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District Court 16 March 2022

R v Hura

[2022] NSWDC 95

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING DAMAGE PROPERTY ROBBERY WITH AN OFFENSIVE WEAPON.

Citation: R v Hura [2022] NSWDC 95
Court: District Court of New South Wales
Date: 16 March 2022
Judge: Wilson SC DCJ

Background

The offender was sentenced for three offences arising from two separate incidents in 2019. The first two offences occurred on 17 February 2019, when the offender and a co-offender broke into a residential premises at Buff Point, knowing the occupant was inside, and subjected the victim to a sustained physical assault. Property was also damaged during that incident. The offender was a principal in the first degree for the break and enter and the assault, and shared criminal liability for property damage caused by both himself and his co-offender.

The third offence occurred on 15 June 2019. The offender attended a brothel at Long Jetty, paid for sexual services, and then returned armed with a brick, which he raised toward one of the workers in what the Crown characterised as a robbery with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW).

The offender was born in January 1998 and was aged 21 at the time of the later offence. He voluntarily presented to police in May 2020 and was ultimately arrested and charged in August 2020. He had spent only one night in custody referable to the subject offending prior to sentencing.

  • What sentence was appropriate for offences of aggravated break and enter (s 112(2), Crimes Act 1900), robbery armed with an offensive weapon (s 97(1), Crimes Act 1900), and malicious damage to property (s 195, Crimes Act 1900)?
  • Whether the totality principle supported a single aggregate sentence for the principal offences across the two incidents.
  • Whether the offender's youth, rehabilitation prospects, and personal circumstances warranted a sentence to be served by way of an Intensive Corrections Order (ICO) rather than full-time custody.

Decision

Wilson SC DCJ considered the objective seriousness of each offence alongside the offender's personal circumstances. The break and enter carried a standard non-parole period of five years and a maximum of 20 years imprisonment. The armed robbery also carried a 20-year maximum. The Court noted the significant violence involved in the February 2019 incident and the vulnerability of the victim in the brothel robbery.

Despite the seriousness of the offending, the Court placed considerable weight on the offender's youth at the time, his limited prior criminal history, his voluntary attendance at police, his cooperation, and his plea of guilty. The Court also took into account a psychological or expert report (by a Ms Hare) that identified rehabilitation prospects and recommended specific counselling and treatment.

Applying the totality principle, the Court arrived at a single three-year term of imprisonment for sequences 1 and 3, to be served in the community by way of an ICO. The Court was satisfied that, given the offender's support network (including his partner, mother, and employer) and the rehabilitative conditions attached to the order, an ICO appropriately reflected the purposes of sentencing under s 3A of the Crime (Sentencing Procedure) Act 1999 (NSW) while reducing the risk of reoffending.

Orders Made

  • A sentence of three years imprisonment imposed for sequences 1 and 3, to be served by way of an Intensive Corrections Order (ICO), commencing 16 March 2022 and expiring 15 March 2025.
  • Mandatory standard conditions: no offence to be committed during the three-year period; submission to supervision by a Community Corrections Officer.
  • Additional rehabilitation condition: the offender to provide his general practitioner with a copy of Ms Hare's report and seek referral for the counselling and treatment identified in paragraph [38] of that report, and to follow all directions and recommendations from treatment providers.
  • Abstention condition: the offender to abstain from alcohol and drugs (other than those prescribed by a medical practitioner) for the duration of the order.
  • Non-association condition: the offender not to associate with the co-offender, Mr Bottrell.
  • The offender directed to contact Wyong Community Corrections by telephone no later than 4pm on 18 March 2022.
  • The damage to property charge (sequence 2) was dealt with on a s 166 certificate in the District Court.

Key Takeaways

  • The District Court treated youth, voluntary cooperation with police, a guilty plea, and positive rehabilitation prospects as significant mitigating factors capable of supporting a non-custodial outcome even where the offending involved serious violence across multiple incidents.
  • A single aggregate ICO term can encompass separate offences arising from different incidents, provided the totality of the sentence remains proportionate to the overall criminality.
  • Under s 112(2) of the Crimes Act 1900 (NSW), awareness that a person is present in premises at the time of a break and enter constitutes the relevant aggravating feature, attracting a standard non-parole period of five years and a maximum of 20 years.
  • Robbery under s 97(1) of the Crimes Act 1900 (NSW) does not carry a standard non-parole period, leaving the sentencing court with broader discretion in calibrating the appropriate term.
  • The availability of an Intensive Corrections Order under s 7 of the Crime (Sentencing Procedure) Act 1999 (NSW) permits a court to impose conditions directly targeting rehabilitation, including treatment referrals, abstention from substances, and non-association requirements, as alternatives to full-time incarceration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 195
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7 and 66

Cases:
- R v Henry [1999] NSWCCA 111
- Harris v R [2021] NSWCCA 322