R v Halatoa

[2010] NSWDC 293

CITATION:	R v HALATOA [2010] NSWDC 293
HEARING DATE(S):	9 December 2010
EX TEMPORE JUDGMENT DATE:	9 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of aggravated enter a dwelling with intent, I sentence the offender to imprisonment for a fixed term of two years. For the offence of assault police in the execution of his duty and cause actual bodily harm, the offender is sentenced to imprisonment. I set a non-parole period of two years with a head sentence of four years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Opportunistic offending - Aggravated enter dwelling house with intent - Assault police officer in execution of duty causing actual bodily harm - Recent release from custody - On probation and parole at time of offending
PARTIES:	The Crown Ricky Halatoa (Havea)
FILE NUMBER(S):	DC 2010/00019995
SOLICITORS:	Director of Public Prosecutions Aboriginal Legal Service

SENTENCE

1 HIS HONOUR: Ricky Halatoa appears for sentence today after having pleaded guilty at an early stage to two offences, both committed at around the same time on 21 January 2010. Mr Halatoa had only recently been released from custody when he committed these two serious offences.

2 He and a friend were out one evening. They went past a boarding house in Redfern, they noticed that one of the windows was open. They therefore went into the boarding house and went to the second storey, where they entered a bedroom shared by two men, who from the nature of the property stolen appear to have been tourists. The offender and his accomplice then stole a significant amount of property, some of it quite valuable, from the premises. Fortunately the acts of taking the property disturbed one of the men sleeping. He saw two silhouettes leaving his bedroom, got up and realised what was happening. The police were, therefore, called.

3 A little while later the police, presumably attending in response to the telephone call, saw the offender and two others walking along the road. They saw that the offender was carrying property consistent with the description of property stolen, as was another of the people there. That person was arrested. The backpack in his possession was later shown to have been taken from the premises. However, the offender tried to get away. He jumped over a fence before running through a construction site. Eventually the offender reached a fence which was quite high. He tried to climb over the fence, but a police officer pulled him down. Rather than recognising that he had been arrested and giving up, the offender then acted very violently towards the police officer who was trying to arrest him. He firstly grabbed the officer in a headlock and then kicked and punched him several times. In an effort to defend himself the officer drew his extendable baton and struck the accused several times to the left arm. Again, rather than giving up, the offender responded violently. He took control of the baton and used it to hit the police officer hard to the back of his head causing him immediate pain, dizziness and for him to become disoriented. Eventually the officer, fearing that he was going to be overpowered, let go of the baton, pushed the accused away and drew his firearm. It was at this belated stage that the offender gave up. He was then arrested and taken to the police station. He was searched later on and property that had been taken from the premises earlier on was discovered on him.

4 The officer fortunately does not appear to have been significantly physically injured. He was treated for bruising and abrasions by an ambulance officer and was told that he should apply ice to the bruising to his head.

5 As I mentioned, the offender had only been released from custody a fortnight prior, three weeks in fact. That was for an offence of break and enter a dwelling house with intent to steal, an offence remarkably similar to one of those to which I must sentence the offender today. In addition he was on probation for an offence of break, enter and steal, that probation being imposed upon him by the Children’s Court in March 2009. Although he was over eighteen at the time, the offence was committed when he was younger. That explains why he was both on probation from a Children’s Court and on parole in relation to a sentence imposed at Blacktown Local Court at the time he committed these offences. Upon his being returned to custody his parole was revoked. Thus, from 21 January 2010, the date of his arrest, until the expiry of his sentence, sometime later, 30 April 2010, he was both bail refused on these matters and serving the balance of parole.

6 That led to a dispute between the Crown and Mr Rajan, who appeared for the offender, as to the date on which the sentences I impose for these matters should commence. I will sentence him to date from 21 January 2010, recognising that it was the commission of these offences which led to parole being revoked, and that I will be taking into account in determining the appropriate sentence to be imposed, the fact that he was on parole and probation at the time of these offences.

7 The offender is still a relatively young man, twenty years of age. His upbringing was less than ideal. His mother abused alcohol and she and his father were regular perpetrators of domestic violence against each other. His father would serve periods of custody, usually for domestic violence matters, which led to significant financial strain within the family. In order to feed themselves members of the family believed it was necessary for them to commit offences. Thus, for the offender as he grew up crime was a way of life and even perceived as essential. Alcohol and violence were particular features of his upbringing. Things have improved of recent times as his mother deals with her issues regarding alcohol.

8 The offender left school before completing year ten and although he has been employed for brief periods from time to time, he has largely been unemployed, receiving benefits from Centrelink on occasions.

9 He has been involved in a relationship with his partner. They have two children. But despite his partner having visited him regularly in custody, those visits have ceased. The offender believes that this may be because his partner too has now been arrested for some offending.

10 The offender told a psychologist who wrote a report for the benefit of the Court about his drug and alcohol history. He is a significant consumer of illegal drugs and alcohol. Not surprisingly these have led to problems with his behaviour, including a tendency to lose his temper easily, paranoia, hyper vigilance, and other common and distressing features of substance abuse. On being released from custody shortly before the commission of these offences the offender began abusing cocaine, ecstasy, heroin and alcohol. He was under the influence of these drugs at the time of these offences.

11 As Mr Rajan noted the prospects of the offender’s rehabilitation are guarded. He has for a young man a fairly entrenched antisocial lifestyle. He reports regular violence, for example, as well as substance abuse I referred to earlier. It is of course obvious that the offender needs to be punished for what he has done by a significant term of imprisonment. However, there is also the need to ensure, as far as possible, that the offender is offered the opportunity to rehabilitate himself. For those reasons I will be making a finding of special circumstances in the offender’s favour and making a recommendation that he be released on parole consistent with the matter referred to in the psychologist’s report.

12 The offence of assaulting a police officer in the execution of his duty, thereby causing actual bodily harm, carries with it a standard non-parole period of three years. That standard non-parole period is not of direct application because of the early pleas of guilty but it remains as an important guidepost to the sentence that I should impose on him for that offence.

13 I am required to assess whereabouts in the range of offending this particular offence falls. I am satisfied that it is in the middle of the range of objective seriousness of offences of this type. I take into account that the physical injuries suffered by the police officer are relatively minor, consisting of bruising and abrasions. Much more serious injuries are encompassed by the description actual bodily harm. On the other hand I take into account that the offender used a weapon. He may not have brought the weapon to the scene and only used it once it was produced by the police officer, but once he got his hands on it he used it by striking the police officer to the back of his head. Also important in assessing the objective gravity of this offence is the fact that this was not a single blow, as if often the case, but was sustained violence, beginning with a headlock, continuing with punching and kicking and ending with the use of a weapon, the police officer’s expandable baton. For those reasons I find, as I have said, the objective gravity of the assault police officer in the execution of his duty and cause actual bodily harm offence, is in the middle of the range of objective seriousness of offences of this type.

14 These were opportunistic offences in one sense. The offender and his accomplice, or accomplices, saw the open window and took advantage of the opportunity that that presented. He did not go out that evening intending to assault a police officer, doing so only in an effort to get away after having committed the first of his offences. In spite of the circumstances, these offences are very serious. What is a person supposed to do on a summer’s night in Sydney? Put bars over every window, sleep with the window shut? It has to be recognised that when people do take advantage of the opportunity that open windows present to commit an offence such as the one I have described of aggravated enter dwelling with intent, in circumstances where they well knew that people were asleep inside, a significant sentence is imposed. Further, assaults on police officers doing their duty to reduce crime and bring offenders to justice, must also be met with significant sentences. It is largely a thankless task that police officers perform, but it is an essential one and the courts need to do what they can to deter others that may be tempted to assault police officers, particularly when they are being arrested for another offence. For those reasons, despite the offender’s youth, despite the offender’s background, significant sentences of imprisonment are required. I will reduce the sentences I would have otherwise imposed by twenty-five per cent to reflect the utilitarian value of the offender’s early pleas of guilty.

15 The sentences I impose are as follows. For the offence of aggravated enter a dwelling with intent, I sentence the offender to imprisonment for a fixed term of two years to date from 21 January 2010. I impose a fixed term because of the sentence I will now impose on the other matter.

16 For the offence of assault police in the execution of his duty and cause actual bodily harm, the offender is sentenced to imprisonment. I set a non-parole period of two years to commence on 21 January 2011 with a head sentence of four years for that matter.

17 Because of the length of the sentence it is not for me to impose conditions of parole but I recommend that the parole authorities give serious consideration to requiring as a condition of his parole that he attend a residential rehabilitation program such as that offered by Benelong’s Haven at Kempsey.

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