPONTANEOUS AND UNPREMEDITATED PIECE OF TIMBER USED AS WEAPON

Citation: R v Shayne HUBBARD [2011] NSWDC 166
Court: District Court of New South Wales
Date: 31 March 2011
Judge(s): Cogswell SC DCJ

Background

The offender, a 46-year-old single father, attended a caravan park at Sanctuary Point on the evening of 8 February 2010 after one of his sons reported being chased away by a resident while riding through the park. Acting on that report, the offender and a companion forced their way into the caravan annexe of a 72-year-old man and assaulted him. The companion used a piece of timber on both victims throughout the evening's events.

After leaving that victim, the two men encountered a second resident outside. The offender and his companion attacked that man as well, with the companion again using the broom handle and the offender kicking and punching him to the head and body before both men fled with their children.

The offender voluntarily attended Nowra Police Station a few weeks later, co-operated with identification procedures, and was charged with two offences: aggravated break and enter and inflict actual bodily harm (relating to the first victim), and assault occasioning actual bodily harm in company (relating to the second).

  • Where the aggravated break and enter offence fell on the range of objective seriousness, for the purpose of applying the standard non-parole period as a sentencing guidepost
  • What weight to give to the guilty plea entered at the earliest opportunity
  • How to weigh mitigating factors including the unplanned nature of the offence, assistance to police, history of drug addiction, and the impact of a custodial sentence on the offender's young children
  • Whether special circumstances existed justifying an adjustment to the standard non-parole period ratio
  • Whether full-time custody was the only appropriate sentencing option

Decision

Cogswell SC DCJ accepted the submission of both the defence and the prosecution that the offence of aggravated break and enter fell below the middle of the range of objective seriousness. The injuries, while serious, were consistent with a significant bashing rather than the more extreme outcomes contemplated by the 20-year maximum, which must also accommodate offences such as home invasion involving rape or intentional wounding. The offence was also found to be spontaneous and unplanned, triggered by the report from the offender's son rather than any premeditated scheme.

The standard non-parole period of five years did not apply directly because of the early guilty plea, but the Court treated it as a guiding reference point in accordance with Court of Criminal Appeal authority. The plea, the offender's co-operation with police, and the delay between the offences and sentencing proceedings were all accepted as mitigating factors. Psychological and pre-sentence reports were before the Court, and the offender's history of drug addiction was noted as relevant background.

Despite significant mitigating features, the Court concluded that full-time custody was the only appropriate sentence. The offender carried an extensive criminal history. The Court acknowledged the impact that imprisonment would have on his young sons but found that factor could not displace a custodial sentence given the seriousness of the offences. Special circumstances were found to exist, justifying a longer parole period than the statutory norm, so that supervision in the community could support the offender's rehabilitation and his parenting responsibilities.

The sentence for the assault on the second victim was ordered to commence first, with the sentence for the more serious break and enter charge commencing one month later to reflect the need for separate punishment for each crime while incorporating a degree of concurrency.

Orders Made

  • Second charge (assault occasioning actual bodily harm in company): 6 months imprisonment, commencing 31 March 2011 and expiring 30 September 2011
  • First charge (aggravated break and enter and inflict actual bodily harm): 3 years imprisonment, commencing 30 April 2011 and expiring 29 April 2014
  • Non-parole period for the first charge: 7 months and 25 days, commencing 30 April 2011 and expiring 24 December 2011
  • Release on parole ordered on 24 December 2011, subject to three conditions: good behaviour, compliance with any court notices, and notification of any change of residential address to the Court Registry and the Parole Authority

Key Takeaways

  • The District Court confirmed that where a standard non-parole period applies to an offence, it remains a relevant guiding reference in sentencing even where the offender has pleaded guilty and the standard non-parole period is therefore not directly operative.
  • A conviction for aggravated break and enter under s 112(2) of the Crimes Act 1900 carries a maximum of 20 years imprisonment and a standard non-parole period of five years; assault occasioning actual bodily harm in company under s 59(2) carries a maximum of seven years with no standard non-parole period.
  • Where an assault arises spontaneously from an immediate provocation rather than premeditation, that unplanned character is relevant to the assessment of objective seriousness, though it does not preclude a custodial sentence.
  • The impact of full-time custody on the offender's dependent children was acknowledged as a legitimate sentencing consideration, but it did not override the need for imprisonment given the nature of the offences and the offender's criminal history.
  • Finding special circumstances justified departing from the standard non-parole ratio, allowing for an extended parole period to support rehabilitation and the offender's ongoing parental responsibilities upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm in company)
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence)

Cases:
No specific cases were cited by name in the judgment text. The Court referenced the general principle established by the Court of Criminal Appeal that standard non-parole periods serve as a guidepost in sentencing even where a guilty plea renders them inapplicable directly.