R v Hawker
[2020] ACTSC 79
•9 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hawker |
Citation: | [2020] ACTSC 79 |
Hearing Date: | 9 April 2020 |
DecisionDate: | 9 April 2020 |
Before: | Mossop J |
Decision: | See [30] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – theft – assault occasioning actual bodily harm – substantial criminal history – polysubstance abuse – poor prospects of rehabilitation – public health emergency – sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Criminal Code 2002 (ACT), ss 308, 309 |
Parties: | The Queen (Crown) Mark Hawker (Offender) |
Representation: | Counsel M Lucero (Crown) T Kelliher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 26 of 2019 |
MOSSOP J:
Introduction
The offender, Mark Hawker, pleaded guilty in the Supreme Court to the following charges:
a) one count of theft contrary to s 308 of the Criminal Code 2002 (ACT), the maximum penalty being 10 years’ imprisonment, 1000 penalty units or both; and
b) one count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), the maximum penalty being five years’ imprisonment.
Facts
The facts are agreed and are as follows. The offender and the victim, who I will refer to as NH, had been friends since 2015. At the time of the offences, NH was 72 years old and suffered mobility issues associated with a motor vehicle accident.
On 15 September 2018 the offender attended NH’s residence to watch the ruby league grand final. At the end of the game the offender asked NH if he could borrow $150, without specifying what the money was for. NH told the offender he did not have any money to give him, despite having $1250 in his wallet. The conversation between the offender and NH then moved on.
The offender subsequently became aggressive towards NH, and NH feared that the offender was going to do something and backed away. Whilst moving backwards, NH fell over. The offender stood over NH and punched him in the face. NH felt immediate pain.
A short time later, but while NH was still on the floor, the offender reached into NH’s rear trouser pocket and took out his wallet. His wallet contained $1250 in cash, three St George bank cards, some personal papers and a photograph of his mother. The offender took the cash, and subsequently discarded the wallet and left the residence.
The Director of Public Prosecutions seeks a reparation order in relation to the $1250 stolen by the offender.
Objective seriousness
The assault does not appear to have been premeditated. The assault involved a one punch blow to the area around the victim’s eye. It caused a mildly displaced fracture of the base of his eye socket, some minor bleeding and bruising. It was committed on a man in his 70s by a man in his 40s. The blow was struck after the victim had fallen over and hence when the victim was less able to defend himself. A blow to the head of a 72‑year-old man carried with it a risk of harm much greater than that in fact suffered. The offender was on conditional liberty at the time of the offending. That was because he was on bail in relation to charges of common assault committed on 17 June 2018. The offending is in the mid range of objective seriousness for this offence.
So far as the theft is concerned, it involved a significant sum of money and took place in the circumstances of the assault but, having regard to the unlimited nature of the offence of theft, is below the mid range of objective seriousness for this offence.
Subjective circumstances
The personal circumstances of the offender are disclosed in a pre-sentence report dated 19 August 2019, an updated pre-sentence report dated 7 April 2020 and a psychologist’s report prepared for the purposes of Magistrates Court proceedings in December 2019.
The offender was born in Queensland and identifies as Aboriginal. He is 46 years old. His parents separated when he was very young and he has had no contact with his biological father. He has had limited contact with other family members. He does have phone contact with his mother who resides in Bega. He reported domestic violence between his mother and stepfather and abuse by his stepfather, who he reported had issues with alcohol. He left home at the age of 15. He has resided in different states throughout Australia. That is reflected in his criminal history which involves offending in the ACT, NSW, Queensland, South Australia and Victoria. He has a 23-year-old daughter with whom he has irregular contact.
He has no fixed address. He hopes to move to Eden in NSW once his court matters are finalised.
He has had sporadic periods of paid employment. He had a period when he “went straight” about four years ago, working for the company responsible for the light rail in the ACT. His most recent period of employment was as a traffic controller in early 2018. He is otherwise reliant upon government benefits.
He reported that most of his peer networks over the course of his life have engaged in antisocial behaviour.
He has an extensive history of polysubstance abuse. He identified heroin as his drug of choice. He recognised the correlation between his offending behaviour and illicit substance use. Whilst in custody he has had a monthly buprenorphine injection. He has been employed in the kitchen at the Alexander Maconochie Centre (AMC) since February 2020.
He has contracted a blood-borne virus and is a smoker.
The author of the psychologist’s report recorded the offender as saying that he would not complete drug and alcohol rehabilitation in the future. He said that “someone like me in rehab, that’s just a house of ready-made customers”.
The psychologist’s report concludes:
“Mr Hawker’s diagnosis accord[ing] to DSM 5 criteria is most consistent with antisocial personality disorder, specifically failure to conform to social norms with respect to lawful behaviours, irritability, consistent irresponsibility, impulsivity and lack of remorse as indicated by being indifferent to or rationalizing having hurt or mistreated another person.”
Criminal history
The offender has an extensive criminal history, mainly in NSW. In NSW his record since 1995 includes breaking and entering, assault, larceny, destroying or damaging property, failing to appear, possessing a prohibited drug, supplying a prohibited drug and demanding property with menaces. He has at least 10 convictions for assaults of various kinds. He has been sentenced to multiple sentences of imprisonment.
In Queensland he has convictions for relatively minor offences between 2000 and 2001. In South Australia he has two minor convictions from 2003. In Victoria he has four convictions from 2003.
In the ACT his offending relates to the period 2018 and 2019. He has driving offences, including driving with a prescribed drug in his oral fluid, and two convictions for common assault. He also has a conviction for failing to appear. He spent time in custody as a result of these offences between October and December 2019.
Plea of guilty
The original indictment dated 1 March 2019 charged the offender with robbery, contrary to s 309 of the Criminal Code. On 20 August 2019 a new indictment charged the offender with one count of robbery, and in the alternative, one count of occasioning actual bodily harm. On 19 February 2020 the current indictment was signed. On 20 February 2020 the offender pleaded guilty to the charges on this indictment. The plea was entered the week before his trial was listed for the second time. The plea of guilty followed negotiation between the parties. There had previously been a criminal case conference in May 2019. The plea of guilty, at the stage that it was made, warrants a reduction of 10% in the sentence that would otherwise be imposed.
Time in custody
On 3 October 2018 the offender was charged and placed on bail. He failed to appear at his trial in September 2019 and a warrant was issued.
Following his arrest he was granted bail, but that was revoked on 17 September 2019 and he has been in custody since that date. However, not all of this time in custody is attributable solely to these offences, as he served part of that period as sentences of imprisonment for other offences. The total time in custody attributable solely to these offences prior to today is 83 days. This gives a backdate date of 17 January 2020.
Consideration
I accept that the consequences of his difficult childhood are likely to be lifelong and must be taken into account in sentencing him. As an adult he has over many years engaged in criminal activity associated with his drug abuse. There appear to be few influences in his life which would lead him towards rehabilitation and lawful conduct. That is certainly reflected in the comments made to the psychologist which I have referred to earlier. There are only very limited periods in his adult life where he has remained free of offending conduct. The offender’s criminal history means that he can be afforded little leniency in relation to this offending. His history also means that there is a significant need for specific deterrence and protection of the community. The offending is such that only a custodial sentence is appropriate. Only a sentence of full-time imprisonment is appropriate.
The offender’s solicitor tendered evidence concerning the Commonwealth government’s advice relating to the COVID-19 coronavirus pandemic, as well as the restrictions upon visitors imposed in response to that pandemic at the AMC. He also tendered a document providing a factual basis for the submission that was made that, as an Aboriginal person in custody and being 46 years old rather than any younger, the offender was at greater risk from any COVID-19 outbreak at the prison. He submitted that the offender had a greater risk of suffering ill effects from the virus, that the conditions of custody would be more onerous as a result of the response of prison authorities to the pandemic and that he would suffer a state of uncertainty and suspense as a result of being incarcerated during the pandemic. All of these factors, it was submitted, should be taken into account by the court so as to moderate the sentence imposed.
I take into account the existence of the pandemic and the potential for it to make the conditions in the prison substantially more restrictive and hence more onerous than they might otherwise be. Plainly enough, an inadequately controlled outbreak of such a virus within a prison environment would be potentially devastating, particularly to a middle-aged smoker with a pre-existing medical condition such as the offender. I note however that at present there are no identified cases of coronavirus at the prison and that it is likely that the prison authorities will take very significant measures to reduce the risk of any outbreak or to manage any outbreak that does occur. Further, the restrictions on visitors are likely, based on the evidence before me, to be of lesser significance for the offender than for other prisoners who have family connections which would otherwise result in visitors being an important part of their life in prison.
Contrary to the submission made on behalf of the offender, I do not consider that the cessation of referrals to the drug and alcohol sentencing list has disadvantaged the offender. Having regard to his expressed attitude to rehabilitation, I do not consider that he would have been an appropriate candidate for such a referral.
On the charge of assault occasioning actual bodily harm, the starting point is a sentence of imprisonment of 14 months reduced to 12 months and 15 days on account of the plea of guilty. On the charge of theft, the starting point is a sentence of imprisonment of 28 months reduced to 25 months on account of the plea of guilty. The sentence for the theft will be cumulative as to 14 months on the sentence for assault occasioning actual bodily harm. The aggregate sentence is therefore a sentence of 26 months and 15 days, or two years, two months and 15 days. The non-parole period will be 18 months. The sentence will be backdated to 17 January 2020.
A reparation order will be made in relation to the $1250 stolen.
Orders
The orders of the Court are:
1. On the charge of assault occasioning actual bodily harm (SCCAN 2019/3759) the offender is convicted and sentenced to imprisonment for a period of 12 months and 15 days commencing on 17 January 2020 and ending on 31 January 2021.
2. On the charge of theft (SCCAN 2020/26) the offender is convicted and sentenced to imprisonment for a period of 25 months commencing on 1 March 2020 and ending on 31 March 2022.
3. The non-parole period commences on 17 January 2020 and ends on 16 July 2021.
4. In respect to the charge of theft (SCCAN 2020/26) the offender is required to make reparation to [NH] by payment of $1250 within 12 months. Such payment shall be made to the Registrar of the Court to be paid to [NH] at the address recorded on the bench sheet for the hearing on 9 April 2020.
5. I note that the Crown will file a Notice Declining to Proceed in relation to the charge of robbery (CC2019/11950).
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 22 April 2020 |
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