R v Hardy

[2021] NSWDC 781

District Court

New South Wales

Medium Neutral Citation:

R v Hardy [2021] NSWDC 781

Hearing dates:

10/12/21

Date of orders:

10/12/21

Decision date:

10 December 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years 3 months with a NPP of 2 years 10 months (10/8/21-9/6/24).

I find special circumstances.

I have applied a 25 percent discount for the plea.

The indicatives sentences are:

H78783624/1 Break enter and steal – 2 years 6 months

H78906528/1 Break enter and steal – 2 years 4 months

H77261026/1 Break enter and steal – 2 years 6 months

H77627766/1 Break and enter with intent – 2 years 2 months.

Re the breach of the CCO – I find the breach proved but take no further action.

I defer the hearing of the compensation application.

Catchwords:

Crime – Sentence – Break enter and steal – Break enter with intent to steal

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Ponfield (1999) 48 NSWLR 327

Category:

Sentence

Parties:

NSW DPP – Crown
Nathan Hardy - Offender

Representation:

Ms L Robeau for Crown
Mr T Jones for Offender

File Number(s):

2020/00356321
2020/00356356
2020/00222976
2021/00045300
2021/00082492

sentence

1. Mr Nathan Hardy is for sentence in relation to four offences, three of them being offences under s 112 of the Crimes Act 1900 of break enter and steal for which the maximum penalty is 14 years and one offence under s 113 of break and enter with intent to steal, the maximum penalty for which is ten years. No standard non-parole periods are specified for either of those offences.

2. The maximum penalty, of course, is an important guidepost in the sentencing exercise to which I have had regard.

3. It is agreed that Mr Hardy pleaded guilty at an early stage and therefore is entitled to a 25% discount by reason of the utilitarian value of that plea. Also I have before me an application for breach proceedings concerning a Community Correction Order that was imposed in the Local Court on 10 September 2020 and it is agreed that that order has been breached.

FACTS

4. The facts of the break and enter offences before the Court are as follow: At the time of the offences the facts note that the offender was staying in public housing at Wesley Mission Housing in Ashfield. The first offence in time involved premises at Loch Street, Campsie which were part of a complex consisting of town houses. A Ms Elachi lived in one of the units which was on the second floor although it was very close to the ground floor. She lived there alone.

5. On 9 December 2020 she locked and secured the doors and windows before leaving at about 5.30pm. She returned at about 10.50pm and found her front door unlocked and the lounge restricting access from behind the front door. When she entered she noticed the glass window to the balcony had been smashed and that there was a rock in the middle of the lounge room floor. Her cabinet drawers in the kitchen were open and appeared to have been rummaged through. She went upstairs and saw that the three bedrooms had also been ransacked and items tossed around.

6. She was understandably frightened and immediately contacted police. The following items of jewellery were recorded missing to an estimated value of about $10,000:

• Four 18 carat gold rings

• Five pairs of 18 carat gold earrings and

• Three 18 carat necklaces with crucifixes

7. Police arrived about midnight, took photographs and various samples including forensic examinations of the rock that was found in the lounge room and subsequently a trace DNA from that rock was matched to the offender.

8. The second offence in time occurred on 10 December 2020 at some premises in Stanley Street, Burwood which was the home of a Ms Huynh and her partner who lived on the ground floor. On that day on 10 December 2020 Ms Huynh and her partner had locked the doors before leaving for work at about 8 o’clock in the morning. Ms Huynh returned home at about 9.40pm and found both sliding doors open, one of them cracked. She went inside and saw that her bedroom had been ransacked with clothes and miscellaneous boxes thrown onto the bed including her jewellery box which was usually on the vanity.

9. She called police who attended and collected fingerprints from external glass sliding doors, a tilt window and also from the surface of an iPad box. On 22 December a fingerprint that was found on the iPad box was matched to the offender. Ms Huynh reported to police that the following items to the approximate value of $1,800 were missing:

• A gold filled cross necklace

• Two Swarovski bracelets

• Two gold plated rings, and

• Several fake gold necklaces and rings.

10. The third offence in time occurred on 11 December 2020 at premises in Angelo Street, Burwood which were occupied by Mr Zhao. He lived in a unit on the ground floor and he also had a CCTV system installed. He was away from the home between the 10th and 12 December 2020. He returned to the premises on Saturday evening 12 December to find both his bedroom and the living room ransacked and many of his wife’s belongings moved around. He also found his garden shears on the lounge room sofa.

11. Upon checking his belongings he found the following items were missing:

• A Canon digital SLR camera worth about $1,500

• A Radia silver watch said to be valued at about $2,500

• Items of his wife’s jewellery valued at $2,000 to $3,000, and

• Three wallets, two of which had $500 AUD and $2,000 of Chinese currency

12. CCTV from the verandah of the premises captured a number of things happening between 8.49pm and 9.15pm on 11 December 2020. At about 8.49pm a male with short hair wearing a light coloured hoodie and track suit pants was seen to walk onto the balcony and then take something from his pocket and try to manipulate the lock, but when it did not open he was then seen to walk away and return with the set of garden shears that belonged to the occupant after which he was seen to crouch down and use the shears to pry open the sliding door which he successfully did. A few minutes later, he was seen to come out of the premises holding the camera which he placed on the balcony floor after which he returned inside. A few minutes later, he came out with more items in a bag which he then used to conceal the camera and about ten or so minutes later he was seen to come back out with a shopping bag full of various items, close the door and leave by jumping over the balcony.

13. This CCTV footage was provided to police who noted the various things that I have just been through and I note the facts agree that the Canon camera was recovered subsequently on 16 December 2020 when police conducted a search of the offender’s room at Wesley Mission Housing.

14. The fourth offence before the Court occurred on 13 December 2020 at premises in Dulwich Hill which involved an apartment, occupied by Mr and Mrs Vo who had lived there for about eight years. On 12 December around 4pm they, that is Mr and Mrs Vo were lying down on their lounge apparently having a sleep when shortly afterwards about 10 to 6 that evening Mrs Vo who was sleeping on the lounge woke up to hear a cutting sound coming from the backyard area.

15. She then heard a loud bang and clattering sound and saw an arm come through the kitchen window which caused her to say, “What the fuck?”, which apparently woke up her husband, Mr Vo. Both of the victims then looked out the window to the back yard and saw a man’s head peering into the window. Mr Vo then shouted out, “What the fuck?” and the male ducked down. Mrs Vo went to the open balcony door and had direct eye contact with the male for about 2 seconds after which he jumped the balcony rail and ran away.

16. She gave a description of him which was consistent with the description of the offender. Mr Vo ran outside and chased the man while Mrs Vo called police. When Mr Vo returned to the house he noticed that the flyscreen had been cut from the bottom right hand corner and had been popped out of the window frame.

17. Police officers attended and did a CCTV canvass of the surrounds and found two cameras which were of relevance, from which they noted that at about 6.05pm a man, who it is agreed was the offender, was seen outside Mr and Mrs Vo’s premises running onto the driveway and then along the footpath.

18. On 14 December 2020 the facts record that Crime Scene Officers attended and recovered a number of fingerprints from the sliding glass window pane and window sill and the next day one of the fingerprints from the kitchen window was found to match a fingerprint of this offender.

19. On 15 December 2020 the offender was in custody at Burwood police station on matters unrelated to the ones before the Court when one of the police officers noticed a striking similarity between him and the CCTV material from the premises at Burwood of Mr Zhao. As a result, that officer asked the offender about the CCTV material and showed it to him to which he said, “It looks similar to me but it’s definitely not me”.

20. Police subsequently recovered from the offender a key with a keyring labelled “Room 5” on it and after certain investigations it was on 16 December 2020 that police went to the Wesley Mission Accommodation at Ashfield which had been occupied by the offender. There they found some items of clothing that were similar to some of the clothing seen on the CCTV and also a Canon digital SLR camera which, as I understand it, is agreed to have been the camera that that belonged to Mr Zhao.

21. The offender was arrested when he went back to the Wesley Mission Housing on 16 December 2020 and made a number of admissions. Firstly, that he had sold the jewellery and stuff that he had stolen from the premises at Burwood and Dulwich Hill but would rather not say where he sold it. He told police that with the money that he received he used it to move to another place in Ashfield, that he had dumped the wallets that he had been taken, and when asked how he normally broke into houses he just said, “However I can".

22. He was further interviewed and said he had no memory of the incidents, and denied the allegations but did tell police that at the time he was homeless, that he had exchanged items for money to help him move, that he had bought the camera, although he said he had no idea where it came from. He told police also that he can’t believe that he has put himself in this situation. He was subsequently charged with the break and enter of Ms Huynh’s residence, that being the residence in Stanley Street, Burwood and he was subsequently charged with the break and enter at Ms Elachi’s residence, and then the remaining charges that I have already made reference to. Those are in summary the agreed facts on which he is to be sentenced.

OBJECTIVE SERIOUSNESS

23. It is necessary, of course, that I make an assessment of the objective seriousness of the offences before the Court.

24. As has been said in many cases, offences involving breaking and entering, and breaking entering and stealing, are not just offences involving property but offences against people. That is because people are entitled to expect that their homes should remain safe and secure and there is an obvious sense of invasion and loss of security when offences of this kind are committed.

25. Sometimes, of course, items of great monetary value are taken, but on other occasions, although the items may not have much monetary value, they are of very significant sentimental value. It is those sorts of concerns that have led to comments such as those made by the Court of Criminal Appeal in the well-known decision of Ponfield (1999) 48 NSWLR 327 about the considerable concerns of the community about break and enter type offences. The Court in Ponfield made various observations about matters to be considered in terms of the seriousness of these types of offences, some of them going to objective seriousness, others going to subjective factors although I note that essentially most of the matters referred to in Ponfield are now effectively set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. I have had regard to not only the comments in Ponfield but also the various provisions in s 21A.

26. Clearly deterrence, both personal and general, are ordinarily matters that must be given considerable weight, subject to some comments that I will make about that a little bit later. In assessing the objective seriousness of the four offences before the Court I take into account the fact that they appear to have been unsophisticated and rather opportunistic especially given that no gloves or face coverings were used.

27. None of the offences involved gratuitous vandalism or significant damage although there was some damage to which I will make reference in just a moment. I also take into account in assessing the objective seriousness of the offences the fact that the serious indictable offence that is relied upon is one of larceny which is at the lowest end of the range of offences that are capable of falling within s 112 and s 113.

28. In relation to the objective seriousness of the offence of 9 December 2020, that being the offence at the Elachi premises, it was not sophisticated, it involved little or no planning, there was however some damage, namely the rock thrown through the window. There was also some ransacking of the premises, namely the drawers that were emptied, and there was considerable value in the items that were taken, namely around about $10,000. I assess this offence as being around the midrange.

29. As to the second offence in time on 10 December 2020 at the premises of Ms Huynh, again not sophisticated, no real planning, some damage involved, namely a cracked window to one of the sliding doors. There was also some ransacking with boxes and other items thrown around. The items taken were of considerable value, approximately $1,800. I would assess this as being near, just below but near the midrange.

30. The objective seriousness of the next offence in time, 11 December 2020 at the Zhao premises, again not sophisticated, a minimal amount of planning and by referring to minimal amount I am referring to the fact that the offender was seen on CCTV to take something from his pocket which he attempted to use unsuccessfully to open the door. So he had armed himself with something that he was going to try to use for that purpose before ultimately using garden shears to pry open the sliding door. Again significant value, total of approximately 6 to $7,000 of property taken. The bedroom and living room were ransacked. I assess that offence as being around the midrange.

31. As to the fourth offence, which is the 13 December 2020 break and enter with intent to steal involving the victims Mr and Mrs Vo, that offence was not sophisticated. It involved minimal planning but it appears that the offender was armed with some sort of cutting instrument which he used to cut the flyscreen. So it had minimal planning. The offence is aggravated, it seems to me because the occupants were unfortunately confronted by the offender, which was no doubt a very disturbing experience for them. I assess that offence as being around the midrange of objective seriousness.

32. Although not relevant to objective seriousness, the offending in these matters is aggravated by reason that the offender was subject to conditional liberty at the time because he was subject to a parole order for similar types of offences and also subject to a Community Correction Order that had been imposed only a short period before these offences. He also has a considerable record for similar types of offence to those that are before the Court.

SUBJECTIVE MATTERS

33. Turning then to subjective matters, he is 46 years of age now. He has a fairly lengthy criminal history including numerous offences involving breaking and entering and an extensive history of serving terms of imprisonment.

34. The offender’s background is summarised in the Medico-Legal Report of psychiatrist Dr Matthews. She reports that prior to the offences the offender was homeless and effectively living on the streets, unemployed but receiving social security payments. The offender told Dr Matthews that prior to the offences he was completing residential drug and alcohol rehabilitation but that this ended prematurely due to a positive urine sample, a matter which I note he disputes. He reported that after leaving the facility he lived “rough” on the streets for several months and commenced using various prescription drugs. He also told Dr Matthews that he has little recollection of the offences or of his motivation for committing them.

35. The report of Dr Matthews’ describes a very difficult childhood which the offender described to her as “sad and frightening” in which he witnessed his father being regularly violent towards his mother leading to frequent separations and frequent changes of accommodation and schooling for him. The offender also has a history of mental health problems from around age 11 when he was assessed for depression, and was prescribed medication. The offender also confirmed to Dr Matthews that he commenced at a very young age to commit offences which resulted in a large part of perhaps most of his later childhood and adolescence being spent in juvenile detention, and it was in this context that he was subjected to sexual abuse by a number of people.

36. I note that the offender gave evidence in the proceedings today and affirmed the truth and accuracy of the information given to Dr Matthews by him about his background and I note that none of that is challenged by the Crown. There is also a number of other reports that have been placed before the Court detailing the very unfortunate background that has affected Mr Hardy particularly as a young person which has led, no doubt, to his ongoing problems with abuse of drugs. I will return to that evidence in a moment.

37. In terms of remorse it seems to me there is some level of remorse in the sense that the offender has said in his evidence today that effectively he wished he had not committed the offences and also by reason of the agreed matter that he has through his lawyer in recent times raised the desire to make some sort of financial compensation to the victims. As I say, I therefore accept there is some level of remorse although it is of reduced weight by reason that there was really no direct statement by the offender in his evidence today of the potential impact on the victims of these offences other than the offer to pay compensation to which I have made reference already.

REHABILITATION/RISK

38. In terms of prospects of rehabilitation and future risk it is difficult to form any positive view about his prospects. That is because of his long criminal history, his lack of supports, lack of work skills and long-term drug problems. There are also the findings by Dr Matthews of evidence of borderline/antisocial personality disorder and substance abuse disorder.

39. He has also been the subject of some recorded breaches of prison discipline earlier this year involving refusing or failing a drug sample and another offence of fail prescribed drug test which is noted as proven but dismissed and another instance of create or possess prohibited goods. The offender has given certain explanations for those matters, and effectively disputes them. He has also disputes the suggestion that he was discharged from the rehabilitation service by reason of, as he put it, “a dirty urine”. I have difficulty accepting his evidence to the effect that all of these instances involve mistakes. Even though it may well be that one of them, for instance the proven but dismissed matter, is a matter that I should give little weight to, but ultimately it is difficult for me to put any significant weight on his denials of having had contaminated urines.

40. Having regard to all of the evidence I cannot conclude that his prospects of rehabilitation are good. At the very best they might be described as “guarded” and regrettably he does present a considerable future risk of offending.

BUGMY CONSIDERATIONS

41. The offender’s background, to which I have made reference, involved significant domestic violence and serious disruption to his living arrangements and education as well as his subsequent experiences of being sexually abused. Those are, of course, highly relevant matters for consideration in this sentencing exercise.

42. As was noted in the report of Associate Professor Michael Robertson of December 2018 the offender experienced “gross social and emotional deprivation as a child”. In my view the evidence clearly supports a conclusion that the principles discussed by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened. As was noted in Bugmy at para 40:

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

43. And at para 44:

“Because 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 decision.

However, this is not to suggest…that an offender’s deprived background has the same mitigatory relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.

An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

44. I note that in that quotation there is reference to a person acting violently and it is not suggested that the charges before the Court involved violence. nonetheless the principle still applies, it seems to me, that where an offender such as Mr Hardy appears to be a person who has difficulty controlling impulses to commit offences such as those before the Court which involved breaking and entering offences, it is nonetheless necessary for me to take into account and give significant weight to the importance of protecting the community.

45. I am satisfied based on the offender’s background of deprivation and abuse that his moral culpability is reduced to a significant degree. It is reduced, it seems to me, because, due to his background, he has not been able to develop the sort of coping strategies to control impulses to avoid drug abuse, to engage in appropriate relationships, to find employment and generally to stay out of trouble. It seems to me that he is not a strong candidate for general deterrence or personal deterrence although those matters still remain relevant.

46. On the other hand, however, and although his background reduces his moral culpability, it does, as his criminal history demonstrates, mean that he presents a significant and ongoing risk to the community. It is therefore important that the sentence that I impose does not ignore this important factor.

47. I note that in making my earlier observations about the offender’s prospects of rehabilitation and future risk that I have taken into account his evidence today to the effect that he is now aged 46, nearly 47 and has two children, and that his time, as he puts it, is running out and that he hopes to get out and go to rehabilitation. He agreed that doing rehabilitation was key to getting himself onto a better track in life and he said that that was what he aims to do and I accept that he does have that intention. Regrettably, however, the experience of the Courts is that many offenders have such an intention but lack the skills to follow through with it. I truly hope that that is not the case with Mr Hardy but on the evidence before me I am unable to come to any conclusion about his prospects and future risk other than what I have already expressed.

SPECIAL CRICUMSTANCES

48. In terms of setting the sentence I do intend to make some adjustment by way of a finding of special circumstances based upon the desirability of a considerable period of supervision on release and also based on the risk of institutionalisation.

DETERMINATION

49. In determining the sentence I have had regard to the principles set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that a term of imprisonment is the only appropriate sentence in relation to each of the four offences. I intend to impose an aggregate sentence. I am therefore required to set out the indicative sentences for each of the four offences.

50. Mr Hardy these are what are called “indicative sentences”. These are not the sentence that I will impose. I will make that clear at the end. The indicative sentences after the plea of guilty discount of 25% are as follows:

51. For the break and enter and steal offence of 9 December 2020, two years six months. These are all head sentences, of course. For the break and enter and steal offence of 10 December 2020, two years four months. For the break enter and steal offence of 11 December 2020, two years six months, and for the break enter with intent, the offence of 13 December 2020, two years two months.

TOTALITY

52. I have had regard to totality principles which importantly require that I step back from the various indicative sentences that I have nominated and determine what overall sentence should be imposed having regard to the various purposes of sentencing and the desirability or I should say importance of avoiding a sentence which might crush any prospects of rehabilitation.

53. I have also had regard to the need and this is related to the totality principle, of course, for accumulation or concurrency in the various sentences. It seems to me that there does need to be some degree of accumulation given that we are speaking about four separate instances of criminality although having regard to totality principles, the level of accumulation will not be great.

54. Having regard to all of those matters, I impose a head sentence of four years three months with a non-parole period of two years ten months. I note that the offender’s parole was revoked effective from 11 December 2020 and that therefore from that date he has been serving the remainder of a 12 year head sentence that was imposed on the 24 May 2013. I note that that parole was revoked solely because of these offences. In my view it is appropriate to backdate the current sentence to some, although a limited degree. I intend to backdate the sentence approximately four months.

55. I therefore order that the sentence is to date from 10 August 2021 which means that the head sentence will expire on 9 November 2025 and the non-parole period on 9 June 2024.

56. In relation to Community Correction Order of 10 September 2020 I revoke that order but I take no other action.

57. As I have said in relation to the application for compensation order if there can be some agreed position on that then that can be sent through to my associate and I could potentially make the order in chambers but if necessary the matter might have to be listed before me either this year or next.

Decision last updated: 07 April 2022