R v Hearn; R v Paese

[2025] NSWDC 228

District Court

New South Wales

Medium Neutral Citation:

R v Hearn; R v Paese [2025] NSWDC 228

Hearing dates:

11 April 2025

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Criminal

Before:

J Smith SC DCJ

Decision:

(1)   The offenders are convicted.

(2)   The offenders are sentenced to a term of imprisonment of 1 year and 10 months.

(3)   The sentence is to be served by way of Intensive Corrections Order.

Catchwords:

CRIME – sentencing – specially aggravated break and enter – larceny – two co-offenders and third unidentified co-offender – joint criminal enterprise – youth – mental health and disability – deprived background

Legislation Cited:

Crimes Act 1900 (NSW) s 113

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 3A, 7

Cases Cited:

Aslan v R [2014] NSWCCA 114

BAP v R [2024] NSWCCA 206

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

DB v R [2023] NSWCCA 323

DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

Lonsdale v R [2020] NSWDC 267

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Fernando (1992) 76 A Crim R 58

R v Griggs (2000) 111 A Crim R 233; [2000] NSWCCA 33

R v MJ [2023] NSWCCA 306

R v Pham and Ly (1991) 55 A Crim R 128

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

R v SS (a pseudonym) [2022] NSWCCA 258

R v Webster (unrep 15/7/91 NSWCCA)

Tammer-Spence v R [2013] NSWCCA 297

TM v R [2023] NSWCCA 185

WW v R [2023] NSWCCA 311

Younan v R [2023] NSWCCA 124

Category:

Sentence

Parties:

Taj Hearn (First Offender)
Cruise Paese (Second Offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
R El-Choufani (First Offender)
A Booker (Second Offender)

Solicitors:
Morrisons (First Offender)
McAneny Lawyers (Second Offender)
J Loosley (Crown)

File Number(s):

2024/00063460
2024/00063467

Publication restriction:

Nil

Judgment

1. The two co-offenders, Taj Hearn and Cruise Paese, pleaded guilty in the Local Court to one count of specially aggravated break and enter contrary to section 113(3) of the Crimes Act 1900. That offence has a maximum penalty of 20 years imprisonment. They both adhered to their pleas of guilty in this Court and are entitled to a discount of 25% to reflect the utilitarian value of that plea.

2. Facts of the offending appear in the statement of agreed facts which are the same in respect of each of the co-offenders. They are as follows.

3. Kallum Turner and Tara-Jane Seery lived in rental premises in Berkeley with Ms Seery’s son. At around 11.44pm on 18 February 2024 the two co-offenders and a third unidentified co-offender jumped the front fence of the premises and walked to the front door. Paese was holding an object that resembled a rifle. Hearn and Paese were unable to open the locked screen door and Hearn kicked the screen door on two occasions but was unable to move it. Paese used the rifle to smash the stained-glass panel adjacent to the front door. Mr Turner was standing behind the front door at the time. The third co-offender ran up the stairway to the rear entrance door of the premises followed by the two co-offenders. The unidentified male kicked at the locked door.

4. The adjacent kitchen window was smashed from the inside by a baseball bat wielded by Mr Turner who yelled “Get the fuck out of here now!”. The three co-offenders retreated to the front yard before Paese walked up the stairs again to the rear entrance door and used the butt of the rifle to strike and break the kitchen window panel. This made him drop the rifle which was picked up by the unidentified male. That male then pointed the rifle towards Mr Turner who continued to strike at the window panel with the baseball bat. Seeing the rifle, Mr Turner briefly moved back inside the kitchen, believing it to be a loaded rifle. Paese then broke through the rear entrance door causing the glass panels to smash. He went inside part of the sunroom followed by the unidentified male.

5. Hearn remained behind holding the black duffle bag. Hearn then went down the stairs at the rear entrance of the premises followed by the other two and the three of them ran towards the front yard leaving behind them the duffle bag and a large silver coloured kitchen knife with a 30-centimetre blade. They ran towards the front fence and fled the premises.

6. Mr Turner suffered lacerations to his arms from the broken glass from the front door when it was smashed by Paese.

7. Each of the offenders was wearing a mask covering their face as well as hoods over their head.

8. About 45 minutes later, at12.35am on 19 February 2024, Paese and Hearn were apprehended, arrested and taken into custody.

9. On the afternoon of 23 February 2024 in a conversation with his parents on the telephone Hearn said “I reckon I’m going to get out a hundred per cent mum… I’m going to get out a hundred per cent… because the reason we’re here is because of firearm charges. It wasn’t even real, so…”.

Objective seriousness

10. The objective seriousness of this offence in respect of each of the offenders is, in my opinion, identical. That is not because they did exactly the same things during the course of the offending, but rather because everything they did was part of a joint criminal enterprise. Thus, although Hearn was never in possession of the weapon that resembled the rifle, he knew that Paese had it and it was to be used for the purpose of breaking and entering and committing larceny which was the offence which he intended to commit. Otherwise, the objective seriousness of this offence is marked by the following features.

11. Firstly, as I have said, the intended serious indictable offence was to commit larceny. Secondly, there were three men and two weapons, although the second weapon being the knife does not appear to have been wielded at any time. Thirdly, there was some damage to the front glass window by the door and to the rear door and window, although Mr Turner had first smashed the window in order to frighten the offenders off. Fourthly, the dangerous weapon was an imitation rifle and so, while it was undoubtedly sufficient to cause grave concern to Mr Turner, it was otherwise not capable of inflicting any serious harm. Fifthly, the offence was at night when it was more likely that there would be people at home. Sixthly, the offending took place over no more than 2 minutes. And finally, although there was some planning given the presence of the bag and weapons as well as the masking, it was far from professional.

Aggravating factors

12. The offending by each of the co-offenders was aggravated because the offence was committed in the victim’s home. In respect of Hearn, the additional aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act was that the offence was committed while he was on conditional liberty. In October 2023 Hearn was sentenced to a conditional release order without conviction lasting from 3 October 2023 to 2 October 2025.

Victim impact statement

13. One of the victims made a victim impact statement outlining the consequences to her life caused by the offending. I have taken this into account and weighed it amongst the other factors to be considered, but I do not consider the harm described by her amounts to an aggravating factor.

Subjective case – Taj Hearn

14. There is a significant amount of material in support of Mr Hearn’s subjective case. The first is a report of psychologist Stephanie Bennett dated 20 January 2025. In her report she says that Mr Hearn was raised by parents who are supportive and actively involved in his life, that he was not exposed to domestic or neighbourhood violence or any sexual, physical or psychological abuse. However, he was diagnosed with ADHD in primary school and again in high school. This led him, amongst other things, to leave high school in year 11, and having worked for one year in carpentry, become involved in the mining industry. However, his unreliability led him to have difficulties with employment.

15. Ms Bennett was of the opinion that Mr Hearn demonstrated deficits in emotional and psychological maturity in certain domains likely due to his young developmental age combined with his ADHD. Combined, this diminished his capacity to fully comprehended the potential ramifications of his actions and to engage in deeper reflective processing about his conduct, as well as actively appraising the risks involved. She said that his youth, impulsivity due to ADHD and substance abuse rendered him more susceptible to being unduly influenced by his peers to participate in the offending behaviour without adequately thinking of the potential risks and consequences. His disinhibition by alcohol and cocaine further compromised his ability to exercise restraint and sound judgment.

16. The second important evidence comes from the report of psychologist Mierelda Wales dated 10 March 2025. Ms Wales interviewed Mr Hearn’s mother for the purposes of her assessment and obtained information from her that was consistent with his early difficulties in understanding the consequence of actions and his consistent struggle to process cause and effect relationships and realistic outcomes of his actions.

17. Ms Wales also undertook a series of cognitive and behavioural assessments with Mr Hearn and concluded that he presents a profile that suggests significant neurodiverse traits impacting his functioning across multiple domains. She said that he showed autism related traits and difficulties in social communication, rigid thinking patterns and a preference for structured, predictable interactions, although the overall criteria for an autism diagnosis were not fully met. She further said that there was a level of gullibility in Mr Hearn’s functioning that was masked by his self-assurance and grandiose schemes, and further that it was unclear whether his current behaviour and presentation could purely be attributed to autism and masking or whether a developing personality disorder was also present.

18. Since his release from custody on 1 March 2024 Mr Hearn has attended regular sessions with his treating psychiatrist, Dr Rourke, who confirmed the diagnosis of ADHD and prescribed medication to treat that condition as well as medication to alleviate the offender’s symptoms of depression and anxiety.

19. In addition, Mr Hearn has attended regular session with treating psychologist, Ms Wales. She reported that his initial insight into his diagnosis was limited, however subsequent to being medicated as prescribed by Dr Rourke she said that his presentation, engagement and insight improved significantly. She noted that since the medical intervention and counselling sessions his life had shown marked improvement across all areas. Dr Rourke supported this, saying further that the adherence to medication and psychological therapy has substantially mitigated the risk of further offending.

20. In addition to these changes the evidence shows that since his release from custody Mr Hearn has been in a committed relationship which has been a strong influence on his journey of growth, and further, having done courses to better his working skills has been working managing a small team of scaffolders and subcontractors in a business in which he is a 50% partner. His work partner describes him in a letter to the Court as being a valued team member and as contributing significantly to the growth and success of the company.

21. His parents have also written to the Court noting that their son has accepted responsibility for what he has done and is showing some insight into the impact on the victims. Importantly, they continue to show him the support that he appears to have received from them throughout his life. I note further they were in court during the sentence hearing and are here today.

22. The material before the Court also shows that Mr Hearn has taken the steps to address his use of illegal drugs, and that he suffers from an inflammatory bowel condition known as ulcerative colitis which is an autoimmune condition influenced by stressors.

23. The offender has been assessed at being at a low risk of reoffending and I accept that assessment. He is now 20 years old and was 19 years old at the time of the offence. He has a very limited criminal history. He has expressed remorse for his offending and has shown by the steps he has taken upon release to bail that he is very motivated to engage in turning his life around and progressing to full rehabilitation. He will be assisted in this by the strong prosocial support he has from his family as well as the support he has received from the psychiatrist and psychologist and drug and alcohol counselling, his partner, and the sense of purpose that full time employment will give him. It is encouraging that he has remained abstinent from illicit substances and has taken very significant steps toward a prosocial life.

24. Overall, I assess his prospects of rehabilitation as very good, especially because he is now addressing what must be the most important underlying causes of his offending, namely the impact of his ADHD and the autism traits noted by the psychologists.

Subjective case – Cruise Paese

25. Mr Paese’s upbringing was marked by violence and disadvantage. He was first exposed to his father’s violence towards his mother when he was about five years of age. At the age of ten his parents separated and he moved with his mother into a women’s shelter together with his older brother, but his father maintained contact and subjected him to verbal abuse until Mr Paese was about 15 years of age.

26. The family was poor and lacked basic needs, Mr Paese often going without clothing and occasionally without food. His class attendance at high school was poor and in primary school he was bullied because of his clothes and lack of school supplies. As is often the case, this led to him becoming a bully in high school. He was expelled in grade 7 for fighting and attended a flexible learning centre for troubled children following his expulsion.

27. In 2022 and 2023 he worked as a traffic control operator earning a decent wage and keeping out of trouble, but he lost that job and his girlfriend, leading to relapse into drugs and crime. He had started consuming alcohol and cannabis at the age of 12, MDMA at 13, methylamphetamine at 14 and finally cocaine at 18 years of age. He did this to fit in with his peers and to help forget about his hardships, ultimately developing a dependence and requiring increasing needs to achieve the same results. He used crime to fund his drug dependencies.

28. Mr Paese suffered with childhood anger and was diagnosed with post traumatic stress disorder in 2018 while in Juvenile Justice. He also struggled with bouts of depression following the domestic violence. In his report psychologist Mr McLean gave an opinion that the bullying experienced by Mr Paese likely worsened his anger problems and increased his vulnerability to forming attachments with antisocial companions. He said that the introduction of drugs and alcohol at a young age through these peers was a means to help him manage his PTSD and to fit in, but that it disturbed his development of healthy coping strategies to manage his poor mental health and developed into drug dependencies during his adolescence. This in turn led to his ultimate dependence on cocaine which was a contributing cause of the offending as it negatively impacts on the part of the brain involved in decision making and impulse control.

29. Mr McLean said however that Mr Paese’s prognosis regarding his mental health problems was fair, in that he would likely respond to treatment although his trauma would continue to impact him into the future. He further said that Mr Paese’s remorse seemed to be genuine and he spoke to the negative impact of the offending on the victims, and also that he was taking steps to avoid engaging in further crime.

30. Mr McLean outlined some recommendations for further means of addressing the situation, particularly lowering his risk of reoffending and found that there was no imminent risk of reoffending and a moderate level of effort was likely to be required to manage the risk while he was in the community.

31. Mr Paese spent eight months in custody and undertook some counselling during that time which his mother reports led to some improvement in his behavioural and anger management. Since his release to bail he has engaged in the Workforce Australia Employment Service Program which is aimed at identifying and addressing barriers to employment. He has in that time demonstrated a strong commitment to securing employment, clear goals and to have a strong sense of ambition while showing resilience in light of setbacks in his efforts to secure employment. Mr Paese has also made efforts to engage with the Illawarra Drug and Alcohol Service, although that appears not yet to have come to fruition. He has attended psychological counselling sessions since his release to bail focusing on trauma and substance abuse issues.

32. One of his ambitions is to become a personal trainer. To that end he has been working with a trainer who says that he has shown great dedication, discipline and a genuine willingness to improve himself both physically and personally. His trainer says that Mr Paese also shows a deep remorse and regret for his actions and has taken full accountability for what he has done, as well as talking about the impacts that his offending had on others. This approach has been supported by another member of the gym attended by Mr Paese, who talks about him as a bright young man willing to live his life and showing much regret for his actions.

33. Finally, Mr Paese’s mother reiterates her long and continuing support for her son and says that she is extremely proud of the progress he has made since his release. She too was in court to show her support.

34. Mr Paese has a very limited criminal history, although he did spend time in juvenile detention as I have mentioned. He is 21 years old. This has been his first time in custody. As with Mr Hearn I am satisfied that Mr Paese is genuinely remorseful for his offence. He has expressed insight into the offending and is growing to understand the reasons that he fell into this offending in the first place. While his prospects of rehabilitation are not as good as those of Mr Hearn, they must be reasonable at least given the support that he has from his mother and the clear steps he has taken since release from custody towards rehabilitation.

Synthesis

35. The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender, his or her background or mental health (see R v Fernando (1992) 76 A Crim R 58). That means the Court must have regard to and weigh all of the competing factors in order to arrive at a sentence that is proportionate to the offending. Those factors include the guideline provided by the maximum penalty for the offence, the various purposes of sentencing found in section 3A of the Crimes (Sentencing Procedure) Act, the objective seriousness of the offence, any aggravating or mitigating factors provided for in section 21A of the Act as well as the subjective features pertinent to each offender. Principles of parity may have some work to do to ensure that neither co-offender has a justifiable sense of grievance at being treated differently to similar offending.

36. There is no question here that the sentencing principles I have outlined require that a sentence of imprisonment be imposed upon each of the co offenders. That is so even though it will be the first time each of the offenders will have been sentenced to a term of imprisonment, and even though they are young men with significant personal factors weighing in their favour. The difficult question however is the length of that sentence. In order to determine that issue it is necessary to examine a number of the salient features of each of the co-offenders and the principles that have to be applied in dealing with those features.

35. The particular features that require close attention here include the youth of each of the co-offenders, their mental health issues, as well as the deprived background of Mr Paese. It is almost axiomatic that prominence is given to rehabilitation of the young in determining sentence (see R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 at [38] per Grove J, and more recently TM v R [2023] NSWCCA 185). Amongst other things, that is because rehabilitation is the best way to enhance community safety. As the CJ at CL said in KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22], this recognises the capacity of young people to reform and mould their character to conform to society’s standards. His Honour the CJ also explained that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of the young person to contribute to their breach of the law.

36. The other factors such as mental health conditions and deprived background can also have impacts upon offending. That impact is different, as explained by Yehia J in BAP v R [2024] NSWCCA 206 at [98], where her Honour said that the considerations pertaining to youth and the impact of other factors differ; however, her Honour went on to say that the interplay between them may be essential to determining the proportionate penalty.

37. These principles apply regardless of the seriousness of the offending. They have for example been applied regularly for offences of armed robbery (see for example R v Griggs (2000) 111 A Crim R 233; [2000] NSWCCA 33 and all the cases cited there) as well as in cases of murder (see R v Webster). Further, it is well recognised that there is no bright line in determining where youth does and does not apply in the circumstances of a case. It will depend on each case. The cases have recognised, for example, that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-20s (see for example the discussion by Hodgson J in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, [5]; Tammer-Spence v R [2013] NSWCCA 297 per Rothman J at [37]).

38. None of this means that the factors such as retribution and deterrence cease to be significant, particularly whereas here the offence involves violence or the threat of violence to people in their own homes (see R v Pham and Ly (1991) 55 A Crim R 128 at [135]).

39. The principles applicable to the consideration of an offender’s mental health in the context of sentencing was summarised by his Honour McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. As her Honour Simpson J explained in Aslan v R [2014] NSWCCA 114 at [34], none of these principles is absolute and that what is recognised in each case is the potential effect of mental disability (see more recently DB v R, WW v R, Younan v R, R v SS and BAP v R). As her Honour further explained, the Court frequently has to grapple with the effect on sentencing, especially with respect to serious or violent crimes such as this, of mental illness, or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community’s interests in general deterrence and that criminal conduct must be met with appropriate denunciation and retribution.

40. In my view each of the co-offenders has a mental disability which, in the case of Hearn, ADHD as well as certain aspects of autism spectrum disorder, and Paese PTSD, was causative in the commission of this offence. I consider as a result that the moral culpability of each has been reduced to some extent. I also consider that to some extent they present as an inappropriate vehicle for general deterrence, but there remains some significance to be attributed to specific deterrence. I do not however consider that a custodial sentence may weigh more heavily upon each of them.

41. As I have said in spite of these considerations there must be a term of imprisonment because of the objective gravity of the offence. However, these factors play heavily in determining the length of that sentence. Further, with reference to what Yehia J said in BAP, the interplay of the impact of the mental disability of each of the offenders with their youth is important in the sentencing process. The particular mental disabilities suffered by each of them has impacted upon their ability to mature and thus has exacerbated the characteristics of youth that are ordinarily taken into consideration in the mitigation of sentence. That is on top of the consideration that their moral culpability is lowered by reason for the same conditions.

42. Finally, in relation to Mr Paese the consequences of his disadvantaged upbringing, including exposure to violence and poverty cannot be understated. The description given by Simpson J in R v MJ [2023] NSWCCA 306 at [5] are apposite here. That is, that this background has had an inhibitory effect on the development of values, on the acquisition of a moral compass, on the capacity to make behavioural decisions in accordance with prevailing social norms. In light of that, regardless of whether there is a direct causal relationship between that background and the offending, there may be a lessening of the offender’s moral culpability for the offence and a need for less weight to be given for the purpose of general deterrence.

43. In my view there should be less weight given to that factor as a result of the application of those principles. However, it still remains important not to lose sight of the other considerations including the effect of the offending on the victims, expression of the community’s disapproval of the nature of the offending and specific deterrence (see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]).

44. Overall, while the subjective cases are different I do not consider that there should be any different penalty for either offender. The mental health and youth of each have roughly the same effect on the appropriate penalty, and the disadvantaged childhood of Mr Paese is balanced by the greater steps taken by Mr Hearn towards rehabilitation.

45. In assessing the appropriate length of sentence I have also had regard to other decided cases including the decision of his Honour Judge Hanley SC in Lonsdale v R [2020] NSWDC 267. While those cases provide some guidance to the principles to be applied, each case falls to be assessed according to its individual circumstances. I note, though, that the subjective circumstances of the offenders here are far more compelling than those in Londsdale, and to some degree the offending there was more serious than it was here.

46. Having regard to all of those factors the appropriate starting point for each offender is two years and six months. Applying the discount for the early plea of guilty the sentence will be one year and ten months imprisonment.

47. The next question is how that sentence is to be served. In that respect community safety is the paramount consideration, and in determining that issue I must consider whether rehabilitation will best be met in custody or in the community. That question is easily answered here. Both offenders have taken significant steps towards rehabilitation; supervision in the community will continue that path, returning to gaol will not. For that reason community protection will best be met by the imposition of an intensive corrections order.

48. Given the amount of subjective material before the Court and the punishment including custody and strict bail conditions that have already been inflicted upon the offenders I see no need to obtain a sentence assessment report before finally deciding whether to make such an order. However, both offenders will be subject to additional conditions of undertaking any rehabilitation programs thought suitable by Community Services and to refrain from taking any other drugs other than those prescribed by a medical practitioner.

49. I make the following orders, please stand up, this is in respect of each of you:

1. The offender is convicted.

2. He is sentenced to a term of imprisonment of 1 year and 10 months

3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act that sentence is to be served by way of an intensive corrections order commencing today, 23 April 2025 and expiring on 22 February 2027. The standard conditions of the order apply;

1. You must not commit any offence, and

2. The offender must submit to supervision by a Community Correctives Officer

4. The following additional conditions apply:

1. The offender must participate and maintain his participation in any programs and treatment required and/or facilitated by the Office of Community Corrections so long as that service deems necessary;

2. The offender must abstain from any drugs for the term of the sentence other than those prescribed for him by a medical practitioner.

52. If you fail to comply with the terms of the condition’s sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. That might include a formal warning, imposing more stringent conditions or it may include a revocation of the order. If the order is revoked the offender may be required to serve all or some of the period of sentence in full time custody. In other words, break the conditions, you might go back to gaol.

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Decision last updated: 23 June 2025