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District Court 20 October 2023

R v Hakim

[2023] NSWDC 605

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIME PROPERTY OFFENCES DESTROYING OR DAMAGING PROPERTY VIOLENT OFFENCES STALKING OR INTIMIDATION

Citation: R v Hakim [2023] NSWDC 605
Court: District Court of New South Wales
Date: 20 October 2023
Judge: Scotting DCJ

Background

The offender, a 30-year-old man, pleaded guilty in the Local Court to aggravated break and enter and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The charge arose from events on 29 August 2022, when the offender attended the Panania home of his former partner's new acquaintance, armed with a sledgehammer.

The offender forced entry through a glass laundry door, moved through the home making death threats, and struck the bathroom door with the sledgehammer while the victims barricaded themselves inside. The blow caused injury to the former partner, who was pushing against the door. He later smashed the rear windscreen of a vehicle in the yard before leaving.

In the days leading up to the incident, the offender had sent repeated threatening messages to the male occupant, including threats of death, rape, and violence against him and his family. The offender was already subject to multiple Apprehended Domestic Violence Orders at the time of the offending and was on an Intensive Corrections Order imposed in June 2022.

Legal Issues

  • What is the appropriate sentence for aggravated break and enter and commit a serious indictable offence, taking into account the offender's personal circumstances, mental health, and criminal history?
  • To what extent does the offender's complex PTSD and substance use disorder reduce his moral culpability?
  • Whether a causal connection between the offender's mental condition and the offending justified affording less weight to general deterrence.
  • Whether special circumstances existed to justify a longer than usual ratio of parole to non-parole period.
  • What weight should be given to the offender's prospects of rehabilitation, his remorse, and his guilty plea?

Decision

Objective seriousness:
The court found the offending involved significant objective gravity (at [51]). The conduct was premeditated, involved planning, and was carried out with a sledgehammer used to force entry, damage property, and injure the former partner (at [52]). The serious indictable offence committed inside the residence was the intimidation of the former partner, involving substantial threats of violence including threats to kill (at [53]). Statutory aggravating factors included the use of a weapon, the commission of the offence in the victim's home, and the offender being on conditional liberty at the time on an Intensive Corrections Order (at [59]-[61]).

Moral culpability and mental condition:
Despite the objective seriousness, the court found the offender's moral culpability was reduced by reference to his deprived upbringing, childhood sexual abuse, complex PTSD, and substance use disorder (at [55]). The court was satisfied there was a causal connection between the offending and his mental condition, which warranted affording less weight to general deterrence (at [57]). The psychiatrist's evidence, including diagnoses of Complex PTSD and Substance Use Disorder and an assessment of moderate to high risk factors for violence, was considered alongside protective factors such as family support and motivation to engage in treatment (at [50]).

Rehabilitation, remorse, and plea:
The court accepted the offender had good prospects of rehabilitation, noting his completion of multiple programs in custody, his abstinence from drugs while incarcerated, and his genuine engagement with rehabilitation goals (at [62]). Remorse was demonstrated through his letter to the court and his plea of guilty, which attracted a 25% discount on sentence (at [5], [63]).

Special circumstances and sentence:
The court found special circumstances existed because the offender's mental condition requires an extended period of community-based treatment, and he has not previously benefited from a lengthy period of parole supervision (at [69]). Taking into account the Form 1 offences and all matters, the court imposed 3 years imprisonment with a non-parole period of 18 months, commencing 30 September 2022 (at [70]).

Orders Made

  • The offender, Jason Hakim, is convicted of the offence.
  • A term of imprisonment of 3 years is imposed, with a non-parole period of 18 months, dating from 30 September 2022.
  • The non-parole period expires on 29 March 2024; the head sentence expires on 29 September 2026.
  • The offender is eligible to be released on parole on 29 March 2024.

Key Takeaways

  • The District Court found that a diagnosis of Complex PTSD causally connected to childhood sexual abuse, combined with a severe substance use disorder, was capable of reducing an offender's moral culpability for serious violent offending, even where the objective gravity of that offending was high (at [55], [57]).

  • A causal connection between an offender's mental condition and the commission of offences is a relevant basis for affording less weight to general deterrence in sentencing, consistent with established principles (at [57]).

  • Special circumstances justifying a reduced non-parole period relative to the head sentence can be established where an offender requires extended community-based mental health treatment and has not previously had the benefit of a substantial period of parole supervision (at [69]).

  • Being on an Intensive Corrections Order at the time of offending is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and the court may partially accumulate a new sentence to account for the revocation of that order caused solely by the fresh offending (at [61], [64]).

  • Genuine engagement with rehabilitative programs in custody, sustained drug abstinence while on remand, family support, and expressed remorse are all relevant mitigating considerations that courts weigh when assessing prospects of rehabilitation under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (at [62]-[63]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Domestic and Personal Violence) Act 1907
- Crimes (Sentencing Procedure) Act 1999

Cases
- Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147
- R v Olbrich (1999) 199 CLR 270