R v Hamilton

[2018] NSWDC 532

District Court

New South Wales

Medium Neutral Citation:	R v Hamilton [2018] NSWDC 532
Hearing dates:	19 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [41]
Catchwords:	CRIME — Property offences — Break and enter — Circumstances of aggravation — Police pursuit — Use offensive weapon — Joint criminal enterprise SENTENCING — Young adult offender — offences as juvenile — background of disadvantage
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	BP v The Queen [2010] NSWCCA 159 Bugmy (2013) 249 CLR 571 Bullock v The Queen [2016] NSWCCA 131 R v Fernando (1992) 76 A Crim R 58 Hayek v R [2016] NSWCCA 126 Mack v R [2010] NSWCCA 269 R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 32 TL v R [2017] NSWCCA
Category:	Sentence
Parties:	Tighreak Trevor Hamilton Director of Public Prosecutions
Representation:	Counsel:     Solicitors: S Dogulin (Hamilton) K Miller (DPP)
File Number(s):	2017/000063882016/00006393

SENTENCE

1. HIS HONOUR: At the outset I think it is appropriate to note that this is a particularly sad case about a very young indigenous man who has had a very difficult short life and has had in recent years very frequent contact with the criminal justice system. It is the type of case which highlights the connection between social deprivation and crime and the need for early intensive supervision of juvenile offenders if they are not to live a life of crime and incarceration.

2. The offender has pleaded guilty in the Local Court and has adhered to those pleas before me to the following offences. The first is that between 7 and 8 January 2017 at Tregear he broke and entered the dwelling house of Graham Wright in Tregear and committed larceny in circumstances of aggravation being that he knew that there was a person present within the dwelling house. That is an offence under s 112(2) of the Crimes Act and has a maximum penalty of 20 years imprisonment with a standard non-parole period of five years.

3. There is a second offence, the police pursuit, the particulars of which are as follows, that on 8 January 2017 at La Perouse he drove a Ford Falcon motor vehicle knowing that police officers were in pursuit and that he was required to stop the vehicle and did not stop the vehicle and then drove the vehicle recklessly and in a manner dangerous to others. That is an offence under s 51B(1) of the Crimes Act and has a maximum penalty of three years imprisonment. There is no applicable standard non-parole period.

4. There is a third offence that on 8 January 2017 at La Perouse he used an offensive instrument, a motor vehicle, with intent to prevent lawful apprehension of himself. That is an offence under s 33B(1)(a) of the Crimes Act and has a maximum penalty of 12 years imprisonment and there is no applicable standard non-parole period. When sentencing him for the offence of using an offensive weapon to prevent lawful apprehension the offender asks that I take into account two other offences which are on a Form 1 being offences of never licenced person drive a motor vehicle and knowingly drive a stolen conveyance. The first offence is a fine only offence, I do not consider that the offences on the Form 1 are of such seriousness to have any significant impact on the sentence that I am to impose on the prevent lawful apprehension offence.

Agreed Facts

5. I turn then to the facts which are agreed. At approximately 12am on 8 January 2016 the offender and three unknown males went to the address of the victim Mr Wright in Tregear. That was an address not previously known to this offender. The victim’s residence is part of an elderly living estate with all residents being over the age of 55 years. The victim’s unit is visible from the road with the front door facing out to the driveway and the rear door leading out to a communal garden. The victim resided alone and at the time of the offence he was 74 years of age. One of the males accessed the unit via the communal garden and attempted to open the rear sliding door of the victim’s unit. The door could not be opened because it was locked. The victim was in his lounge room watching television and heard the noise from the attempt to open the sliding door. He went to the door and observed the screen to have been pulled off the track but the glass sliding door remained locked and closed. He went back to the lounge room and continued to watch TV.

6. For unknown reasons not attributable to the actions of the offender he became light headed and passed out. When the victim regained consciousness around 12.30am he observed that his mobile phone and his wallet were missing. He saw that his vehicle, a blue Ford, was no longer parked in the driveway where he had left it. A witness who also resided in the same estate as the victim observed the four males leaving the house, getting into the victim’s car and driving it away. The kitchen window to the residence was open and the flyscreen missing from that window. The victim contacted police using his neighbour’s phone. The flyscreen was later located by police on the ground.

7. The facts say that the offender is liable under a joint criminal enterprise to enter the house of the victim. His precise role in the offence is unknown and he was later apprehended while driving the victim’s vehicle. The offender gave some evidence about his role in the offence and I will return to that when I discuss the objective seriousness of that offence.

8. At approximately 1.37am on 8 January 2017 police were conducting patrols in Kensington when they observed the offender to be driving the blue Ford of the victim of the aggravated break and enter. At the time the vehicle was travelling at a speed in excess of 60 kilometres an hour which was the sign-posted speed limit in the area. Police activated their warning lights however the vehicle drove away. A radio message was broadcast across the police radio alerting police to the behaviour of that vehicle. At around 2.30am police observed the offender driving along Avoca Street in Randwick and estimated the speed of the vehicle being 100 kilometres an hour in a 60 kilometre an hour zone. As police approached the vehicle they observed four males inside the car, the police activated their warning lights to stop the vehicle. The offender accelerated and a police pursuit was initiated. The pursuit continued through Maroubra to La Perouse with the offender driving at speeds in excess of 100 kilometres an hour. The route taken by the offender also involved residential areas however there were a limited number of pedestrians in the area at the time. Given that it was 2.30am that is to be expected.

9. The offender continued to drive along Anzac Parade, La Perouse turning into a one way street known as The Loop. He was driving against the traffic flow when he performed this turn. The Loop is a one way section of Anzac Parade with parking throughout, at the end of the street the road was closed with a large metal council gate. Police were aware of the road closure and anticipated that the offender would come to a stop. As the vehicle approached the closed council gate another police vehicle had stopped on the road with its lights flashing, a police vehicle was positioned behind the other side of the closed metal gate. The two police officers assigned to that vehicle had alighted from the car and one of them had his weapon drawn. The police yelled at the offender to stop the vehicle. The offender slowed the vehicle before accelerating approximately 50 metres from the gate, he drove through the metal gate and onto the gutter. Both side wheels of the offender’s vehicle burst through and collided with the police vehicle causing significant damage. As the offender drove the vehicle towards the gate a police officer was required to dive towards the right hand side of the road to avoid being hit. The offender continued the pursuit however was unable to reach high speeds due to the damage to his vehicle. He crossed onto the wrong side of the road driving through a red light at the intersection of Botany Road, Chifley. He remained on the opposite side of the road for several kilometres avoiding collisions with three oncoming cars. The vehicle returned to the correct side of the road at the intersection of Maroubra Road in Maroubra.

10. The pursuit continued onto Bunnerong Way with the offender travelling at speeds ranging from 40 to 70 kilometres an hour. He turned at one point onto the wrong side of the road, travelling through a red light. He continued driving into Coward Street Botany where he came to a dead end. He attempted to turn the vehicle to the right however was prevented from doing so by police who had got out of their vehicles and approached the vehicle. So those facts are what constitute the police pursuit and the use offensive weapon to avoid lawful detention or apprehension.

11. He was arrested and observed to be occupying the driver’s seat of the vehicle. He was 18 years of age, he had never obtained a driver’s licence and there were three passengers in the vehicle under the age of 18 years. The vehicle driven by the offender was identified of course to be owned by the victim of the aggravated break and enter and they are the facts that support the two matters on the Form 1.

Assessment of the objectives seriousness of the offences

12. I turn then to my assessment of the objective seriousness of the offences. In assessing the objective seriousness of the aggravated break and enter offence I have considered the objective factors discussed in the guideline judgment of R v Ponfield (1999) 48 NSWLR 32 noting though that there has been some doubt about its continuing relevance, see TL v R [2017] NSWCCA 308 and Mack v R [2010] NSWCCA 269. The offence occurred at midnight and at premises which were part of an elderly living estate and the home of the victim. The victim resided at home and was 74 years of age. Fortunately there was no confrontation between the offender and the victim and it appears that the victim was in essence unaware that his home had been broken into until he awoke and found that items were missing. There was minimal damage done to the premises and it was not ransacked. The items taken were of some value being the victim’s mobile phone, wallet and motor vehicle which was ultimately damaged and unable to be driven.

13. The offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise. While each participant in a joint criminal enterprise is equally responsible for all of the acts in the course of carrying out the enterprise by whomsoever they are committed a particular participant’s level of culpability is to be assessed by reference to the conduct of that particular participant. Although the facts do not describe the offender’s role, in very frank evidence before me he said that he in effect recruited juveniles to assist in the offence and that it was he who took the keys to the victim’s car. As I say, there was no confrontation with the elderly victim and the offender gave evidence, which I accept, that the offender did not know the premises were occupied by an elderly person and that if he had known he would not have selected those premises. I accept his evidence that the premises were selected randomly. The evidence satisfies me that there was minimal planning in relation to the offence. I accept the offender’s evidence that the offence was committed to fund his drug habit and that he was under the influence of prohibited drugs at the time. I assess the objective seriousness of the break enter and steal offence as being below the mid-range.

14. In relation to the police pursuit offence and the use offensive weapon to avoid lawful apprehension offence the vehicle was driven at speeds in excess of 100 kilometres an hour in a 60 kilometre zone. There were three passengers in the vehicle who were young, he drove on the wrong side of the road on more than one occasion and remained on the wrong side of the road for several kilometres during part of the pursuit. At one point his vehicle collided with a police vehicle causing significant damage and a police officer had to dive towards the right hand side of the road to avoid being hit. The pursuit lasted for approximately 23 minutes.

15. There is clearly some overlap between the facts relied upon for these two offences. I consider, given the speed, the lengthy drive on the wrong side of the road and the going through of two red lights, that the police pursuit is a very serious example of the offence. There was a significant risk to public safety and police safety although noting the time that the offence occurred. While given there is no standard non-parole period it is not strictly necessary to do so, I consider the offence falls within the mid-range level of objective seriousness.

16. In relation to the use offensive weapon to avoid lawful apprehension offence I consider, given the damage to the police vehicle and the fact an officer had to dive out of the way to avoid being hit by the vehicle it too is a serious example of that type of offence. I accept, however, the offender’s evidence; that he panicked and did not deliberately attempt to hit the police officer who had to dive out of the way of the offender’s vehicle. Although again, not strictly necessary, I consider the offence falls a little below the mid‑range of objective seriousness.

17. In relation to the police pursuit offence the Crown submitted that the aggravating factor that the offence was committed without regard for public safety under s 21A(2) is present here. In my view, a disregard for public safety is inherent in a police pursuit offence and I do not consider the aggravating factor is established here.

Offender’s Subjective Case

18. I turn then to the offender’s subjective case. The offender is not yet 20 but he will be in a few days’ time. He was still only 18 at the time of the offences, he is therefore a young adult offender and the principles associated with sentencing a young adult offender still have application here. That is despite the fact he had reached his age of majority and his considerable prior association with the criminal justice system which I will discuss shortly. The principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of relevant principles in Bullock v The Queen [2016] NSWCCA 131 referring to BP v The Queen [2010] NSWCCA 159.

19. I mentioned a moment ago that the offender has had a considerable prior association with the criminal justice system. In October 2015 he was sentenced by my sister judge, Judge Yehia, in relation to offences of threaten to use offensive weapon with intent, two counts of common assault, intimidation, destroy property and two counts of aggravated break, enter and steal. I have been provided with her Honour’s remarks on sentence; with great respect to her Honour they are a comprehensive set of remarks. The offender was a juvenile when sentenced by her Honour; her Honour imposed a total aggregate sentence of two years and nine months with a non‑parole period of nine months. He was directed to be released to supervised parole on 19 February 2016. The current offences occurred while on parole for aggravated break and enter offences which is clearly an aggravating factor. Her Honour noted that the offender was on parole when he committed the aggravated break and enter offence that she was to sentence him for. He has many offences on his juvenile record dating back to when he was only 12 years of age. He has received custodial sentences within the Juvenile Justice system. When he was sentenced by her Honour it was the first time he was dealt with in the District Court. Given his young age, I do not find that his criminal record is an aggravating factor but it disentitles him to any significant leniency here.

20. There was tendered on behalf of the offender a report dated 20 February 2018 by Anne Lucas, a forensic psychologist. Ms Lucas’s report is based on a two-hour interview conducted with the offender on 12 February 2018 at the Wellington Correctional Facility. The report contains the following background concerning the offender:

21. The offender is an Aboriginal man born in Dubbo and is currently 19 years of age. His family comprises his mother, two sisters and two brothers. His father was an infrequent visitor to the home. The offender told Ms Lucas that both his mother and father had been heroin users. The offender said that severe family violence took place in the family home and the psychologist’s report said it appeared children in the offender’s family were subject to neglect as a result of parental substance abuse.

22. The offender said that he lived with his mother until aged nine when one evening while staying in a refuge with his siblings his mother failed to return. The children were then taken into care and raised in the care of the State. The children were mostly separated whilst in care but occasionally the offender resided in foster homes with one of his brothers. The offender reported living with strangers from nine to 18 years of age when he was not in juvenile detention. The offender estimates that he only spent three months at a time outside of detention during his mid teenage years. The offender described some difficult foster placements where he was subjected to neglect and psychological cruelty. During one placement the offender and his brother were expected to eat from the rubbish bin. At around 13 years of age the offender said that he began running away from foster homes “trying to find his way home to Dubbo and his grandmother”. It is at this time the offender reports that he fell in with a bad crowd and started committing break and enters.

23. Prior to his incarceration the offender has lived in a variety of locations and sometimes on the street supporting himself through crime. The offender described some of his time in juvenile detention as being settled and that he enjoyed the stability and routine, however he also reported becoming distressed and self-harming. The offender told Ms Lucas that he established associations with other anti-social youth in detention which he continued upon his return to the community.

24. The offender reported that he attended multiple primary schools depending on his foster home placements. He told Ms Lucas that he had been suspended frequently and that he acted out to impress others and in order to be accepted. His high school education has been completed mostly in juvenile detention. The offender described having difficulty with everyday reading and writing and his numeracy skills are restricted. He has never held down formal employment but expressed an interest in one day training to be an automotive mechanic.

25. Ms Lucas administered the Wechsler Abbreviated Scale of Intelligence to assess the offender’s overall intellectual functioning. The offender scored in the low average to average range on the composite full score IQ estimate. He scored in the average range for verbal comprehension and low average to average range for perceptual reasoning. The testing did not indicate that the offender has an intellectual deficit or disability.

26. The offender told the report writer that he commenced using cannabis around the age of 13. From 11 he started binge-drinking infrequently. He was introduced to ice in his mid-teens and has always used the drug intravenously. He realises that taking ice makes him impulsive. The offender has participated in drug and alcohol counselling at least seven times but only as a juvenile. He noted that previous programs have not been a good fit for him and is rarely offered support after discharge. Ms Lucas reports that the offender expresses interest in being involved in a drug rehabilitation program which has an indigenous focus. He believes that support after discharge will make a difference to his ability to remain drug-free when back in the community. Ms Lucas says the information supplied by the offender indicates that his drug-use is likely driven by an attempt to address the emotional distress he experienced as a result of his childhood.

18. In terms of his psychiatric history, the offender reported that he had been diagnosed with depression during his most recent incarceration and is currently being treated with Avanza following a suicide attempt in the last two months while in custody. He has experienced symptoms of depression for as long as he can remember and provided a history of self-harming or “cutting”. The offender told Ms Lucas that anxiety has been a significant problem for him for as long as he can remember and symptoms included panic attacks, avoidance, self-consciousness, difficulty thinking clearly and solving problems without second-guessing himself. He reported that smoking cannabis lessened his anxiety as did using amphetamines.

19. The report writer notes that the offender suffers pervasive thoughts of worthlessness and personal failure and his symptoms include sadness, hopelessness, loss of interest in engaging in activities and a loss of ability to derive pleasure. In regards to his anxiety Ms Lucas reports that relatively mild stresses may be sufficient enough to precipitate major life crises for the offender. He described high levels of suspiciousness and mistrust in his relations with others. The offender told Ms Lucas that his past criminal behaviour is undertaken in an attempt to finance his drug use and supply himself with basic needs such as food.

20. In relation to his offending on this occasion he advised Ms Lucas that he committed the offences in an attempt to obtain money for drugs. He told Ms Lucas he knew he was doing the wrong thing but was drug affected at the time. He said “When I’m on ice, I turn into a different person, not a good person”.

21. The offender intends for things to be different when he is eventually released from custody on this occasion. He is “Sick of letting his family down” and “Sick of living the life” he has up until this point. Ms Lucas reports that treatment of his mental health issues, stable accommodation, employment and avoidance, his antisocial associates and substance abuse are important factors in the offender’s rehabilitation. Without attention to these factors Ms Lucas says that his risk of reoffending would be considered moderately high, assessed by factors identified within the level of service inventory.

22. Ms Lucas reports that on the basis of information provided during the interview it appears the offender suffers from a persistent depressive disorder with prominent anxiety. He also displays characteristics associated with Cluster B personality disorder. In her opinion early disruption in the offender’s attachments and exposure to the harmful effects of parental substance abuse and violence have had notable effects on his mental health and interpersonal functioning. Ms Lucas notes that this is the offender’s first time in an adult prison and he has indicated that he is struggling emotionally. She suggests regular monitoring of his mental health status. Whilst the intellectual screening Ms Lucas conducted did not indicate that the offender has an intellectual disability it is suggested that this literacy and numeracy assistance would improve his functional capacity, employability and self-esteem.

23. In terms of the offender’s background I note the following from Yehia DCJ’s remarks which I consider appropriate to have regard to in this sentence. Her Honour found that the offender is a young person who:

“Had a history of being exposed to domestic violence and alcohol abuse in his formative years until his father was incarcerated in about 2006. Since being in the care of Family and Community Services he has had over 20 placements. While many of those placements were with family members the constant disruption of his home life and the absence of continuity in his parental supervision and care matters relevant to his development”.

33. I adopt her Honour’s distillation of the Bugmy and Fernando principles. Her Honour said:

“Because of the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending it is right to speak of giving full weight to an offender’s deprived background in every sentencing exercise”.

34. I also adopt what her Honour said at p 13 of her Honour’s remarks:

“I am satisfied that the young person’s background and history of disadvantage reduces his moral culpability. I am also satisfied that his deprived background over the years to violence and alcohol abuse is relevant to his capacity to mature and his capacity to appreciate the wrongfulness of consequences of his behaviour”.

35. I have already referred to the fact that the offender gave evidence and confirmed the details of his background as described in both the pre-sentence report and the psychological report. I noted earlier the evidence he gave as to his involvement in the offences. The evidence he gave in relation to the aggravated break enter and steal offence might be thought to be contrary to his interest as he took full responsibility for the offence and admitted to, in effect, recruiting some juvenile offenders. Although there was nothing in his custodial history suggesting that he has used drugs while in custody on this occasion he frankly admitted in the witness box that he had used buprenorphine whilst in custody. Again that was the evidence he gave concerning what might be thought to be against his interest, yet when in the witness box he was clearly determined to tell me the truth. Overall his evidence seemed very genuine to me and he was an impressive witness. I note that when he gave evidence before Yehia DCJ back in 2015 she too found that he was an impressive witness. I have no doubt that his expressions of remorse, in the witness box, are genuine. I also have no doubt that he wants to give up his drug use and to live a law abiding life in the community. The question is can he do that even with considerable support.

36. It is unfortunate that I was not provided with any reports as to how the offender performed when initially released on the parole as set by Yehia DCJ. The offender’s own evidence, however, suggests that he failed to engage with the drug rehabilitation which was a condition of his parole. Given his record and the fact that when he committed the offences he was sentenced by Yehia DCJ, he was on parole for aggravated break and enter offences when he committed the offences I am to sentence him for, his prospects of rehabilitation can be no more than guarded bordering on poor. I am reluctant to find that such a young person has poor prospects of rehabilitation. I note her Honour considered the prospects of rehabilitation were guarded when she sentenced him as a juvenile.

37. There is evidence before me that the offender has an evasive depressive disorder and has during his current period in custody attempted suicide. He is now taking Avanza for his condition. I do not think the evidence here supports a finding that his mental health is the cause of his offending and reduces his moral culpability. I do consider though that it means he has and will find his time in custody more arduous than those offenders who do not suffer from similar conditions.

38. In general terms the fact that an offence is committed while under the influence of a prohibited drug or drug addiction is not a mitigating factor. However, where an offender is young and has turned to drug use due to disturbing events that if occurred in their young life, in a short life, it can be appropriate to give greater weight to the rehabilitative objective of sentencing. That is an appropriate approach to take here when all the evidence is considered. See the discussion by Simpson J as her Honour then was in R v Henry (1999) 46 NSWLR 346 and more recently by Wilson J in Hayek v R [2016] NSWCCA 126.

39. As I observed earlier he pleaded guilty in the Local Court and I will allow a twenty-five per cent discount in his sentences for the utilitarian value of his pleas. For the reasons I gave earlier I consider that his expressions of remorse are genuine and thoughtful. Clearly there should be a finding of special circumstances given his age and the fact this will be his first time serving a sentence as an adult. He will need considerable assistance in the community when released to ensure that he does not relapse into illicit drug use and further offending. I consider that he will be assisted in his rehabilitation by having a longer period on parole than that provided by the statutory ratio. He has been in custody since 9 January 2017. He served the balance of parole until 19 February 2018. Having regard to the principles of totality and the fact that but for the commission of the current offences he may have been released to parole I propose to commence his sentence from 9 April 2017. Given the three offences occurred in two separate incidents there should be some accumulation of the sentences.

40. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act and have determined that the only appropriate sentence is one of imprisonment. The maximum penalties and in relation to the aggravated break and enter offence and the standard non-parole period have been taken into account as the legislative guidepost. I will impose an aggregate sentence, I will firstly record the indicative sentences and in relation to the aggravated break and enter offence an indicative non-parole period.

Orders

41. Mr Hamilton need not stand as he is appearing on the AVL. Mr Hamilton is convicted of the offences to which he has pleaded guilty. On the aggravated break and enter offence there is an indicative sentence of two years and three months imprisonment and an indicative non-parole period of one year and one month. On the police pursuit offence there is an indicative sentence of 13 months imprisonment. On the use offensive weapon to prevent lawful apprehension offence and having regard to the offences on the Form 1 there is an indicative sentence of 18 months imprisonment. I impose an aggregate sentence of three years with a non-parole period of 18 months. It commences on 9 April 2017 and expires on 8 April 2020. He should be released to parole on 8 October 2018 this year pursuant to a statutory parole order. The statutory minimum disqualification period should be applied in relation to the police pursuit matter in order to enhance his rehabilitation. I note the period does not run until he is released from custody.

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Decision last updated: 19 February 2020