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District Court 22 July 2024

R v Hurkett

[2024] NSWDC 543

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE ROBBERY WITH AN OFFENSIVE WEAPON

Citation: R v Hurkett [2024] NSWDC 543
Court: District Court of New South Wales
Date: 22 July 2024
Judge(s): Bourke SC DCJ

Background

The offender, a 27-year-old man, was sentenced for two counts of robbery armed with an offensive weapon, arising from a planned home invasion in Bidwell around midnight on 6 April 2023. A female co-offender, who was known to the victims, gained entry to the house under the pretence of delivering toys for the homeowner's children. She then opened the front door to allow the offender and two unidentified men to rush inside.

The homeowner had three young children asleep in their bedrooms at the time. A second victim was present as a visitor. The intruders were armed with a tomahawk, a machete, and a samurai sword (the last of which was handed to this offender once inside). Over approximately 40 minutes, the victims were subjected to threats of extreme violence, humiliation, and demands for cash and property. The children were threatened as a means of ensuring the victims' silence.

The offender pleaded guilty at the earliest opportunity to both robbery counts. A further offence of aggravated entry to a dwelling, knowing persons were inside, was placed on a Form 1 document (meaning it was taken into account in sentencing without the offender being separately convicted of it).

  • What was the appropriate sentence, having regard to the objective seriousness of two armed robbery offences committed during a planned home invasion?
  • What weight should be given to the offender's subjective circumstances, including mental health, background, and prospects of rehabilitation?
  • How should the 25% utilitarian discount for an early guilty plea be applied?
  • How should the sentence commence, given the offender had been in custody since arrest and had concurrently been serving time for unrelated matters?
  • Whether special circumstances existed to justify altering the standard ratio between the non-parole period and the balance of the sentence?

Decision

Bourke SC DCJ characterised the offences as seriously aggravated robberies. The planning evident from text messages (including one where the offender's co-offender referred to the victim as someone they were "gonna do over ages ago") demonstrated premeditation. The use of multiple weapons, the prolonged nature of the invasion, the humiliation and degradation inflicted on one victim, and the threats made against the victims' families and the sleeping children all elevated the objective gravity of the offending.

The court took the offender's subjective circumstances into account, including diagnosed mental health conditions and his background, consistent with the principles in Bugmy v The Queen. Notwithstanding those matters, the court found the objective seriousness of the offences remained high and called for a substantial custodial response.

After applying the 25% guilty plea discount, the court set indicative head sentences of three years and six months for each count. Because an aggregate sentence was imposed, those indicative figures informed (but did not determine) the final sentence. The court found special circumstances, based on the risk of institutionalisation and the offender's mental health conditions, justifying some adjustment to the non-parole period.

On the question of the commencement date, the court noted the offender had been in custody since 16 May 2023, but that part of this period was attributable to the revocation of an Intensive Correction Order and to a separate assault sentence. Applying totality principles, the court backdated the sentence by approximately half of the period served on these offences, commencing the sentence on 17 December 2023.

Orders Made

  • Aggregate head sentence of four years and two months, commencing 17 December 2023, expiring 16 February 2028.
  • Non-parole period of two years and ten months, expiring 16 October 2026.
  • Indicative sentence for Count 1 (robbery with offensive weapon, including the Form 1 matter): head sentence of three years and six months.
  • Indicative sentence for Count 2 (robbery armed with offensive weapon): head sentence of three years and six months.
  • Special circumstances found and applied in setting the non-parole period.

Key Takeaways

  • A 25% utilitarian discount applied where the offender pleaded guilty at the earliest opportunity, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender has been in custody serving time for unrelated matters concurrently with pre-sentence detention on the offences being sentenced, totality principles inform (but do not dictate) the extent to which a sentence is backdated.
  • Special circumstances justifying a departure from the standard non-parole ratio can be established by a combination of mental health diagnoses and the risk of institutionalisation from a lengthy first period in full-time custody.
  • The District Court treated evidence of text-message planning, the use of multiple weapons, the deliberate use of a co-offender to gain entry, threats against children, and prolonged victim humiliation as factors elevating objective seriousness beyond the mid-range.
  • Under the aggregate sentencing regime, indicative sentences for individual counts are required to be nominated even where the final order is a single combined sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery with offensive weapon, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Aguirre v R [2010] NSWCCA 115
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- McCullough v R [2009] NSWCCA 94
- R v Harris [2011] NSWCCA 105
- R v Henry (1999) 46 NSWLR 346