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District Court 12 May 2020

R v Hardes

[2020] NSWDC 191

Assault & violenceDrugsTheft & propertyFirearms & weapons
SENTENCING REASONS FOR JUDGMENT USE OF KNIFE BY CO OFFENDER OFFENDER IN JOINT CRIMINAL ENTERPRISE ROLE OF OFFENDER IN DRUG SUPPLY

Citation: R v Hardes [2020] NSWDC 191
Court: District Court of New South Wales
Date: 12 May 2020
Judge(s): O'Brien AM DCJ

Background

The offender was sentenced on four offences arising from two separate incidents in the Nowra area. The first incident, on 11 June 2017, involved the offender and a co-offender entering a victim's home armed with firearms with the intention of robbing him of drugs. During the incident, the victim was wounded in circumstances that resulted in a conviction for wounding with intent to cause grievous bodily harm.

The co-offender, Benjamin Hand, had already been sentenced separately after pleading guilty at an early stage to these and two additional counts. The offender, by contrast, pleaded guilty to the home invasion count only after a jury had been empanelled, and was found guilty of the wounding count by a jury following a two-week trial. He was acquitted on the two remaining counts at trial.

The second matter involved a separate offence of supplying methylamphetamine in a quantity greater than the indictable amount, occurring four days before the home invasion on 7 June 2017. The offender had pleaded guilty to that count in the Local Court at an earlier stage.

  • How should the objective seriousness of each offence be assessed, including where a co-offender personally used the knife or firearm?
  • What discount applied to each plea of guilty, given the different timing of those pleas?
  • What weight should be given to the offender's mental health history, disadvantaged background, and methamphetamine use as subjective mitigating factors?
  • How should parity principles operate where the co-offender received a different sentence and benefited from a significantly larger utilitarian plea discount?
  • How should the principle of totality be applied when imposing an aggregate sentence across multiple offences?
  • Were there special circumstances justifying a departure from the standard non-parole period ratio?

Decision

Objective seriousness and plea discounts: The court assessed the objective seriousness of the home invasion (count 1) as approximately equal for both the offender and the co-offender, noting both were armed and acting in concert. However, for the wounding offence (count 2), the court assessed the offender's culpability as lower than that of the co-offender, because it was the co-offender who physically used a knife on the victim. Given the late timing of the guilty plea to count 1 (entered after jury empanelment), only a 10% utilitarian discount applied to that count. No discount applied to count 2, which was the subject of a jury verdict. The drug supply count attracted a 25% discount for the early Local Court plea.

Subjective factors and mental health: The court gave weight to the offender's compromised mental health and disadvantaged background in moderating the sentence. These factors were considered as part of the overall instinctive synthesis, alongside the need to protect the community.

Parity: The court examined the sentences imposed on the co-offender Hand and applied parity principles. Because Hand received a larger utilitarian discount and had also pleaded guilty to two additional counts of which this offender was acquitted, numerical parity was not straightforwardly achievable. The court found that the differing subjective cases, including the offender's mental health, justified a sentence somewhat below what strict numerical parity with the co-offender would otherwise produce.

Totality and aggregate sentence: Applying the totality principle to prevent a crushing outcome, and accounting for special circumstances including a history of mental illness and the risk of institutionalisation, the court imposed an aggregate sentence with a longer-than-standard supervision period on parole. The related offence of carrying a cutting weapon was dealt with by recording a conviction with no further penalty.

Orders Made

  • The offender was convicted on counts 1, 2, and 3.
  • Pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999, the offender was sentenced to an aggregate term of imprisonment comprising a total term of 7 years with a non-parole period of 4 years and 6 months, commencing 18 October 2017.
  • The offender was eligible for release on parole on 17 April 2022.
  • The sentence was set to expire on 17 October 2024.
  • In respect of the related offence of carrying a cutting weapon, the offender was convicted pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.

Key Takeaways

  • Where co-offenders participate in a joint criminal enterprise at different levels, the sentencing court will distinguish their respective objective culpability, particularly where one co-offender personally committed acts of violence that the other did not.
  • Parity principles do not require identical sentences between co-offenders. Differences in the timing of pleas, the counts to which each co-offender pleaded guilty, and differing subjective circumstances each justify departure from numerical equivalence.
  • A history of mental illness and social disadvantage, including drug dependence linked to methamphetamine, can constitute relevant subjective mitigating factors in the instinctive synthesis process, without displacing the need to protect the community.
  • Under the aggregate sentencing regime in section 53A of the Crimes (Sentencing Procedure) Act 1999, the totality principle remains central: the overall sentence must not be disproportionate to the totality of the offending.
  • Special circumstances, including risk of institutionalisation, can justify extending the parole supervision period beyond the statutory default, resulting in a non-parole period that represents a lower proportion of the total term than would ordinarily apply.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 111(3), 547D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A, 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Fahs v R [2007] NSWCCA 26
- Jackson v R [2010] NSWCCA 162
- Johnson v R, Moody v R [2010] NSWCCA 124
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Dickinson [2004] NSWCCA 457
- R v MacDonell (2002) 128 A Crim R 44
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Morabito (1992) 62 A Crim R 82
- R v Parente [2017] NSWCCA 284
- R v Watt (unrep, 2/4/97, NSWCCA)
- Williams v R [2010] NSWCCA 15
- Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64