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R v Hardes

R v Hardes

Case [2020] NSWDC 191 12 May 2020

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District Court

New South Wales

Medium Neutral Citation: R v Hardes [2020] NSWDC 191
Hearing dates: 20 March 2020
Decision date: 12 May 2020
Jurisdiction: Criminal
Before: O’Brien AM DCJ
Decision:
Aggregate term of imprisonment of 7 years. Non-parole period of 4 years and 6 months. See order [66].

Catchwords: SENTENCING – Reasons for judgment – enter dwelling with intent to commit robbery in circumstances of special aggravation being armed and in company – wounding with intent to cause grievous bodily harm – supply prohibited drug greater than indictable quantity – use of knife by co-offender – different levels of participation by offender and co-offender in joint criminal enterprise – role of offender in drug supply – methylamphetamine and its effect on social disadvantage - distinction between subjective cases of co-offenders – history of mental illness – parity – totality – special circumstances – risk of institutionalisation – aggregate sentence.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Fahs v R [2007] NSWCCA 26
Jackson v R [2010] NSWCCA 162
Johnson v R, Moody v R [2010] NSWCCA 124
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
R v Dickinson [2004] NSWCCA 457
R v MacDonell (2002) 128 A Crim R 44
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Morabito (1992) 62 A Crim R 82
R v Parente [2017] NSWCCA 284
R v Watt (unrep, 2/4/97, NSWCCA)
Williams v R [2010] NSWCCA 15
Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited: Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants: Report – Volume 4, Professor Dan Howard SC, January 2020.
Category: Sentence
Parties: Nicholas Hardes (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr T Warr (for the offender)
Mr T Pickering (for Director of Public Prosecutions)
Solicitors:
Toomey Defence Lawyers (for the offender)

File Number(s): 2017/00360037; 2017/00176865

Judgment

Introduction

The offender Nicholas Hardes is to be sentenced in respect of four offences. The first is an offence of enter dwelling with intent to commit a serious indictable offence being robbery in circumstances of special aggravation, that is he was armed with a dangerous weapon and in company. This offence occurred on 11 June 2017 and is contrary to section 111 (3) of the Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment. When initially arraigned before a jury panel in the District Court at Nowra on 21 October 2019 the offender entered a plea of not guilty. On the following day, and after some discussions had taken place between the Crown and his legal representatives, he was re-arraigned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hardes

Details

AGLC: R v Hardes [2020] NSWDC 191
Case: [2020] NSWDC 191
Decision Date: 12 May 2020

CaseChat Overview and Summary

In the case of R v Hardes, the appellant was found guilty of various offences including entering a dwelling with intent to commit robbery, wounding with intent to cause grievous bodily harm, and supplying a prohibited drug in a quantity greater than indictable. The dispute arose from a joint criminal enterprise involving the appellant and a co-offender. The case was heard in the Supreme Court of Victoria, where the appellant sought a review of the aggregate sentence imposed. The primary legal issues before the court were the appropriate weight to give to the different levels of participation in the joint criminal enterprise, the role of the appellant in the drug supply, and the consideration of special circumstances in sentencing, including the appellant’s history of mental illness and the risk of institutionalisation.

The court examined the appellant's level of participation, which was less significant than that of the co-offender, who used a knife during the commission of the crimes. The court acknowledged the appellant’s role in supplying methylamphetamine, which, while significant, was not the primary aggravating factor. The court also considered the impact of methylamphetamine on the appellant’s social disadvantage and the need for parity in sentencing between the appellant and the co-offender. The totality principle was applied to ensure the overall sentence reflected the cumulative seriousness of the offences. Special circumstances, including the appellant's history of mental illness and the risk of institutionalisation, were also taken into account. These factors, alongside the need for deterrence and denunciation, led the court to impose an aggregate sentence.

The court concluded that the aggregate term of imprisonment should be seven years, with a non-parole period of four years and six months. This sentence aimed to balance the need for punishment and deterrence with the consideration of the appellant's personal circumstances and the principle of parity. The final orders of the court were detailed in order [66], confirming the aggregate sentence imposed.

Orders

Orders of the court

Aggregate term of imprisonment of 7 years. Non-parole period of 4 years and 6 months. See order [66].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Hardes [2020] NSWDC 191

Cases Citing This Decision

No citing cases yet.

Cases Cited

Parente v R [2017] NSWCCA 284
Citation 1 (Para 35)

…Consistent with what the Court of Criminal Appeal said in R v Parente [2017] NSWCCA 284, sentencing in drug supply cases must be approached having regard to general sentencing principles, including that a sentence of imprisonment should not be imposed unless having considered all other alternatives, no other penalty…
Bugmy v The Queen [2013] HCA 37
Citation 2 (Para 49)

…prived background to which I have earlier made reference. This is consistent with what the High Court said in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. As part of the instinctive synthesis I will have regard to these factors.…
Muldrock v The Queen [2011] HCA 39
Citation 3 (Para 8)

…In Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 , the High Court held that the standard non-parole period applicable to an offence is not to be treated as if it were a necessary starting point or the only important end point in framing a sentence for such an offence. Reference to it is part of the task whereby…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 4 (Para 49)

…s weight and may result in the imposition of a lesser sentence. That this is so is well-settled: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. His mental condition impacts upon my assessment of his overall moral culpability, as does his socially impoverished, disadvantaged and deprived backgr…
Jackson v R [2010] NSWCCA 162
Citation 5 (Para 58)

…e faces (if that risk has not yet materialised), arising from the lengthy periods of time that he has spent incarcerated during his life: Jackson v R [2010] NSWCCA 162. I note the offender is still only 36 years old. He may be able to enjoy a long pro social life on his release, particularly if he can deal with his…
Johnson v R [2010] NSWCCA 124
Citation 6 (Para 27)

…ective criminality, and an assessment of their respective culpability will depend on their various levels of participation. In Johnson v R, Moody v R [2010] NSWCCA 124, Simpson J observed at [11];…
WILLIAMS v R [2010] NSWCCA 15
Citation 7 (Para 22)

…A (2) (n) of the Crimes (Sentencing Procedure) Act , as explained by the Court of Criminal Appeal in Fahs v R [2007] NSWCCA 26 and Williams v R [2010] NSWCCA 15, then I accept it. That is not however to say that there was no planning at all.…
Fahs v R [2007] NSWCCA 26
Citation 8 (Para 22)

…r within the meaning of section 21A (2) (n) of the Crimes (Sentencing Procedure) Act , as explained by the Court of Criminal Appeal in Fahs v R [2007] NSWCCA 26 and Williams v R [2010] NSWCCA 15, then I accept it. That is not however to say that there was no planning at all.…
R v McNaughton [2006] NSWCCA 242
Citation 9 (Para 42)

…The offenders record of prior convictions does not impact upon my assessment of the objective seriousness of his offending: R v McNaughton [2006] NSWCCA 242: (2006) 66 NSWLR 566, at [24]. It is nevertheless relevant and important to note that the culpability of the offender, for all of the criminal behaviour for whi…
Markarian v The Queen [2005] HCA 25
Citation 10 (Para 8)

…t determines the appropriate sentence in the process of intuitive or instinctive synthesis discussed by McHugh J in Markarian v R (2005) 228 CLR 357; [2005] HCA 25. This means, amongst other things, that sentencing is not a matter of precise calculation. In the determination of sentence for an offence where ther…
R v Dickinson [2004] NSWCCA 457
Citation 11 (Para 26)

…s a feature that aggravates the seriousness of an offence, involving as it does an increased level of danger and harm being occasioned: R v Dickinson [2004] NSWCCA 457 at [23]. Any assault involving the use of a knife is one that calls for the imposition of a significant sentence as a matter of both general and spec…
Wong v The Queen [2001] HCA 64
Citation 12 (Para 38)

…gh, and critically, the role played by the offender and the overall circumstances of the offending. In Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64, at [31] per Gleeson CJ and [64] per Gaudron, Gummow and Hayne JJ, the High Court observed that a proper assessment of an offender’s actual role in t…
Lowe v R [1984] HCA 46
Citation 13

…] NSWCCA 26 Jackson v R [2010] NSWCCA 162 Johnson v R, Moody v R [2010] NSWCCA 124 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 R v Dickinson [2004] NSWCCA 457 R v MacDonell (2002) 128 A Crim R 44 R v McNaughton…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 7)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 4)

Medium Neutral Citation:	R v Hardes [2020] NSWDC 191
Hearing dates:	20 March 2020
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	O’Brien AM DCJ
Decision:	Aggregate term of imprisonment of 7 years. Non-parole period of 4 years and 6 months. See order [66].
Catchwords:	SENTENCING – Reasons for judgment – enter dwelling with intent to commit robbery in circumstances of special aggravation being armed and in company – wounding with intent to cause grievous bodily harm – supply prohibited drug greater than indictable quantity – use of knife by co-offender – different levels of participation by offender and co-offender in joint criminal enterprise – role of offender in drug supply – methylamphetamine and its effect on social disadvantage - distinction between subjective cases of co-offenders – history of mental illness – parity – totality – special circumstances – risk of institutionalisation – aggregate sentence.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Fahs v R [2007] NSWCCA 26 Jackson v R [2010] NSWCCA 162 Johnson v R, Moody v R [2010] NSWCCA 124 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 R v Dickinson [2004] NSWCCA 457 R v MacDonell (2002) 128 A Crim R 44 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Morabito (1992) 62 A Crim R 82 R v Parente [2017] NSWCCA 284 R v Watt (unrep, 2/4/97, NSWCCA) Williams v R [2010] NSWCCA 15 Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited:	Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants: Report – Volume 4, Professor Dan Howard SC, January 2020.
Category:	Sentence
Parties:	Nicholas Hardes (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr T Warr (for the offender) Mr T Pickering (for Director of Public Prosecutions) Solicitors: Toomey Defence Lawyers (for the offender)
File Number(s):	2017/00360037; 2017/00176865