Citation: R v David Hanna [2014] NSWDC 234
Court: NSW District Court
Date: 12 December 2014
Judge: Mahony SC DCJ
Background
Following a joint trial, the offender was convicted on 1 October 2014 of two serious offences arising from an incident on 21 June 2013 at Prospect, NSW. He and a co-accused confronted a victim who had been providing a driving service to the co-accused. The offender physically assaulted the victim with fists, head butts, kicks and knees, before the pair took the victim's Holden Commodore and drove it away. The victim was also robbed of approximately $300 cash and a bank key card during the incident.
The offender was born in October 1974 and had a lengthy criminal history dating back to 2002, including prior offences involving demands with menaces, firearms, prohibited drugs, and prior terms of imprisonment. At the time of the offending he was on bail awaiting sentence on three separate matters. A related offence of dishonestly obtaining a financial advantage by tendering the stolen key card was also dealt with at sentencing by way of a certificate under s 166 of the Criminal Procedure Act 1986.
The sentence hearing took place on 14 November 2014. Psychological evidence, character references, and a victim impact statement were all placed before the Court.
Legal Issues
- What objective seriousness attached to each offence, given the violent and planned nature of the joint criminal enterprise?
- How should the offender's substantial criminal history and the fact he offended while on bail be weighed in sentencing?
- What weight, if any, should be given to the offender's subjective circumstances, including his drug history, family ties, and limited assistance to authorities?
- How should the principle of totality be applied when imposing sentences for two separate but related serious offences?
- Whether any special circumstances justified departing from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1998?
Decision
His Honour found that both offences were objectively serious. Count 1 (assault with intent to take a motor vehicle in company, under s 154C(2) of the Crimes Act 1900, maximum 14 years, standard non-parole period of 5 years) and Count 3 (robbery with corporal violence under s 95(1), maximum 20 years) involved planned, sustained violence against a vulnerable victim who had no reason to anticipate the attack. The offender was found to have played an active and leading role, being the person who initiated the physical assault.
The offender's subjective case attracted limited weight. The psychological report was undermined by the offender's own admissions: he had told the psychologist that having a child had changed his attitude to offending, but acknowledged under closer questioning that his son was already over 12 months old when the offences were committed. His Honour also noted that the offender had minimised his conduct to the psychologist by admitting only to being "angry and intimidating" without disclosing that he had beaten the victim. The Crown's submission that the offender showed no substantial remorse or genuine acceptance of responsibility was accepted.
A small discount was applied for assistance the offender had provided to investigating authorities, the details of which were kept confidential. Offending on bail was treated as a significant aggravating factor. Applying the principle of totality (which requires the sentencing court to ensure the overall sentence is proportionate to the overall criminality, rather than simply adding sentences together), His Honour accumulated the sentences to a degree while ensuring the total reflected the full extent of the offending.
His Honour did not find special circumstances sufficient to justify any further variation to the standard non-parole period ratio for Count 1, though the structure of the sentences reflects the operation of concurrency across the lesser matters.
Orders Made
- Count 1 (assault with intent to take motor vehicle in company): Convicted and sentenced to a total term of 3 years imprisonment, comprising a non-parole period of 2 years and 3 months (1 October 2014 to 31 December 2016) and a further term of 9 months (1 January 2017 to 30 September 2017).
- Count 3 (robbery with corporal violence): Convicted and sentenced to a fixed term of 12 months imprisonment commencing 12 December 2014 and expiring 11 December 2015, to be served concurrently with the above sentence.
- s 166 Certificate offence (dishonestly obtaining financial advantage): Sentenced to a fixed term of 3 months imprisonment commencing 12 December 2014 and expiring 11 March 2015, to be served concurrently with the above sentences.
- Parole eligibility date: 31 December 2016.
Key Takeaways
- Offending on bail is a significant statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1998, and its presence in this matter weighed heavily against the offender at sentencing.
- A psychological report that is internally inconsistent, or that the offender has not been fully candid with, will attract reduced weight when assessing remorse and prospects of rehabilitation.
- Where two charges arise from a single continuous episode but each involves distinct and substantial criminality, the principle of totality requires some accumulation of sentences rather than full concurrency, to ensure the overall penalty reflects the full gravity of the conduct.
- Active participation in a joint criminal enterprise, particularly where the offender initiates the violence, is treated as a serious aggravating circumstance even where a co-accused is also prosecuted for the same events.
- Under s 154C(2) of the Crimes Act 1900, assault with intent to take a motor vehicle in company carries a maximum of 14 years imprisonment and a standard non-parole period of 5 years, reflecting the legislature's view of the seriousness of this category of offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 95(1), 154C(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1998 (NSW)
Cases:
- Cahadi v R (2007) 168 ACrimR 41
- Pearce v The Queen (1998) 194 CLR 610
- R v Black [2001] NSWCCA 41
- Sheather v R [2009] NSWCCA 173
- Veen v R (No 2) (1988) 164 CLR 465