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District Court 16 December 2022

R v Hooper

[2022] NSWDC 703

Assault & violenceDrugsTheft & propertyFirearms & weapons

Citation: R v Hooper [2022] NSWDC 703
Court: District Court of New South Wales
Date: 16 December 2022
Judge: Bennett SC DCJ

Background

The offender, Jamie Hooper, was sentenced for a series of offences committed between October 2019 and January 2020. The offences fell into three broad categories: a home invasion, multiple firearms offences, and a large commercial drug supply.

The home invasion occurred on 17 November 2019 at a residential property in Bankstown. The offender and a co-offender attended the victim's home, where she lived with her husband and their ten-year-old son. The offender kicked open the front door and entered the premises while holding a firearm and wearing a mask described by the victim as frightening. The offence was charged as break, enter and commit a serious indictable offence in circumstances of special aggravation, namely being armed with a dangerous weapon and being in company.

On 29 January 2020, police located two firearms at a Riverwood address: a shortened Winchester rifle and a Ruger pistol. The offender was subject to a Firearms Prohibition Order at the time. He was also found in possession of a substantial quantity of ammunition spanning multiple calibres. The drug supply offence involved MDMA at not less than a large commercial quantity, supplied between October and December 2019 at McMahons Point.

  • What discount applied to the pleas of guilty, given they were entered at different stages of the proceedings?
  • How should the principle of totality govern the imposition of an aggregate sentence across a large number of serious offences?
  • What weight should be given to standard non-parole periods for the relevant offences?
  • What were the appropriate indicative sentences for each individual offence, and how should they be structured into a single aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999?

Decision

The District Court applied differentiated guilty plea discounts. For the home invasion offence, the plea was entered at arraignment on 13 September 2022, attracting a discount of only 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999. All remaining offences, including the two related offences dealt with by admission under s 166 of the Criminal Procedure Act 1986, attracted a 25% discount, reflecting the earlier timing and utility of those pleas.

The Court took into account the offender's pre-sentence custody from his arrest on 29 January 2020, directing that the aggregate sentence be back-dated to commence on that date. The sentencing judge worked through each offence individually before imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, applying the principle of totality to ensure the combined sentence reflected the overall criminality without being crushing.

For the home invasion, the Court treated the standard non-parole period of seven years as a relevant guidepost in accordance with Muldrock v The Queen [2011] HCA 39. The supply of a large commercial quantity of MDMA carries a maximum sentence of life imprisonment and a standard non-parole period of 15 years, reflecting the particular seriousness Parliament attaches to trafficking at that level.

The Court then aggregated the individual indicative sentences into a single term. The resulting aggregate sentence was 12 years with a non-parole period of 8 years, commencing 29 January 2020. The offender becomes eligible for parole on 28 January 2028, with the head sentence expiring on 28 January 2032.

Orders Made

  • Aggregate sentence of 12 years' imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of 8 years, commencing 29 January 2020
  • Eligible for release to parole on 28 January 2028
  • Head sentence to expire on 28 January 2032
  • Indicative sentences specified for each individual offence as follows:
  • Sequence 12 (home invasion): 9 years 6 months, with a non-parole period of 5 years 4 months
  • Sequence 3 (possession of Winchester rifle in contravention of Firearms Prohibition Order): 5 years 3 months
  • Sequence 4 (possession of ammunition): 2 years 6 months
  • Sequence 6 (unlicensed Ruger pistol): 4 years 9 months, with a non-parole period of 3 years
  • Sequence 7 (prohibited shortened Winchester rifle): 4 years 9 months, with a non-parole period of 3 years
  • Sequence 19 (Ruger pistol in contravention of Firearms Prohibition Order): 5 years 3 months
  • Sequences 8 and 14 (failing to keep firearms safely): 1 year each
  • Sequence 1 (supply large commercial quantity of MDMA): 4 years 6 months, with a non-parole period of 2 years 9 months
  • Liberty to apply reserved in relation to possible confiscation proceedings
  • Exhibits to remain on file for such period as the parties require

Key Takeaways

  • The timing of a guilty plea directly affects the discount available: a plea entered at arraignment attracts only a 5% discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, compared to 25% where the plea is entered at an earlier stage.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a court imposing an aggregate sentence must still specify indicative sentences for each offence, allowing for review and transparency in the overall sentencing exercise.
  • Standard non-parole periods function as statutory guideposts rather than fixed starting points, consistent with Muldrock v The Queen [2011] HCA 39; the sentencing court weighs them alongside all other relevant factors.
  • Where related offences are admitted under s 166 of the Criminal Procedure Act 1986, the sentencing court applies the same approach to guilty plea discounts as for other matters resolved early, consistent with R v Robert Borkowski [2009] NSWCCA 102.
  • Possession of prohibited firearms in contravention of a Firearms Prohibition Order, combined with aggravated home invasion and large commercial drug supply, can produce an aggregate sentence well into the double digits even after applying totality, given the number and seriousness of the individual offences involved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(1), (2), (3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(a) and (c), 53A, Part 4 Div. 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 39(1)(a), 74(1), 74(3)
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37
- Imbornone v R [2017] NSWCCA 144
- Lloyd v R [2022] NSWCCA 18
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Henry et al [1999] NSWCCA 111
- R v Olbrich [1988] HCA 54
- R v Qutami [2001] NSWCCA 353
- R v Robert Borkowski [2009] NSWCCA 102
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14