R v Hardy

[2005] NSWCCA 294

CITATION:	R v Hardy [2005] NSWCCA 294
HEARING DATE(S):	11/02/05
JUDGMENT DATE:	30 August 2005
JUDGMENT OF:	James J at 1; Hidden J at 2; Bell J at 20
DECISION:	Leave granted, appeal allowed: sentence of six years confirmed - non-parole period set aside - substitute non-parole period of three and a half years to date from 30 October 2002.

CATCHWORDS:	CRIMINAL LAW - Application for leave to appeal against sentence - armed robbery - special circumstances - sentence erroneously passed under amended s44, Crimes (Sentencing Procedure) Act - approach to sentencing under amended section when special circumstances found
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Sentencing Act 1989 (repealed) Criminal Appeal Act 1912
CASES CITED:	R v Cramp [2004] NSWCCA 264 R v Way (2004) 60 NSWLR 168 R v Moffitt (1990) 20 NSWLR 114 R v Henry & Ors (1999) 46 NSWLR 346
PARTIES:	Regina (respondent) Jason Hardy (applicant)
FILE NUMBER(S):	CCA 2004/2656
COUNSEL:	R Hulme SC (applicant) P Ingram (Crown)
SOLICITORS:	Ross Hill & Associates (applicant) S Kavanagh (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0422
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ

2656/2004

James J
Hidden J
Bell J

Tuesday 30 August 2005

REGINA v Jason Anthony HARDY

Judgment

1 JAMES J: I agree with Hidden J.

2 HIDDEN J: The applicant, Jason Anthony Hardy, pleaded guilty in the District Court to a charge of robbery while armed with a offensive weapon, an offence under s97(1) of the Crimes Act which carries a maximum sentence of twenty years imprisonment. On 16 April 2004 he was sentenced to imprisonment for six years, with a non-parole period of four and a half years, to date from 30 October 2002. (That is the effect of the sentencing order, but it will be necessary later to examine the way in which it was expressed.) He seeks leave to appeal against that sentence.

3 The facts of the offence can be stated shortly. At about 6am on Sunday, 18 March 2001 the appellant and another man gained entry to a home at Vaucluse, occupied by an elderly couple. The male of that couple was in poor health, apparently suffering from dementia. The applicant and his co-offender had their faces covered and one of them had a weapon which looked like a gun. They entered the room occupied by the female occupant, who was seventy-five years old. Her handbag was taken and they left the premises. It was later found nearby and none of its contents were missing.

4 The next day police located a sample of hair in the yard of the home. DNA testing yielded a result consistent with the profile of the applicant. He was spoken to by police about the matter on 22 October 2002, while he was in custody serving sentences for other matters. The commencement date of the present sentence, 30 October 2002, was the day on which he became eligible for release as a result of those sentences.

Subjective case

5 The applicant was twenty-six years old at the time of the offence and is now thirty-one. He has a lengthy criminal record, mainly for offences of dishonesty, commencing with an entry in the Children’s Court when he was only thirteen years old. However, none of those offences was as serious as the present offence and, indeed, he had not previously been dealt with for a robbery of any kind. Since 1996 his convictions have led to terms of imprisonment, such that between the early part of that year and the middle of 2001 he had been at liberty only for two discrete periods of about six months. Since 22 July 2001 he has been in custody continuously.

6 Before his Honour was a pre-sentence report, which sketched the applicant’s background. He was a member of a large family. His parents separated when he was thirteen, terminating a relationship during which on numerous occasions he had witnessed his father, while drunk, assaulting his mother. Nevertheless, it appears that his relationship with his father improved in later years. He has a history of dependence upon a variety of drugs since the age of fifteen, and his criminal record is consistent with that addiction. It was the need to feed his dependence which led to the present offence.

7 In recent years he has developed a heart condition known as severe mitral regurgitation, resulting from his intravenous drug use. He is on medication and may have to undergo surgery. This appears to have afforded him a new motivation to attempt to deal with his drug dependence. The author of the pre-sentence report had this to say:

Whilst in prison, Mr Hardy has commenced treatment under the methadone maintenance programme and has reportedly abstained from further drug use. He is willing to accept a direction upon his release into the community, that he attend and complete a residential rehabilitation programme of at least 6 months duration. He is able to work with drug and alcohol counsellors whilst in custody to make these arrangements prior to his release.
His motivation to address his poly substance dependency on this occasion appears high. The change in his attitude appears to be largely attributed to his health problems, the seriousness of which have appeared to serve as a wake up call for the offender to change his behaviour and seek appropriate intensive treatment for his addictions.

8 His plea of guilty was entered late, and the sentencing judge recognised it by a ten percent reduction of the sentence he would otherwise have passed. No complaint is made in this application about that approach.

9 Senior counsel for the applicant submitted that his Honour had fallen into error in two respects in his approach to his sentencing task and that, in any event, the sentence is manifestly excessive. As I am satisfied that one of those errors has been established, so that this Court is free to examine the question of sentence afresh, I find it unnecessary to consider the other grounds of the application.

10 The offence having been committed in 2001, the specification of the sentence was governed by s44 of the Crimes (Sentencing Procedure) Act as it stood before it was repealed and replaced in 2002. The replaced section applies to offences committed on or after 1 February 2003. The old section required a court firstly, to set the term of the sentence and, secondly, to set the non-parole period. The current section reverses that order, requiring the court to set the non-parole period first and then the balance of the term of the sentence.

11 It is clear that his Honour assumed that the section in its present form was applicable (although he appears to have used terms derived from the repealed Sentencing Act 1989). He first set “a minimum term” of four and a half years, commencing on the date to which I have referred, and then specified “an additional one year and six months parole period.” In many cases this might be an error of no practical significance: cf R v Cramp [2004] NSWCCA 264, per Spigelman CJ at [39]. However, that cannot be said of this case.

12 Not surprisingly, it had been submitted on behalf of the applicant in the sentence proceedings that the state of his health and his desire for drug rehabilitation constituted special circumstances. In the course of his remarks, immediately before passing sentence, his Honour said:

Section 44 now requires, as far as one can tell without guidance from the Court of Criminal Appeal, the fixation of a non-parole period, bearing in mind all the matters which I have adumbrated as being the minimum time during which the prisoner ought to be in custody and there being, as there seems there can scarcely be now, in those circumstances, any application that I should find special circumstances which would, in a practical sense, have the effect of prolonging the sentence rather than shortening the non-parole period. It would be appropriate to fix a one-third additional term on top of the minimum.

13 As it happens, guidance was to be forthcoming from the Court of Criminal Appeal, but not until about a month after his Honour had sentenced the applicant. In R v Way (2004) 60 NSWLR 168, the Court had occasion to examine the provision for special circumstances in s44(2) as it now stands. After a reference in another context to R v Moffitt (1990) 20 NSWLR 114, a case dealing with the equivalent provision in the repealed Sentencing Act, their Honours said at [111] – [113]:

The view that was taken in R v Moffitt in relation to the former s5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole.
While there are separate considerations involved for s44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously.
To this end the sentencing principles approved in R v Moffitt (at 117 – 118, 121 – 122 and 134 – 135) and also in R v GDR (1994) 35 NSWLR 376 at 381 – 383 will provide guidance.

14 It will be seen that his Honour was in error even if the specification of the sentence had been governed by s44 in its present form. It was clearly an impermissible approach under the section in its original form. His Honour should have determined the appropriate sentence and then considered whether there were special circumstances warranting a departure from the statutory proportion between sentence and non-parole period, bearing in mind that the non-parole period itself had to be sufficient to meet the demands of retribution and deterrence.

15 The Crown prosecutor in this Court accepted that his Honour was in error, but argued that both the sentence and the non-parole period were appropriate and, in particular, that the non-parole period affords appropriate recognition to the applicant’s prospects of rehabilitation. As to that matter, he referred to evidence calling into question whether the applicant had entirely abstained from drug use while under the methadone maintenance program in prison. Accordingly, he submitted, both the sentence and the non-parole period should remain undisturbed in the proper application of s6(3) of the Criminal Appeal Act.

16 In my view, the head sentence of six years should stand. Having regard to the objective facts of the offence and the age and antecedents of the applicant, this case is significantly more serious than the typical case the subject of the guideline in R v Henry & Ors (1999) 46 NSWLR 346, per Spigelman CJ at [161] – [165]. As his Honour rightly observed, that case “dealt with a profile much different from that presented by this prisoner”.

17 However, I would reduce the non-parole period. I do not find evidence that the applicant has not remained drug free during the methadone maintenance program unduly discouraging, given his long history of drug abuse. What is clear is that his drug dependence and his offending are linked and that now, in his early maturity and faced with a significant health problem, he is more motivated than ever before to deal with his addiction. Hopefully, significant progress can be made while he is in custody. However, upon his release, he would still need a lengthy period under supervision and subject to the sanction of parole to adopt a law-abiding lifestyle in the community. I do not consider the period of eighteen months which the present sentence would allow to be sufficient for that purpose. Particularly is that so because, if he were released at the expiration of the non-parole period set by his Honour, it would only be after many years of virtually unbroken custody.

18 I would reduce the non-parole period to three and a half years which, in my view, would remain sufficient to mark the applicant’s criminality. On the question of re-sentence generally I have had regard to such aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act as are relevant, which are apparent from my summary of the circumstances of the offence and the subjective material.

19 Accordingly, I would grant leave to appeal and allow the appeal. I would confirm the sentence of six years, dating from 30 October 2002. However, I would quash the non-parole period set by his Honour and would substitute a period of three and a half years, also to date from 30 October 2002. The applicant will be eligible for release on parole on 29 April 2006.

20 BELL J: I agree with Hidden J.

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