R v Hawes

[2022] NSWDC 726

District Court

New South Wales

Medium Neutral Citation:

R v Hawes [2022] NSWDC 726

Hearing dates:

1 July 2022

Date of orders:

1 July 2022

Decision date:

01 July 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 3 years 3 months with a non-parole period of 1 year 10 months.

Catchwords:

CRIME – Aggravated break and enter & commit serious indictable offence – armed with an offence weapon-

SENTENCING - Relevant factors on sentence - in company - joint criminal enterprise - knife used - victim caretaker of low cost accommodation – early plea- bailed – offences on bail - background of deprivation - ill health – institutionalised offender

Legislation Cited:

Crimes Act1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

Fernando v R (1992) 76 A Crim R 58

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346

Jackson v R [2010] NSWCCA 162

Jinnette v R [2012] NSWCCA 217

Moodiev R [2020] NSWCCA 160

Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327

R v Millwood [2012] NSWCCA 2

Category:

Sentence

Parties:

Jayden Hawes (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Ms K Hill. Aboriginal Legal Service (for the offender)
Ms J Azad (for Director of Public Prosecutions)

File Number(s):

2021/00156076

sentence – ex tempore revised

Introduction

1. Jayden Hawes has been involved with the criminal justice system since he was thirteen, when he went into juvenile detention subject to a control order.

2. He grew up in Western Sydney. He is a Palawa man, but he has had little connection with Indigenous culture. Nevertheless, he has expressed a strong desire to utilise cultural links to improve his life. As, since he went into juvenile detention, and perhaps for some period before then, he has not been able to live a normal life in the community. Sadly, as he has grown older, he has spent more and more time in custody, with the gaps between release and rearrest becoming increasingly small.

3. While he was on remand for this matter an attempt was made to engage in treatment in the community. That treatment was required for his underlying and long‑standing drug addictions and also a stroke he suffered in custody. Sadly, he did not get the significant support he needed. He committed further offences and was rearrested. As he is serving those sentences there are some complications in the structure of this one.

4. The matter that brings him before the Court is an offence of aggravated armed break and enter and commit serious the indictable offence of larceny. He was in company at the time and his co-offender was carrying and used a knife to intimidate their victim. The offence pursuant to s 112(2) Crimes Act1900 carries a maximum penalty of twenty years imprisonment. And, for an offence that falls within the middle of the range, having regard only to objective factors, there is a standard non‑parole period, a standard minimum, of five years. Those figures, twenty and five, are guides to the exercise of my discretion. But I do not start with them and make proportional deductions from them.

5. The offence falls within two of Court of Criminal Appeal sentencing guideline judgments - the Henry armed robbery guideline and the Ponfield break and enter guideline: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346; Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327; Moodie v R [2020] NSWCCA 160; s.42A Crimes (Sentencing Procedure) Act 1999. Those guidelines are there to assist trial judges, but they are guidelines, not tramlines. Every offender and every offence is individual and requires the exercise of my independent discretion; taking into account the objective circumstances of the offence and the personal circumstances of the offender for sentence.

Agreed Facts

6. The agreed facts before the Court indicate that at 7am on 25 May 2021 two men entered a guest house in Kembla Street, Wollongong. The guest house is for those on low incomes or social security.

7. They went to the residence of the caretaker and engaged him in conversation. Soon the conversation took a darker turn. The co‑offender produced a knife and said, “Give me your money or I’m going to stab you.” A demand was made for his wallet. The victim said, “I’ll give it to you but put the knife away.”

8. As the co-offender continued to say, “I’ll stab you, I’ll stab you.” This offender said, “Don’t forget I’ve got a knife too.” The victim turned to him and said, “Just tell him to pack it away.” Hawes told the co‑offender to put the knife away; and he complied.

9. At that point, the victim who had been sat on the ground went to the drawer where he kept his wallet. The co-offender produced the knife again. Feared he was going to be stabbed the victim again asked again of Hawes to tell him to put the knife away. He also handed over his wallet. Money was removed from it by the co-offender. He took $6,000. The victim asked that they leave the wallet and the cards in it. The offenders did not take the wallet and cards.

10. Of the $6,000 taken, $4,000 had been collected by the victim from tenants of the residence, $2,000 belonged to the victim. Other residents found out what was going on and chased them from the premises.

11. There is CCTV at the premises. It captured images of both offenders. Hawes has distinctive tattoos. it was not long before he was arrested. A DNA profile and fingerprints matching Hawes’ were subsequently found.

Objective seriousness

12. The offence itself was a serious example of its type. A man was confronted at his workplace which was also his home.

13. The crime was planned and but unsophisticated. I know the premises; they are very close to the court. The CCTV camera is obvious. Hawes made only a rudimentary attempt to disguise himself, but this was not enough, given his extensive tattoos. A knife was used by the co‑offender and threats were made to use that knife. A person who provides a service to others by caring for low-income accommodation was subject to quite significant threats.

14. The victim was threatened in his place of work; which is also his home. The offence went on for a relatively long period during. While the breaking was less serious than many other cases, $6,000 is not an unsubstantial quantity.

15. Hawes did attempt to deescalate the threat made by his co-offender. And the victim turned to him to exercise some control over the co-offender. But the offence occurred in a home, and there was violence, matters that aggravate the objective seriousness of the matter.

Other relevant maters

16. Hawes was on bail at the time of this offence for a breach apprehended violence order charge. He was arrested for this offence on 31 May 2021. On 23 August 2021 he received Supreme Court bail.

17. On 31 August 2021 he was arrested for an offence of police pursuit and driving while not licensed. He was subsequently sentenced to sixteen months imprisonment with a non-parole period of eight months to commence on 31 August 2021 and expire on 30 December 2022. He was entitled to be released to parole on 30 April 2022. During the course of that sentence his bail was revoked for this matter.

18. I take into account that he was given Supreme Court bail so that he could deal with a serious health issue. He had had a stroke in custody and wanted to attempt to address a long-term addiction to illicit drugs. I am not punishing him for failing that regard. He has punished himself by:

1. Doing things that caused the second sentence and,

2. Interrupting his progress to rehabilitation.

19. Other matters that aggravate the sentence I have to impose include his record of prior convictions. They were for crimes that were not as serious as this one, but still serious crimes. And as I have noted he was on conditional liberty at the time.

Subjective case

20. It is accepted that a custodial sentence of some length has to be imposed.

21. I am assisted by a helpful report from Ms Edwige, a forensic psychologist. Although Hawes did not give evidence, most of the material in the report is uncontroversial. It appears to be a professional report based upon the information provided to her, and what other evidence she could glean. She does not simply parrot matters put forward by the offender; with one exception.

22. That exception is where she reports Hawes is “extremely remorseful” for what happened. There is no evidence of remorse before me. There is evidence of regret; as he said to Ms Edwige, “I know I have a drug problem and I need help with my drug addiction.” But I cannot find any evidence of his understanding the potential harm that was caused his victim by being confronted by two men, one of whom threatened him with a knife, and the psychological damage that that confrontation might have caused.

23. No empathy was shown. However, over his short life Hawes has shown little understanding of the problems that he himself faces. He has trouble caring for himself, let alone caring about others. I do not hold that fact against him, but he does not get the benefit of displayed remorse.

24. He has however entered an early plea of guilty and I must reduce the otherwise appropriate sentence by 25% to take that early plea into account.

25. It would appear from the material before me that he has become institutionalised, but the number of misconduct matters on his record means that he is not serving his time in custody easy.

26. He expresses a desire to change his life, to return to his family, some of whom are here today. He is a father, and his mother is caring for his child. He has a lot to live for, but he has effectively wasted the last ten years of his life by committing crimes and spending too much time in custody.

27. Ms Edwige sets out his family history. He did receive support from his parents when he was young. It would appear that when young he was diagnosed with an autism spectrum disorder. That disorder significantly impacted on his ability to regulate his behaviour, emotions, and exercise good judgment. It would appear that condition and those problems continue to this day.

28. Following his parents’ separation, when he was about twelve, the underlying disorder was exacerbated by a number of other factors, in particular his gravitation to antisocial peer groups in the area where he was living in Western Sydney. He was subject to that negative peer influence.

29. Ms Edwige says that people on autistic spectrum have a strong desire to establish friendships without a complete or realistic idea of what friendship involves. He was led by and associated with others when he was too young to make rational choices. He involved himself in alcohol, drugs and criminality. He was too young and insufficiently equipped to understand the implications and consequences of using illicit substances.

30. He told Ms Edwidge he was “trying to fit in,” but he was trying to fit in with a group of people who did not engage in appropriate social community life, but were abusers of illicit drugs and committed crimes against the community to support themselves and obtain money to get those drugs.

31. Once addicted it is very hard to overcome an addiction. His pattern of behaviour, was reinforced, not broken, by time in custody. Hawes went to adult gaol when he was very young and in recent years, he has spent more time in gaol than in the community. This history is not unusual. If the only people you know are antisocial peers and people you have met while in juvenile detention and then adult gaol, on releases you may continue to associate with them and use illicit drugs and commit crime.

32. Hawes has a daughter but his partner, I understand, has also spent time in gaol and the child is being raised by his mother.

33. His underlying mental condition had an influence on his drug use. One matter that might have deterred most people from involvement in crime is the fact that while he is in custody, he suffered a stroke on 23 June 2021. He was initially, as is often the case, provided with paracetamol, that being the only painkiller available within the gaols. Soon after his release he was admitted to hospital and a proper diagnosis made. Although he has recovered, to suffer a multiple right temporal lobe and thalamus infarcts when so young indicates that (at least so far as my limited knowledge is concerned) there is the possibility of those conditions reoccurring.

34. While obviously Community Corrections did what they could at the time, he will be at risk because of that condition for the rest of his life. When he is in custody, he is not in a position to take himself to an emergency department or even to a chemist to get painkilling medication. He is totally reliant upon someone calling Justice Health to provide services to him in a rapid manner. Sometimes they do, sometimes they do not.

35. He has served his sentence during the pandemic subject to the restrictions and lockdowns, now uncontroversial known to be placed on prisoners. He has spent long periods in his cell. He has had limited access to programs. He can put his name down for drug and alcohol treatment but who knows when he will be able to access it. It is clear that he will need a lot of assistance engaging in drug and alcohol programs in custody and in the community.

Submissions

36. Ms Hill, who appears on Hawes’ behalf, has provided comprehensive submissions. She suggests that the sentence be structured so that time can be made available while on parole to engage in full time residential rehabilitation. She asks that I make an order that he be assessed for the Compulsory Drug Treatment program. Sadly, while that program would seem to be ideal for Hawes, it is not available to those who commit crimes in the Illawarra. Here we are as a community discriminated against because those programs are not available to us. A matter I have raised time and time again with the appropriate authorities.

37. She urges that I do not impose a “crushing sentence.” What is or is not a crushing sentence really depends upon the perspective of the observer. The victim might think something lenient, whereas an offender might think it is crushing. The community might think it lenient; an offender might think it crushing. Appeal court might think it lenient; an offender might think it crushing.

38. Both Ms Hedwig and Ms Hill urge that time be made available while on parole so that Hawes, who wishes to engage with culturally appropriate treatment in the community, be given that opportunity.

39. Reference was made to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

40. Ms Azad who appears for the Director pointed out correctly that Bugmy was a case involving childhood deprivation. She notes that the absence of a Victim Impact Statement does not in any way mitigate. Her submissions, as usual, were comprehensive and covered all relevant matters. I have taken them into account.

Synthesis

41. I accept that when I come to consider the length of the sentence there is the real risk that the longer Hawes spends in custody the more he risks becoming attuned to life in gaol and becoming further institutionalised: Jinnette v R [2012] NSWCCA 217, at [103]: Jackson v R [2010] NSWCCA 162 at [24].

42. After many months in custody, Hawes is still on a waiting list for drug rehabilitation assistance. There is thus a risk that rehabilitation may not be properly provided to him in custody. And it is absolutely critical that what rehabilitation can be provided be appropriately structured, possibly even with something like a buprenorphine program to keep him off the drugs when he is on the program. Sadly, drugs are available both in gaol and in drug rehabilitation facilities.

43. One can never be optimistic in such matters. It is absolutely clear that if Hawes continues to use and abuse illicit drugs he will continue to return to custody.

44. This is not a case where the principles derived from the factual situations in Bugmy or Fernando v R (1992) 76 A Crim R 58 apply. But that said, a court must assess an offender individually, a court does not assess by reference to labels from other court cases. A judge has to assess the objective seriousness of the crime and matters causally related to it. All the factors that bear upon the seriousness of the crime must be taken into account.

45. A judge must consider the personal circumstances of the offender. While drug use is not an excuse to commit any crime, the circumstances which led to the drug addiction must be taken into account. So must any steps that have been or should be or could be taken to deal with that problem.

46. A judge must consider the moral culpability of the offender, which is their moral blameworthiness, for the offence. That involves a consideration of their subjective factors’ their background, their age, their maturity, their mental state and intellectual capacity. From the age of 12 Hawes had negative peers and was introduced to drug use. He spent time in juvenile detention subject to a control order at 13.

47. The negative impacts of imprisoning the young cannot be underestimated, particularly someone with the problems noted by Dr Freelander and Ms Edwige, including his autism spectrum disorder. Given how young he was when he took up drug use, before the age of rational choice, I accept that his start in life is not what might be termed as normal or advantaged, at least so far as his early teens are concerned.

48. In such circumstances anyone who examines the material before me would have to understand that he could not be said to be of equal moral responsibility with a person whose young teenage years were not so marred. It is clear that that important developmental stages were impacted upon.

49. The material before me indicates that Hawes had fewer emotional resources to guide his behavioural decisions. His actions, and all the material before me, indicate a considerable amount of immaturity. All his adult growing up has occurred in custody or while subject to drug addiction. He has had no real chance to lead a normal community life.

50. This does not mean he does not bear responsibility for what he does and what he did, he has moral responsibility for what he did. But it is a relevant consideration some limited mitigation: R v Millwood [2012] NSWCCA 2 at [69].

51. A finding of special circumstances should be made because my sentence will need to be accumulated partly on the sentence imposed in the Local Court, and because I should make allowance for Hawes to be released, if possible, to residential rehabilitation. There should is a staged approach to release. He has some prosocial family who have been here to support him, but it would seem in the past he has ignored their guidance and support. His drug use was more important.

52. I return to this offence. This offence although classified as “break and enter,” involved the confrontation of a fellow citizen at knifepoint. I do not underestimate the impact of being confronted by two men, one of whom was armed. The victim in this matter may have guessed that they were drug affected. The fact they were drug affected would have made it worse - because people on drugs do not act rationally. He was confronted by two irrational men making demands of him, one of whom was armed; for all he knew his time had come, because one stab wound can take a person’s life.

53. I am not optimistic, Mr Hawes, for your future. Past behaviour is a good indication of future behaviour. But you are very young, you have a lot of living to do. You have support from family, you hopefully will have resources made available to you. And if you take advantage of those resources and do what you can while in custody to deserve release to parole hopefully you can turn your life around.

54. I accept that for every step forward there might be a step back. But if you give up then you can look forward to spending the rest of your life in custody, and that is not something anyone would want. More importantly from a judge’s point of view return to gaol would mean that you committed further crimes, and the whole purpose of any sentencing exercise is to encourage you and others not to commit crime.

41. There must be a sentence of full-time imprisonment. There must be an appropriate punishment. I have to give effect to all of the matters that I have discussed. So just excuse me a minute while I formulate that sentence.

Orders

56. In relation to the matter before the Court you are convicted. Had it not been for your plea of guilty a sentence of four and a half years would have been imposed. The sentence will be one of three years and four months. I take into account 84 days before he received Supreme Court bail.

57. That sentence will start after you have been in custody for four months of your Local Court sentence which is 31 December 2021. I take into account the principle of totality. I make of finding of special circumstances for the reasons I have outlined in my judgment.

58. The non-parole period will be one of one year and ten months, starting on 31 December 2021. You will be eligible for consideration for release to parole on 30 October 2023. There will be a non-parole period of one year and six months which will commence on 31 October. The sentence expires on 30 April.

59. I repeat - commence the sentence 31 December, earliest possible release date 30 October next year. Balance one year, six months. Finding of special circumstances.

60. Whether you are released on 30 October next year will depend on the State Parole Authority and the work that you have been able to do. I recommend that you be release to a residential rehabilitation centre, but really depends what programs are available and what is available at the time. If you are of bad behaviour, you may not get released on 30 October, it will be for the State Parole Authority to determine.

61. A copy of Ms Edwige’s report and Dr Freelander’s report will go with the warrant. Is there anything else anyone?

62. AUDIO VISUAL LINK CONCLUDED AT 3.43PM

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Decision last updated: 28 March 2023