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District Court 2 August 2022

R v Hayes

[2022] NSWDC 400

Assault & violenceTheft & propertyDomestic & family violence
CRIME PROPERTY OFFENCES ENTER DWELLING VIOLENT OFFENCES STALKING OR INTIMIDATION

Citation: R v Hayes [2022] NSWDC 400
Court: District Court of New South Wales
Date: 2 August 2022
Judge(s): Bennett SC DCJ

Background

The offender, a 47-year-old man, appeared for sentencing on two charges arising from events on 5 September 2021 in Potts Point. He followed a female victim into her apartment building by tailgating her through two locked security doors, made false representations to her and a neighbour to explain his presence, and later contacted her via the building's intercom to tell her she was beautiful and invite her for a drink.

The first charge was stalking under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, carrying a maximum penalty of five years' imprisonment. The second was entering a dwelling with intent to commit a serious indictable offence (namely stalking) under section 114(1)(d) of the Crimes Act 1900, carrying a maximum of ten years. Neither offence attracted a standard non-parole period.

The offender had entered guilty pleas in the Local Court and was committed to the District Court for sentencing. He had a substantial criminal history including convictions for sexual intercourse without consent, indecent assault, and entering buildings with intent to commit indictable offences, as well as a more recent stalking conviction in 2020.

Legal Issues

  • Whether the offender intended to cause the victim to fear physical harm, mental harm, or both
  • How to assess the objective gravity of the offending conduct
  • What weight to give the offender's claim that he acted with the sole purpose of being arrested and returned to custody
  • The relevance of the offender's antecedent history to sentencing, including specific deterrence, rehabilitation prospects, and community protection
  • Whether the offender's background, including reported childhood disadvantage and a possible diagnosis of complex post-traumatic stress disorder, reduced his moral culpability
  • Whether special circumstances existed to warrant a reduction in the custodial component of the sentence based on the risk of institutionalisation
  • The appropriate aggregate sentence, including the discount for guilty pleas

Decision

Objective gravity and intent

The court found beyond reasonable doubt that the offender intended to cause the victim to fear both physical and mental harm (at [19]). His conduct was assessed as falling in the mid-range of objective seriousness, taking into account his age, the fact that the offending occurred within the victim's building in close proximity to her apartment, his use of pretence to gain entry through the locked security doors, his false representations once inside, and his subsequent intercom contact (at [23]). The court accepted that the offending was predatory and serious regardless of which motivation was attributed to it (at [25]).

Rejection of the "seeking arrest" claim

The offender advanced, through his psychologist's report, a claim that he behaved as he did in order to be caught by police and returned to jail. The court rejected this account. It was inconsistent with his failure to remain at the scene after the initial events, and with his refusal to participate in a police interview when given the opportunity (at [77]). The court found that the offender was attracted to the victim and approached her in pursuit of that interest (at [78]).

Antecedents, culpability, and community protection

The offender's extensive criminal history, including juvenile offences of a sexual nature committed at age 16 and subsequent adult convictions for sexual assault and entering buildings with intent, was considered relevant to specific deterrence, rehabilitation prospects, and community protection, but not to aggravate the objective seriousness of the current offences (at [61]). The court accepted that the offender's background of childhood disadvantage and reported complex trauma reduced his moral culpability to some degree, consistent with the principles in Bugmy v The Queen and R v Fernando, and that he might not be the most appropriate vehicle for general deterrence (at [81], [88]). However, the court found that his propensity for this conduct meant the community required protection, and that specific deterrence remained significant (at [88]).

Guilty plea discount and aggregate sentence

The offender received a 25 percent discount for the utility of his guilty pleas entered in the Local Court (at [2]). The court declined to find special circumstances warranting a reduction in the custodial component. It held that the parole period of one quarter of the aggregate sentence would provide adequate time for reintegration (at [89]). Some modest accumulation between the two counts was applied, as the stalking extended both inside and outside the building and through the intercom contact (at [87]). An aggregate sentence of four years with a non-parole period of three years was imposed, commencing from the date of arrest (at [95]-[96]).

Orders Made

  • Aggregate term of imprisonment of 4 years with a non-parole period of 3 years, commencing 5 September 2021
  • Eligible for release to parole on 4 September 2024, with the head sentence expiring on 4 September 2025
  • Indicated sentence for Count 1 (stalking): 2 years 3 months (after 25 percent guilty plea discount)
  • Indicated sentence for Count 2 (entering dwelling with intent): 3 years 9 months (after 25 percent guilty plea discount)

Key Takeaways

  • The District Court found that an offender who tailgates a victim through locked security doors using false pretences, follows her to the floor of her apartment, and later contacts her via intercom with unwanted advances, commits stalking at the mid-range of objective seriousness, even where no physical violence occurs (at [23], [25]).
  • A defendant's claim that offending conduct was motivated solely by a desire to be arrested will be scrutinised against objective evidence, including whether the defendant remained at the scene or cooperated with police; inconsistency with those facts can justify rejection of the claim (at [77]).
  • Evidence of childhood disadvantage and features consistent with complex post-traumatic stress disorder may reduce an offender's moral culpability and diminish the weight given to general deterrence, but they do not necessarily reduce the significance of specific deterrence or the need for community protection where the offending is part of a pattern of predatory conduct (at [81], [88]).
  • An offender's custodial history is a legitimate consideration in assessing specific deterrence, rehabilitation prospects, and community protection, but courts are constrained from using it to aggravate the objective seriousness of the current offences (at [61]).
  • No special circumstances arose from the risk of institutionalisation where the parole period under the aggregate sentence was found sufficient to enable community reintegration (at [89]).

Legislation and Cases Referenced

Legislation
- Children's (Detention Centres) Act 1987
- Crimes Act 1900
- Crimes (Domestic and Personal Violence) Act 2007
- Crimes Sentencing Procedure Act 1999

Cases
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Imbornone v R [2017] NSWCCA 144.
- Muldrock v R [2011] HCA 39
- R v Fernando (1992) 76 A Crim R 58
- R v Hammoud [2000] NSWCCA 540
- R v Hayes [2004] NSWCCA 156
- Tepania v R [2018] NSWCCA 247
- Veen v R (No. 2) 1988 HCA 14