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District Court 11 May 2023

R v Hoskin

[2023] NSWDC 150

DrugsFraud & dishonestyTheft & property
FRAUD POSSESS WITH IDENTIFICATION INFORMATION

Citation: R v Hoskin [2023] NSWDC 150
Court: District Court of New South Wales
Date: 11 May 2023
Judge: Scotting DCJ

Background

The offender, a 34-year-old Indigenous man, appeared for sentencing after pleading guilty in the Local Court to four offences: supply of a prohibited drug (methylamphetamine) not less than a commercial quantity, supply of a prohibited drug (gamma butyrolactone) not less than an indictable quantity, possession of identification information with intent to commit fraud, and aggravated entry of a dwelling house with intent to commit larceny. The Court also took four larceny counts into account on a Form 1 schedule and dealt with a driving while licence suspended offence by certificate.

The drug offences arose from a police search warrant executed at a Wolli Creek Airbnb unit on 3 December 2021. Officers found significant quantities of methylamphetamine and gamma butyrolactone, drug paraphernalia, a drug ledger, and identification documents belonging to a deceased person with the offender's photo substituted. The offender's DNA and fingerprints linked him to the material.

The property offences involved the offender and a co-offender entering a secure underground carpark at a Waterloo apartment block in the early hours of 27 October 2022, stealing items from two vehicles and several storage cages, and then entering an adjacent residential building. The offender had been driving while his licence was suspended at the time.

  • What sentence was appropriate across four separate offences, taking into account an agreed statement of facts, a 25% guilty plea discount, and Form 1 matters?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio, so that parole supervision would be extended.
  • How the offender's personal history, including his Indigenous background, experience of racial discrimination, childhood sexual abuse, mental health conditions, and drug addiction, bore on the sentencing exercise.
  • What weight to give to the offender's expressions of remorse and his prospects of rehabilitation.

Decision

Scotting DCJ applied the standard fact-finding approach from R v Olbrich: adverse findings were made to the criminal standard, and favourable findings on the balance of probabilities. The offender received a 25% discount on sentence for his early guilty pleas entered in the Local Court, pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, warranting a longer parole period relative to the non-parole period. His Honour noted that the offender had spent most of his adult life in custody and was at serious risk of institutionalisation. An extended supervision period on parole was considered necessary to assist reintegration and address his mental health and addiction needs.

The Court accepted as genuine the offender's expressions of remorse, both to the psychologist (Professor Stephen Woods) and to the Court directly. His Honour found, after observing the offender give evidence, that the offender had genuine insight into his circumstances and a sincere commitment to rehabilitation. The offender had stable family support, accommodation, and a job offer available on release.

An aggregate sentence of three years imprisonment was imposed, with a non-parole period of 18 months, backdated to the date of arrest on 4 December 2021. The non-parole period was set to expire on 3 June 2023, and the head sentence on 3 December 2024, making the offender eligible for release on parole on 3 June 2023.

Orders Made

  • Aggregate term of imprisonment of 3 years imposed, with a non-parole period of 18 months, dating from 4 December 2021.
  • Non-parole period to expire on 3 June 2023; head sentence to expire on 3 December 2024.
  • Offender to be released on parole on 3 June 2023.
  • Offender disqualified from driving and holding a driver's licence for the minimum period of 3 months, taking effect from 3 June 2023.

Key Takeaways

  • A finding of special circumstances is available where an offender faces serious risk of institutionalisation from prolonged periods in custody, justifying a longer parole period relative to the non-parole period.
  • Under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered in the Local Court attracts a 25% sentence discount when the matter is committed to the District Court for sentence.
  • The District Court accepted that an offender's Indigenous background, experience of racial discrimination, childhood sexual abuse, and resulting mental health conditions are relevant personal factors in the sentencing exercise, though they do not displace the need for imprisonment where serious drug and property offences are involved.
  • Genuine remorse, as assessed by both a forensic psychologist and direct observation of the offender in the witness box, can be a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
  • Possession of identification information belonging to a deceased person, with the offender's own photograph substituted into the documents, was treated as the factual foundation for the identity fraud offence under s 192K of the Crimes Act 1900.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 117, 192K
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D, 53A, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Road Transport Act 2013 (NSW), s 54(3)(a)

Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 (guideline judgment on Form 1 offences)
- R v Olbrich (1999) 199 CLR 270 (standard of proof in sentencing fact-finding)