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R v Hawkins

R v Hawkins

Case [2015] ACTSC 333 19 October 2015

Jurisdiction

Sentencing

Burglary

Going Equipped for Theft

Attempted Theft

Theft

Criminal History

Youth of the Offender

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Hawkins
Citation:	[2015] ACTSC 333
Hearing Date(s):	14 October 2015
DecisionDate:	19 October 2015
Before:	Refshauge ACJ
Decision:	1. Christopher Hawkins be convicted of burglary on 27 July 2014; 2. Christopher Hawkins be sentenced to 20 months imprisonment to commence on 28 July 2014; 3. Christopher Hawkins be convicted of going equipped for theft on 27 July 2014; 4. Christopher Hawkins be sentenced to 6 months imprisonment to commence on 28 January 2016, to be cumulative as to 4 months on the sentence for burglary; 5. Christopher Hawkins be convicted of attempting to take someone else’s motor vehicle dishonestly without consent on 27 July 2014; 6. Christopher Hawkins be sentenced to 12 months imprisonment to commence on 28 March 2016, to be cumulative as 8 months on the sentence for going equipped for theft; 7. Christopher Hawkins be convicted of theft on 27 July 2014; 8. Christopher Hawkins be sentenced to 12 months imprisonment to commence on 28 March 2016 to be wholly concurrent on the sentence for attempting to take a motor vehicle. 9. That is to be a total sentence of 2 years and 8 months; 10. A non-parole period of 1 year and 10 months be set, to begin on 28 July 2014 and end on 27 May 2016.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – burglary – going equipped for theft – attempting to take a motor vehicle dishonestly without consent of its owner – theft – childhood disadvantage – drug and alcohol use – childhood use of drugs and alcohol – significant criminal history – youth of the offender
Legislation Cited:	Crimes (Sentencing Act) (2005) (ACT), ss 7, 33, 63, Pt 4.4 Magistrates Court Act1930 (ACT), s 88A, Pt 3.5 Criminal Code (2002) (ACT), ss 44, 308, 311, 315(1), 318, 324
Cases Cited:	Attorney‑General (SA) v Tichy (1982) 30 SASR 84 Bugmy v The Queen (2013) 87 ALJR 1022 Douglas v The Queen (1995) 56 FCR 465 Fusimalohi v The Queen [2012] ACTCA 49 Hogan v Hinch (2011) 243 CLR 506 Pearce v The Queen (1998) 194 CLR 610 R v Campbell [2010] ACTCA 20 R v Hayes [1984] 1 NSWLR 740 R v Henry (1999) 46 NSWLR 364 R v Mills [1998] 4 VR 235 R v Ogilvie [2015] ACTSC 296
Parties:	The Queen (Crown) Christopher Hawkins (Defendant)
Representation:	Counsel Mr D Sahu-Khan (Crown) Mr R Davies (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Number(s):	SCC 274 of 2014 SCC 276 of 2014

REFSHAUGE ACJ:

There is no doubt that the present widespread use of illicit drugs is a serious problem throughout the community. The violence that is often perpetrated as a result is a serious problem for the community, as is the dishonesty committed by drug users to find the means to feed their habit.

This is not to ignore the very serious effects the…

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 Hawkins

Details

AGLC: R v Hawkins [2015] ACTSC 333
Case: [2015] ACTSC 333
Decision Date: 19 October 2015

CaseChat Overview and Summary

In the matter of R v Hawkins, the court was required to determine the criminal liability of the defendant, Christopher Hawkins, for multiple offences including burglary, going equipped for theft, attempting to take a motor vehicle dishonestly without consent, and theft. The facts of the case revealed that the defendant had a history of criminal behaviour, significant drug and alcohol use, and substantial childhood disadvantage. These factors were considered in the sentencing process.

The legal issues before the court were the assessment of the defendant’s culpability for each offence, the appropriate sentences for each offence, and the determination of the cumulative and concurrent nature of the sentences. The court had to balance the severity of the crimes with the defendant's background and the need for rehabilitation. The court also needed to ensure that the sentences were proportionate and that they served the purposes of punishment, deterrence, and rehabilitation.

The court found the defendant guilty of all charges. It considered the defendant's background, including his childhood disadvantage, drug and alcohol use, and significant criminal history, but emphasised the seriousness of the offences. The court imposed sentences for each offence, ensuring they were cumulative and concurrent as appropriate, resulting in a total sentence of 2 years and 8 months. The non-parole period was set at 1 year and 10 months, reflecting a balance between punishment and the potential for rehabilitation.

Orders

Orders of the court

1. Christopher Hawkins be convicted of burglary on 27 July 2014;

2. Christopher Hawkins be sentenced to 20 months imprisonment to commence on 28 July 2014;

3. Christopher Hawkins be convicted of going equipped for theft on 27 July 2014;

4. Christopher Hawkins be sentenced to 6 months imprisonment to commence on 28 January 2016, to be cumulative as to 4 months on the sentence for burglary;

5. Christopher Hawkins be convicted of attempting to take someone else’s motor vehicle dishonestly without consent on 27 July 2014;

6. Christopher Hawkins be sentenced to 12 months imprisonment to commence on 28 March 2016, to be cumulative as 8 months on the sentence for going equipped for theft;

7. Christopher Hawkins be convicted of theft on 27 July 2014;

8. Christopher Hawkins be sentenced to 12 months imprisonment to commence on 28 March 2016 to be wholly concurrent on the sentence for attempting to take a motor vehicle.

9. That is to be a total sentence of 2 years and 8 months;

10. A non-parole period of 1 year and 10 months be set, to begin on 28 July 2014 and end on 27 May 2016.

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

AGLC Citation

R v Hawkins [2015] ACTSC 333

Most Recent Citation

R v Roux (No 2) [2015] ACTSC 361

Cases citing this decision · 24 of 24 shown

Director of Public Prosecutions v Lucas
[2023] ACTSC 335

…465 McLeod v The Queen [2018] ACTCA 59 Lloyd v The Queen [2022] NSWCCA 18 R v Crawford (No 1) [2020] ACTSC 245 R v Elphick [2021] ACTSC 9 R v Hawkins [2015] ACTSC 333 R v Horne [2017] ACTSC R v John [2017] ACTSC 144 R v Massey (No 1) [2020] ACTSC 256 R v McHughes (No 3) [2023] ACTSC 344 R v Weldon [2021] ATCSC 348…
R v Dawson
[2022] ACTSC 64 Para 1

…rs including the amount and value of property taken (both monetary and sentimental) ( R v John [2017] ACTSC 144 at [44] – [45]; The Queen v Hawkins [2015] ACTSC 333 at [48] ( Hawkins )), where the theft occurred, the motivation behind the conduct, the level of inconvenience caused ( Hawkins at [49] – [50]) and the…
R v Weldon
[2021] ACTSC 348 Para 1

…trespass. There is, of course, a wider effect on the community, when more burglaries of insured premises increase premiums generally: see R v Hawkins [2015] ACTSC 333 at [48]-[50].…
R v Snow
[2021] ACTSC 342 Para 1

…nce, where the occupant is indemnified, inconvenience in making claims, but also the effect on premiums for the occupant and more widely: R v Hawkins [2015] ACTSC 333 at [48]–[50].…
R v Massey (No 3)
[2021] ACTSC 156

…R v Di Bitonto [2016] ACTSC 280 R v Eichmann [2019] ACTSC 212 R v Hawkins [2015] ACTSC 333…
R v Slattery
[2021] ACTSC 154 Para 1

…on. Nevertheless, the rehabilitation that, on this occasion, has been achieved by Mr Slattery is to be given weight in the sentence: see R v Hawkins [2015] ACTSC 333 at [53]; R v Loulanting [2015] ACTSC 172 at [38]. It must not, of course, overwhelm other purposes of punishment, but it is an important matter that…
R v Novakovic (a.k.a. Noland) (No 1)
[2021] ACTSC 62

…[2005] HCA 25; 228 CLR 357 R v Crawford (No 1) [2020] ACTSC 245 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Forrest (No 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Simonds v The Queen [2013] ACTCA 13…
R v Mathews
[2020] ACTSC 364

…R v Crawford (No 1) [2020] ACTSC 245 R v Forrest (No 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Horan [2020] ACTSC 189 R v Horne [2017] ACTSC 36 R v Kaihea [2020] ACTSC 17 R v Mathews [2019] ACTSC 262 R v McMahon [2014] ACTSC 280 R v McMahon (No 2) [2017] ACTSC 299 R v Pahl [2017] ACTSC 68 R v Sila [2015]…
R v Tonna (No 1)
[2020] ACTSC 360 Para 1

…programs in custody, are relevant and point to the appropriateness of the relevance in this case of giving weight to rehabilitation (see R v Hawkins [2015] ACTSC 333 and R v Loulanting [2015] ACTSC 172 at [38]).…
R v Bessant
[2020] ACTSC 365

…chime v Sindel [2009] ACTSC 162 R v Crawford (No 1) [2020] ACTSC 245 R v Ellis (1993) 68 A Crim R 449 R v Forrest (No. 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v John [2017] ACTSC 144 R v Lockwood [2018] ACTSC 288 R v McMahon [2014] ACTSC 280 R v Thorne [2016] ACTS…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…2]. Other matters include the level of inconvenience caused and whether items of particular sentimental or similar value are taken: see R v Hawkins [2015] ACTSC 333 at [48].) The value of the property stolen is also relevant: see R v McMahon (No 2) [2017] ACTSC 299 at [52].…
R v BC
[2019] ACTSC 233 Para 1

…less, it was submitted that the offending is still associated with a “violation of the privacy and security of the occupants” (citing R v Hawkins [2015] ACTSC 333). In addition, it was submitted that the circumstances of the offending indicate it was not a spontaneous offence.…
R v Hawkins
[2019] ACTSC 103 Para 1

…counsel for the offender drew the Court’s attention to the summation of the offender’s subjective circumstances by Refshauge ACJ in R v Hawkins [2015] ACTSC 333. As it was noted by Murrell CJ in Hawkins of the offender:…
R v Hawkins
[2019] ACTSC 10

…R v Dennis [2018] ACTSC 239 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 107; 346 NSWLR 367 R v King [2017] ACTSC 252 R v Lock [2016] ACTSC 319 R v Oeti [2019] ACTSC 229 R v Percival [2018] ACTSC 230 R v Sampson [2018] ACTSC 59 R v Williams [2018] ACTSC 325…
R v Dugdale
[2017] ACTSC 203 Para 1

…In looking at the different matters listed by the Crown, I have gained most assistance from this offender’s previous sentences and from R v Hawkins [2015] ACTSC 333 and Sampson v De Haan [2016] ACTSC 327.…
R v Forrest (No 2)
[2017] ACTSC 83 Para 48

…18. In R v Hawkins [2015] ACTSC 333 at [48]-[51], I explained the gravity of the offences of burglary and theft, which are a serious problem for our community. People should be able to feel safe in their homes and know that their property, for which they may well have worked hard to acquire, and sometimes which has…
R v Horne
[2017] ACTSC 36 Para 1

…In R v Hawkins [2015] ACTSC 333 at [48]-[51], I explained the gravity of the offences of burglary and theft, which are a serious problem for our community. People should be able to feel safe in their homes and know that their property, for which they may well have worked hard to acquire, and sometimes which has mor…
R v Clarkson
[2017] ACTSC 9 Para 1

…have regard to s 33(1)(za) of the Sentencing Act . Some of the cases I have considered include Fusimalohi v The Queen [2012] ACTCA 49 and R v Hawkins [2015] ACTSC 333. The Chief Justice made these relevant observations in the former case, but at first instance ( R v Fusimalohi [2015] ACTSC 220 ) at [23]:…
R v Booth
[2016] ACTSC 365 Para 1

…(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). Some of the cases I have considered include Fusimalohi v The Queen [2012] ACTCA 49 and R v Hawkins [2015] ACTSC 333.…
R v Ware
[2016] ACTSC 264 Para 1

…reet CJ pointed out in R v Hayes [1984] 1 NSWLR 740 at 742, must be dealt with by courts with a strong element of general deterrence. See R v Hawkins [2015] ACTSC 333 at [48]-[51].…
R v Kelly
[2016] ACTSC 281 Para 1

…In R v Hawkins [2015] ACTSC 333 at [48]-[51], I explained the gravity of offences of burglary and dishonesty, which are a serious blight on our community. People work hard for the property that they acquire and which, sometimes, has more than monetary value to them. In this case, the property may well have had part…
R v Ngerengere (No 2)
[2016] ACTSC 155 Para 1

…the community. These impacts have been summarised by Street CJ in R v Hayes [1984] 1 NSWLR 740 at 742. I further summarise the effects in R v Hawkins [2015] ACTSC 333 at [48]-[51] as follows:…
The Queen v Blundell
[2015] ACTSC 383 Para 1

…t causes to our community. Theft deprives people of goods which they have often worked hard to acquire or which have special value. See R v Hawkins [2015] ACTSC 333 [48]-[51].…
R v Roux (No 2)
[2015] ACTSC 361 Para 1

…is, by that yard stick, a very serious offence, although by no means the most serious offence in the criminal calendar. I have set out in R v Hawkins [2015] ACTSC 333 at [48]-[51], a summary of the consequences of burglary which makes it such a serious offence. I have regard to those matters.…

View all 24 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Ogilvie
[2015] ACTSC 296 Para 1

…In R v Ogilvie [2015] ACTSC 296 at [28], I noted that the Court of Appeal, in a number of cases, had made a distinction between burglaries of commercial premises and burglaries of residential premises. It seems to me that one can make too many fine distinctions but it is important to ensure that there is a proper p…
Bugmy v The Queen
[2013] HCA 37 Para 1

…ch he was brought up, he could realistically have avoided his descent into drugs and crime. That disadvantage remains with him (see Bugmy v The Queen (2013) 87 ALJR 1022 at 1032, [43]-[45]) and it does not diminish over time.…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…the principles there set out, as well as the approach to sentencing practice disclosed, and I take that into account. See also Fusimalohi v The Queen [2012] ACTCA 49.…
Hogan v Hinch
[2011] HCA 4 Para 1

…Hawkins has sought help through rehabilitation and wishes to enter the Solaris program. That is important. As French CJ pointed out in Hogan v Hinch (2011) 243 CLR 506 at 537; [32], achieved rehabilitation is the surest guarantee of community protection from crime.…
R v Henry
[1999] NSWCA 111 Para 1

…See also R v Henry (1999) 46 NSWLR 364 at 397-8; [273].…
R v Wright
[1998] VSCA 84 Para 1

…Following R v Mills [1998] 4 VR 235 at 241, I held in R v Ogilvie at [41], [44] that, even after offenders turn 18, their youth is to be taken into account. This is, of course, more so when the youthful offender is a first offender, but even later, particularly with the slow development of maturity, especia…
Pearce v The Queen
[1998] HCA 57 Para 1

…There are multiple sentences to be imposed here. It is important, as stated in Pearce v The Queen (1998) 194 CLR 610, that the sentence on each offence should be a proper reflection of the culpability of the offender for it, and the seriousness of its commission. Separate sentences must be imposed for each offence, taking i…
Douglas v The Queen
[1995] FCA 411 Para 1

…should have regard to the very young age at which Mr Hawkins started to use drugs. As the Full Court of the Federal Court of Australia pointed out in Douglas v The Queen (1995) 56 FCR 465 at 470, the age of an offender when he or she becomes addicted and the degree of judgment opened to them at that age is relevant in evalua…

Legislation cited in this decision · 1

Magistrates Court Act 1930 (ACT)
88A 2 mentions (from Para 1)