R v Hand

[2019] NSWDC 917

District Court

New South Wales

Medium Neutral Citation:

R v Hand [2019] NSWDC 917

Hearing dates:

23 August 2019

Decision date:

30 August 2019

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Indicative sentences:

005 + Form 1 matter [SEQ 003]:

Total sentence of imprisonment for 3 years 6 months with a NPP 2 years 6 months

004: Imprisonment for 18 months

Aggregate sentence:

Sentenced to a total term of imprisonment for 4 years with a NPP of 3 years to commence on 10/9/18 and to expire on 9/9/21, and a balance of term of 1 year to commence on 10/9/21 and to expire on 9/9/22.

Catchwords:

CRIME – Sentence - aggravated break and enter and commit serious indictable offence, reckless wounding in circumstances of aggravation, knowing there were persons present within the dwelling house - assault occasioning actual bodily harm – seriousness of offence – subjective matters

Legislation Cited:

Crimes Act 1900

Category:

Sentence

Parties:

Regina
Hand, John

Representation:

Counsel:
Defence: Ms C Mendes

Solicitors:
Crown: Mr A Dixon

File Number(s):

2018/00271292

Judgment

1. John Hand appears for sentence in respect of an offence of aggravated break and enter and commit serious indictable offence, to wit, reckless wounding in circumstances of aggravation, being that he knew there were persons present within the dwelling house. That is an offence contrary to s 112(2) of the Crimes Act 1900; the maximum penalty provided is imprisonment for 20 years, and there is a relevant standard non parole period of five years.

2. In addition, when being sentenced in respect of that matter, he asks the Court to take into account a further offence of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, which when dealt with separately has a maximum term of imprisonment of five years. There is a further offence contained on a s 166 certificate of demanding property with menaces contrary to s 99(1) of the Crimes Act, which when dealt with at the District Court level has a maximum term of imprisonment of ten years, however, when dealt with at the Local Court, that limit is two years.

3. The offender was committed for sentence on 2 April 2019 from the Albury Local Court, and I accept that in the circumstances of the early plea he is entitled to a discount for the utility of the plea alone, in the order of 25%. The offender was arrested on 10 September 2018 and has been in custody solely in relation to these offences since that date until today.

4. The facts are agreed and are as follows:

5. The victims are Graham Pearce, and the offender's mother, Michelle Dayer. Pearce and Dayer at the time were in an intimate domestic relationship.

6. Pearce lived in Alexandra Street, East Albury, and Dayer stayed with him from time to time.

1 September 2018

Assault occasioning actual bodily harm (Form 1)

7. At about 10.30am on 1 September 2018, Pearce drove Dayer to the offender's house in South Albury so that she could see the offender's recently born baby. When they arrived, Dayer got out of the car and went inside the premises. The offender then left the premises and immediately came storming over to the vehicle in which Pearce was. He sat in the passenger seat. A verbal argument developed, in which the offender started yelling abuse at Pearce for not coming and seeing the baby, and for driving Dayer's car.

8. The offender then grabbed hold of Pearce's left hand and squeezed tightly, causing immediate crushing pain throughout Pearce's knuckles and fingers. Pearce defended himself by punching his right hand out and striking the offender in the throat with his palm. The offender then let go of Pearce's hand and got out of the car. The offender said something about wanting Pearce charged with assault.

9. Pearce told Dayer about the assault, but did not immediately report the matter to police, as he did not want things to escalate between himself and the offender.

Nature of the Injury

10. Pearce suffered an undisplaced spiral fracture of the left fourth metacarpal (hand bone of the ring finger). Pearce received treatment from Albury Base Hospital. His hand was treated with a cast. He states that he undergoes daily physiotherapy, and that he is unable to close his left hand properly as a result of the injury.

3 September 2018

Aggravated break and enter (Sequence 5)

11. In the morning of 3 September 2018, the offender contacted his mother by phone and text message, stating that he wanted $2,000 from her, and that if she did not bring it to him, he would "come and get it". Later that afternoon the offender sent a text message to his mother asking for “Tally Ho” cigarette papers and wanting to know what time she was going to come to his house to drop them off. He later said that he would come around to the house himself, and would, "be out the front soon".

12. At about 6.45pm the offender called his mother and asked if she was "coming around". She said no, and the offender said, "Well, I will get someone to run through, then".

13. At this time his mother was with Pearce at his house in Alexandra Street, East Albury.

14. Not long after the conversation, Ms Dayer was sitting at the dining table of the kitchen when she heard banging at the front door, which was locked at the time. She then saw the door come, "flying open", and the offender enter.

15. Pearce was in the lounge room and also heard a bang. He picked up a can of insect spray and approached the offender, who at the time was on a small landing just inside the front door, and sprayed the insect spray towards the offender in an effort to protect himself. The offender struck Pearce in the knee and in the head with a metal outdoor chair that he had brought with him through the door, as it had been sitting outside the house. Pearce and the offender ended up in the lounge room, which is at the front of the house, directly to the left of the landing previously referred to.

16. Ms Dayer panicked. She ran up and grabbed hold of the chair, causing the offender to drop it, and he then ran out through the front door. Ms Dayer followed and saw the offender get into a white Daewoo sedan and drive out of the driveway, past the front gate, which had previously been padlocked shut prior to the incident.

17. Ms Dayer noticed that Pearce was bleeding from the top of his head and from his knee. She contacted Triple 0 and transported Pearce to the Albury Base Hospital, as it was nearby.

Nature of Injuries

18. As a result of the assault, Pearce suffered a 5 centimetre laceration to his head and a 15 to 20 centimetre laceration across his left knee. Five staples were used to close the laceration to his scalp. The laceration to his knee required intravenous antibiotics as well as exploration and repair under anaesthesia. Surgery was performed in the afternoon of 4 September 2018, in which the laceration was further explored, without finding any further injury. The injury was then cleaned, the edges debrided and sutured. A photograph of the injury tendered by the Crown shows the laceration to be just above the kneecap.

4 September 2018

Demand property with menaces with intent to steal (Sequence 3 s 166 Certificate)

19. On the morning of 4 September 2018, the offender sent a number of messages via Facebook to his mother. A lengthy message is set out in the facts, which I do not propose to quote due to its length, however it can be summarised as saying that he proceeded to abuse his mother, demanding $1,000 from her, and endeavouring to, in effect, intimidate her by saying that she would not have access to her grandchild. He also made allegations about her, "ripping me off", and claiming that, "We're on the streets because of Graham. Pay the fucking money or you'll never see me again".

20. His mother responded, "Because of your actions", and he then responded, correcting the English, "I've done wrong do you want me to come see Graham and smash him, and do it the right way I'm not fucking around you already called the cops on me last night, you know I'm living on the fucking streets you just want to fuck me over, it's going to get worse tell him to pay the bill".

21. The offender then called his mother on her mobile phone and they spoke for a few minutes, during which the offender said, "If you don't put the money into the account, I will run through your house again with more people, and really hurt Graham this time".

22. After the call, Ms Dayer contacted the police.

Arrest and interview

23. Police began searching for the offender at 10pm on 3 September 2018 by attending his address in Plumber Street South Albury. He was not then

24. On 4 September 2018 they sent messages to him via Facebook. In response, the offender denied any involvement in the offending, and stated that he had been in Melbourne for the last two weeks.

25. At about 8.30am on 6 September 2018 police attended premises in Conifer Close, Yarrawonga, Victoria, where they observed the offender's white Daewoo sedan parked at the front. Police searched the house, where they found the offender's partner and their young child, but were unable to locate the offender.

26. Police attempted to locate the offender at a number of other properties in Wodonga, Victoria.

27. At 11.05am on 6 September 2018, the offender called Albury police station, stating that he was on his way back from Melbourne and that he would hand himself in at about 9am on 7 September 2018. He failed to do so.

28. At about 4.40pm on 10 September 2018, police again attended the Plumber Street, Albury, address, where after knocking on the door there was no response. They then executed a Child Protection Warrant and forced entry. The offender was located in the bedroom with his partner and young child.

29. He was then arrested and conveyed to the police station. He was informed of his rights and elected to participate in a recorded interview with police. He then denied any involvement in the offences, that for whatever reason, the offender had a significant dislike of the victim, Pearce, and the relationship between his mother and Pearce.

30. There was a sequence of offending on 1, 3, and 4 September. Injuries were occasioned to Mr Pearce on 1 September in respect of his fractured finger, and on 3 September in respect of the assault utilising a chair taken into the premises by the offender when he broke through the door, of a 5 centimetre laceration to Mr Pearce's head, and a 15 to 20 centimetre laceration across the left knee.

31. There is a Victim Impact Statement from Mr Pearce, which indicates the injuries have created some continuing problems for him in respect of his finger and in respect of the injury, in particular, to his knee. He indicates that he has trouble getting up and down stairs, and regular pain in the left knee, and it makes it harder to do things such as to kneel on that knee, otherwise, the offender's conduct over the days referred to have resulted in the victim having trouble sleeping at night and not feeling safe. He indicates that he will not feel safe when the offender is released, and that he will be in fear of his life, and indicates an intention to sell his house and move somewhere else. The relationship between Mr Pearce and Ms Dayer appears to have failed, a fact that Mr Pearce blames on the offender, whether that is appropriate or not.

32. In respect of the offence contrary to s 112(2), on 3 September 2018, I am of the view that it falls into the midrange of objective seriousness for such an offence, particularly taking into account the offence two days before, which resulted in a broken finger and the victim, at the time of the later offence, having a cast on his hand.

33. As for the assault occasioning actual bodily harm on 1 September 2018, in my view it is a serious offence as it resulted in a broken finger, deliberately inflicted by the offender squeezing the victim's hand until he achieved the result of breaking the finger. It also occurred in circumstances where there was no provocation from the victim, and the offender went out of his way to place himself in the motor vehicle in which Pearce had remained outside the premises.

34. As to the demand property with menaces, there is no explanation contained in any of the material before me as to why the offender thought that his mother should have to pay him money, or why he blamed her for his then circumstances. The threats conveyed to her were nonetheless significant and must have been of serious concern to her in circumstances where it is unlikely that she was not aware of his past history of like offending, at least in terms of making threats against others.

35. As to subjective matters, the offender is now approximately 35 years of age. Before the Court is his New South Wales criminal history and his Victorian Police Court outcomes report, a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, and a letter from the chaplaincy services at Bathurst Correctional Centre dated 22 October 2018, which simply refers to him as regularly attending chapel services and participating attentively and respectfully.

36. In addition, there is a letter to the Court from the offender's mother expressing her continuing support for her son. In the letter, she indicates that she has spoken to him since his arrest, and that she is, "now of the view, having spoken to him, that he's remorseful for the way he acted towards me". I note there is no suggestion in her letter to the Court that the offender has expressed any remorse or contrition in respect of Mr Pearce.

37. In addition, there is a letter from Duffy Robilliard Psychologists, under the hand of Anne Lucas. There is a further letter from Angela McGuire, being a drug and alcohol nurse manager with the Albury Community Drug and Alcohol Service, dated 21 September 2018, indicating a number of attendances and consultations with the offender from 13 August 2018 to 10 September 2018, relating to an assessment of him for the provision of a plan to support him in relation to his cannabis abuse.

38. In addition, there is a letter dated 21 August 2019 from Sara Janssen, being a senior clinician and intake officer with the Calvary Riverina Drug and Alcohol services, indicating that the offender was assessed on 22 January 2019 to enter a residential rehabilitation at the Calvary Riverina Drug and Alcohol services in Wagga Wagga. He was at the time placed on a waiting list, and at the time of the report was 16th on the list. Otherwise, the letter from Calvary simply sets out the nature of their various programs and indicates in relation to the offender that there was then currently, at least a three to four month waiting period for participation. Subjective matters are drawn from that material.

39. The offender did not give evidence on sentence.

40. He was born in Echuca in 1984, and lived with his mother until he was six years of age. At the age of six, he and his brother commenced residing with their father, their parents having already separated. His father is said to have been an individual with a short temper, and to have been physically abusive.

41. Both he and his brother were removed from their father's care by the Department of Community Services when the offender was eight years of age, and he then resumed living with his mother at his maternal grandmother's home in Wangaratta, where he remained until he was 14 years of age, at which time he left home to live in accommodation arranged through a local youth refuge, his mother having been apparently unable to cope with his rebellious behaviour, which included drug taking and being expelled from school, as a result, she evicted him.

42. A psychology report indicates that from that time until relatively recently, his social contacts were restricted to drug taking associates. His most significant intimate relationship was with a female partner who he met some two years ago. They have one child, now approximately one year of age. I accept that since her birth, he has endeavoured to do something in relation to his drug use, but from the material before me, it appears to be only in relation to his use of cannabis. It is said in the psychological report that he endeavoured to stop drug use because he wanted to be a good parent, and although there was a brief respite, he then relapsed, leading up to the commission of these offences.

43. He apparently struggled during his primary education and was placed in a special needs class in Year 7, at which time his behavioural problems commenced. He was expelled from school at the beginning of Year 8 when he attempted to hit the principal.

44. In respect of employment, he has worked in contract cleaning when he first left school, being a position organised through his mother. He maintained that employment for around 12 months, until his attendance at work was adversely affected by his daily cannabis and alcohol use. Since losing that employment, he has been largely unemployed and has relied on Centrelink benefits. His last period of employment was in relation to furniture removal shortly before his incarceration as a result of this offending.

45. He does not have any physical ailments, although he has been treated in the past with antidepressant medication on or off over the past four years. However, his adherence to that medication has been adversely impacted by his significant substance use problems. He commenced using cannabis at the age of 11, and between the ages of 14 and 16 he was drinking alcohol and using cannabis regularly. He continued using cannabis until he was approximately 23 years of age, when he then commenced using ice, initially via inhalation, but later intravenously. I accept that he has a significant problem in relation to his abuse of prohibited drugs. Ms Lucas carried out testing, which indicated that he fell within the borderline range of intellectual function, although he did not fulfil the requirements for diagnosis as having an intellectual development disability.

46. Of significance in relation to the offender's criminal history is that it appears that his current conduct in committing these offences was consistent with his previous conduct both in Victoria and New South Wales, there being multiple entries in respect of such offences as make threat to kill, recklessly cause injury, use amphetamine, criminal damage, unlawful assault, and he has spent time in custody both in Victoria and New South Wales as a result of his past offending.

47. Although his history of criminal offending in New South Wales can be regarded as limited, it does relevantly include offences such as common assault, stalk/intimidate, intent fear of physical or mental harm, enter building or land with intent to commit indictable offence, all of which are of a similar nature to the current offending. Accordingly, I am of the view that there is a significant need in relation to this offender for the sentence imposed to reflect both general and specific deterrence.

48. As I have previously indicated, the only remorse and contrition that is indicated appears to be in respect of the offence against his mother, and a plea of guilty in itself does not necessarily reflect remorse or contrition. In this matter, of course, there was an overwhelming Crown case, since the victims included his mother and her partner, who were well known to the offender. Inquiries of recent times before committing these offences to obtain assistance after the birth of his child in respect of cannabis use, is a positive sign, but in my view not a significant one, in the circumstances where the offender was a consumer of methamphetamine.

49. Indeed, the offences here are consistent with someone being significantly affected by methylamphetamine at the time of the offences. The abuse of his mother, the demands for money, and his physical assaults on her partner are all behaviour that might be anticipated in respect of someone who abuses that particular substance, and needs to find a way to finance their abuse.

50. I note, although I have not previously referred to it, that in the psychological report at para 60 it is said;

"He expressed remorse for his actions, not only in the effects his offending has had on him, but also those around him. He did not impress as being deficient in empathy".

51. The report writer provides no information as to how it is that the offender expressed remorse or contrition, although I would expect as an experienced psychologist that she understands those concepts. As I have already noted, there is only the single reference in his mother's letter to the Court. I am not able to accept in the circumstances, particularly as the offender has not given evidence allowing the Court to assess for itself any expression of remorse or contrition, that there is any acceptable evidence that the offender is genuinely remorseful or contrite, in particular in respect of the offences against Mr Pearce. As to the risk of reoffending, in my view, the risk of Mr Hand reoffending in the future must be regarded as significant, in the light of his past history of similar offending. It will not be diminished until such time as he ceases use of all prohibited drugs.

52. In respect of this matter, the s 5 threshold has clearly been passed and a sentence of imprisonment is the only appropriate result in these proceedings. I have taken into account all of the matters that I have referred to, including the utility discount, and I intend to proceed by way of an aggregate sentence.

53. I am accordingly required to indicate the sentences that would have been imposed in respect of the individual offences, in the absence of imposing an aggregate sentence. In relation to the s 112(2) offence, I have taken into account both the maximum penalty and also the standard non parole period as a guidepost. The maximum penalty indicates the seriousness with which the legislature regards such offences.

54. When sentencing in respect of that offence, I will also take into account in determining the indicative sentence, the matter contained on the Form 1, being the offence of assault occasioning actual bodily harm contrary to s 59(1).

55. In respect of the aggravated break and enter and commit serious indictable offence, and in respect of the offence on the s166 certificate of demand property with menaces contrary to s 99(1), the offender is convicted.

56. The indicative sentence in relation to the s 112(2) offence, taking into account the s 59(1) offence on the Form 1, is a non-parole period of two and a half years and an additional term of one year, giving an overall sentence of three and a half years with a two and a half year non-parole period.

57. In respect of the s 99(1) offence on the 166 certificate, the indicative sentence is one and a half years’ imprisonment. There is, in my view, a need for some accumulation, considering the different nature and different occasions on which the offending occurred.

58. Accordingly, the aggregate sentence will be a non-parole period of three years, commencing on the date of his arrest, 10 September 2018. He will be first eligible for parole on 9 September 2021. The balance of term is one year. Expressed otherwise, that is a sentence of four years’ imprisonment with a three year non parole period. Accordingly, it will be apparent that I have not found special circumstances warranting any reduction from the statutory relationship of the non-parole period to the balance of term.

59. In my view, the one year period of parole provided is a significant period, and such a period as will assist him if at the time of his parole he genuinely desires to cease the use of prohibited drugs, and otherwise obtain any ongoing treatment in relation to anger management.

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Decision last updated: 01 July 2020