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District Court 26 September 2013

R v Hona

[2013] NSWDC 300

Theft & property
CRIMINAL LAW SENTENCE ATTEMPT TO ENTER DWELLING HOUSE AGGRAVATION IN COMPANY PERSON INSIDE

Citation: R v Hona [2013] NSWDC 300
Court: NSW District Court
Date: 26 September 2013
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to attempting to enter a dwelling with intent, in circumstances of aggravation. Two aggravating circumstances were present: the offender acted in company, and he knew a person was inside the premises at the time.

The offence occurred when the offender, seeking money to purchase heroin, attended the victim's home unit block early on a Sunday morning. After the victim declined to provide money on a first visit, the offender returned with his partner, who knocked at the front door as a decoy while the offender climbed up the outside of the building to a third-storey lounge room window and attempted to slide it open.

The victim heard sounds from the lounge room, went to investigate, and closed the window as the offender was attempting to enter. The offender lost his balance, fell three storeys onto concrete, and sustained a head laceration and a broken leg. He was hospitalised for approximately two weeks and spent roughly four months in custody before being granted bail.

  • What was the appropriate sentence for an offence of aggravated attempted entry to a dwelling, having regard to the objective gravity of the conduct and the offender's personal circumstances?
  • What weight should be given to an adverse psychological assessment predicting a high probability of reoffending?
  • Whether the Crown could rely on the parity principle to argue for a higher sentence by reference to the co-offender's sentence.
  • Whether the offender's fall and resulting injuries constituted a form of extra-judicial punishment to be taken into account in sentencing.

Decision

Berman SC DCJ assessed the objective gravity of the offence as lying toward the lower end of the range for this category. The aggravating circumstances, while present, were described as not the most serious of their kind. The plan was for the offender to enter and exit undetected, with the intent to commit larceny, an offence carrying a maximum penalty of five years. There was no intention to confront or threaten the victim.

The court accepted that the offender's fall and consequent hospitalisation, pain, and residual disability constituted a form of extra-judicial punishment that should be taken into account in mitigation. A 25 per cent discount was applied to reflect the early guilty plea.

The court rejected the Crown's attempt to invoke the parity principle to argue for a higher sentence. Berman SC DCJ confirmed, by reference to the Court of Criminal Appeal's decision in Delaney v R; R v Delaney [2013] NSWCCA 150, that parity operates only in favour of an offender, never in favour of the Crown. The sentence imposed on the co-offender was therefore irrelevant for the Crown's purposes.

Although a psychological assessment identified a high risk of future offending, the court chose to address that risk not by increasing the sentence for deterrence, but by suspending the 18-month imprisonment term and attaching detailed conditions. The court took into account the offender's difficult upbringing, his drug dependency, his six children, and the support available to him through church and community organisations.

Orders Made

  • The offender was sentenced to 18 months' imprisonment.
  • Execution of the sentence was suspended on the offender entering into a good behaviour bond for the same period.
  • Bond conditions included:
  • Being of good behaviour throughout the bond period.
  • Refraining from any act of violence, whether within or outside the family.
  • Using no illegal drugs.
  • Accepting assistance from the Moree Presbyterian Church and Australian Indigenous Ministries and following their guidance.
  • Submitting to supervision by the Probation and Parole Service and complying with all directions, including participation in rehabilitation programs, anger management courses, and relationship counselling.
  • Appearing before the court if called upon.
  • Notifying the court of any change of residential address.

Key Takeaways

  • The District Court confirmed that the parity principle operates only in favour of a co-offender seeking to reduce a sentence, and cannot be invoked by the Crown to push for a higher sentence by reference to what a co-offender received. This point was reinforced by reference to Delaney v R; R v Delaney [2013] NSWCCA 150.
  • Physical injury suffered by an offender in the course of committing an offence, described by the court as "extra-judicial punishment," can be taken into account as a mitigating factor in sentencing.
  • An adverse psychological assessment predicting high reoffending risk does not automatically produce a longer custodial sentence. In this instance, the court instead addressed that risk through the structure and conditions of a suspended sentence.
  • Where aggravating circumstances are present but reflect the less serious end of the spectrum for that category, such as where confrontation with the victim was not intended, the court will calibrate the objective gravity of the offence accordingly.
  • A significant community and church support network, combined with an early guilty plea and a difficult personal history, can together support a non-custodial outcome even where psychological evidence raises concerns about rehabilitation.

Legislation and Cases Referenced

Cases:
- Delaney v R; R v Delaney [2013] NSWCCA 150 (on the parity principle)

Legislation:
- No specific legislation was cited in the judgment, though the decision references a "s 11 remand" (a procedural adjournment for rehabilitation assessment under the Crimes (Sentencing Procedure) Act 1999 (NSW)) and the maximum penalty applicable to larceny.