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District Court 1 July 2022

R v Hawes

[2022] NSWDC 726

Assault & violenceTheft & propertyFirearms & weapons
CRIME ARMED WITH AN OFFENCE WEAPON SENTENCING RELEVANT FACTORS ON SENTENCE IN COMPANY JOINT CRIMINAL ENTERPRISE

Citation: R v Hawes [2022] NSWDC 726
Court: District Court of New South Wales
Date: 1 July 2022
Judge: Haesler SC DCJ

Background

The offender, a young Palawa man from Western Sydney with a significant criminal history dating from age thirteen, pleaded guilty to aggravated break and enter and committing a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of twenty years' imprisonment and a standard non-parole period of five years.

At 7am on 25 May 2021, the offender and a co-offender entered a Wollongong guesthouse for low-income residents. They confronted the caretaker, who both lived and worked on the premises. The co-offender produced a knife and made repeated threats to stab the victim. The offender also verbally referenced having a knife. The victim handed over his wallet, from which the co-offenders took $6,000, including $4,000 belonging to tenants. The offender did attempt, on more than one occasion, to direct his co-offender to put the knife away, and the victim turned to the offender to exercise some control over the situation.

The offender was on bail for a breach of an apprehended violence order at the time of the offence. He was arrested days later, identified through CCTV footage, distinctive tattoos, and DNA and fingerprint matches. After being granted Supreme Court bail to address a stroke and long-term drug addiction, he committed further offences and was re-sentenced in the Local Court to sixteen months' imprisonment. His bail for the present matter was subsequently revoked.

  • What was the appropriate sentence for an aggravated armed break and enter committed in company, with a knife used to threaten the victim?
  • How should the guideline judgments in Henry (armed robbery) and Ponfield (break and enter) inform the exercise of sentencing discretion?
  • What weight should be given to the offender's background of deprivation, autism spectrum disorder, institutionalisation, health issues, and Indigeneity under the principles in Bugmy and Fernando?
  • Was remorse established, and what discount applied for the early guilty plea?
  • How should the principle of totality operate given the co-existing Local Court sentence?
  • Did special circumstances exist justifying a departure from the standard ratio between non-parole period and head sentence?

Decision

His Honour accepted that the offence was a serious example of its type. The crime was planned, occurred in the victim's home and workplace, involved sustained threats with a knife, and targeted a person providing a service to vulnerable low-income residents. Although the break-in itself was less serious than many comparable cases, and the offender made some effort to de-escalate the co-offender's knife threats, the overall objective seriousness was significant. The offence was also committed while the offender was on conditional liberty.

On the subjective case, His Honour accepted the findings of a forensic psychologist that the offender was diagnosed with autism spectrum disorder from a young age, which materially impaired his capacity to regulate behaviour and emotions. His background included family breakdown, early exposure to criminal peers, and chronic drug addiction. These matters were relevant under the principles in Bugmy and Fernando, recognising that the effects of profound disadvantage do not diminish over time. His Honour noted, however, that the offender was institutionalised and had accumulated misconduct matters in custody.

His Honour declined to find remorse established. The forensic psychologist's characterisation of the offender as "extremely remorseful" was not supported by the evidence before the court. What the offender demonstrated was regret about his own drug problem, not any apparent understanding of the harm caused to the victim. The 25% discount for the early guilty plea was nonetheless applied, reducing the otherwise appropriate sentence of four and a half years to three years and four months.

The principle of totality was applied to structure the sentence in combination with the existing Local Court sentence. A finding of special circumstances was made, resulting in a non-parole period proportionally shorter than the statutory default, to allow for an extended period of supervised parole and to facilitate rehabilitation. His Honour recommended release to a residential rehabilitation facility, subject to the State Parole Authority's assessment and the offender's conduct in custody.

Orders Made

  • Convicted of aggravated break and enter and committing a serious indictable offence (larceny) under s 112(2) Crimes Act 1900.
  • Head sentence of three years and four months' imprisonment, commencing 31 December 2021 (after four months of the Local Court sentence had been served).
  • Non-parole period of one year and ten months, commencing 31 December 2021, with earliest possible release date of 30 October 2023.
  • Balance of sentence: one year and six months, commencing 31 October (year unspecified in orders, consistent with the structure described).
  • Finding of special circumstances made.
  • 84 days of pre-bail custody taken into account.
  • Totality principle applied.
  • Copies of the forensic psychologist's report (Ms Edwige) and Dr Freelander's report to accompany the warrant.
  • Recommendation for release to a residential rehabilitation centre, subject to availability and the State Parole Authority's determination.

Key Takeaways

  • The District Court confirmed that guideline judgments such as Henry and Ponfield are guides to sentencing discretion, not binding constraints. Every offender and offence must be assessed individually on both objective and subjective factors.
  • Under the principles in Bugmy and Fernando, evidence of childhood disadvantage, cultural dislocation, neurodevelopmental disorder, and entrenched drug addiction remains relevant to sentence even for an offender with an extensive prior record. These factors do not diminish in weight simply because the offending is repeated.
  • A forensic psychologist's characterisation of an offender as remorseful does not, by itself, establish remorse as a mitigating factor. The sentencing court must be satisfied that the offender demonstrates genuine understanding of the harm caused to the victim, not merely regret about personal consequences.
  • Where an offender is serving a concurrent sentence and special circumstances are found, a proportionally extended parole period can be structured to support rehabilitation, with the State Parole Authority retaining ultimate discretion over release.
  • An early guilty plea attracts a 25% reduction even where other mitigating factors are limited, reflecting the utilitarian value of the plea irrespective of whether remorse is separately established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Fernando v R (1992) 76 A Crim R 58
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Jackson v R [2010] NSWCCA 162
- Jinnette v R [2012] NSWCCA 217
- Moodie v R [2020] NSWCCA 160
- Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Millwood [2012] NSWCCA 2