R v Hintz

[2022] NSWDC 750

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hintz [2022] NSWDC 750

Hearing dates:

18 August 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Imprisonment for 3 years and 4 months with a non-parole period of 1 year and 8 months

Catchwords:

CRIME – armed robbery

SENTENCE – relevant factors on sentence – unrepresented offender – young first offender – application of Henry guideline –childhood trauma – drug use need for rehabilitation programmes – impact of COVID – special circumstances – role of State Parole Authority

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure Act) (1999) (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146

Moodie v R [2020] NSWCCA 160

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

R v Legge [2007] NSWCCA 244

Category:

Sentence

Parties:

Wade Hintz (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Solicitors:
K McCrossin (for Director of Public Prosecutions)
W Hintz (self-represented)

File Number(s):

2021/225089

JUDGMENT – EX TEMPORE REVISED

Introduction

1. This morning Wade Hintz adhered to a plea of guilty that he had entered in the Local Court to an offence or Robbery Armed with an offensive weapon. That offence carries a maximum penalty of 20 years imprisonment: s 97(1) Crimes Act 1900 (NSW). That maximum penalty is one important guide to the exercise of my sentencing discretion.

2. Hintz pleaded guilty in the Local Court, he co‑operated with the authorities. The utilitarian value of his plea must be recognised by a reduction in 25% in the otherwise appropriate sentence.

3. The facts of the matter, to which I will refer shortly, require consideration of the Court of Criminal Appeal’s guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. I am required to take that guideline into account: s 43A Crimes (Sentencing Procedure Act) 1999 (NSW); Moodie v R [2020] NSWCCA 160. It is a guideline not a tramline:”’ R v Legge [2007] NSWCCA 244. It is not a fetter on the discretion of the Court, but it must be taken into account. It is important to note that one rationale for the guideline in Henry was the purported undue leniency shown by judges of this Court to young offenders who commit armed robberies.

The Form 1

4. Hintz admitted his guilt and asked that I take into account a number of other matters on a Crimes (Sentencing Procedure Act) Form 1. I will do so. I do not sentence for those matters, but they do increase the need to take into account the need for personal deterrence and retribution in the matters for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39]-[42]

5. The Form 1 matters relate to the use of credit cards stolen during the robbery. Each use involved relatively small transactions for food and clothing and the like. Each offence was however, committed against local businesses. It is imperative that the Courts acknowledge that the use and abuse of stolen credit cards undermines the system of credit relied upon that keeps our community trade functioning. Anyone who abuses the law by using stolen credit cards should expect to be punished. That said, I have to focus on what was done for in the matter sentence. The credit card offences, the dishonestly obtain property by deception offences, were an ordinary consequence of that robbery. It being expected that what was taken would be later used dishonestly. A matter that is taken into account, so far as the robbery is concerned, and which should not be double counted.

Facts for Sentence

6. On 6 June 2021 a man in his 60s parked his car in the Figtree Grove Shopping Centre. He returned to the car and put his shopping in the car’s boot. He then sat in the driver’s seat, intending to drive away. He noticed a young man wearing a hoodie at his door. He was grabbed on the shoulder. The young the man said, “Give me your wallet”.

7. At this stage the victim observed the offender holding a stainless-steel carving knife, with a thin blade approximately 30 centimetres in length. The victim was understandably frightened and very concerned he might be stabbed. He was grabbed again. The victim took his wallet from his pocket and gave it to the offender, who walked away.

8. CCTV of the Figtree shopping complex was played in Court. Police investigations, including CCTV relating to the use of the credit cards taken, led to the arrest of this offender. He has been in custody since 6 August 2021.

Objective seriousness

9. The offence of robbery obviously involves the taking of property, but offences like this are really offences against people and offences against the community.

10. Now in gaol, and not on methylamphetamine Hintz, I accept, understands how anyone in the position of his victim might have felt when confronted by a young man making demands of him, particularly given a knife being held at him.

11. The fact that the offender was using drugs does not mitigate. It does not reduce the seriousness of the offence. It does not excuse what occurred. The fact that he was using drugs means that he was more dangerous and unpredictable. The victim in this matter was not to know if those moments were to be the last he had on earth. That is whether this unpredictable, dangerous, person would have used that weapon on him. Even if that was not Mr Hintz’s intention, and I am sure it was not, his victim was not to know that.

12. The Crown submissions note the Henry guideline and the significance of use of the weapon of this type. Hintz approached his victim when he was in a particularly vulnerable position. He was not a vulnerable person, but he was in a vulnerable position seated in his car. Only a small amount was taken and while there was limited violence in terms of touching of the victim, there was a real threat.

13. So serious are crimes such as this that in the circumstances here, looking at them objectively, only a custodial sentence of some length would be justified.

The case for the offender

14. Legally represented in the Local Court, Hintz decided that his lawyers were charging too much, and they withdrew from the proceedings with my leave. The matter was then listed so that Mr Hintz could explain to the Court whether he would or would not be represented. He told me that he wanted to represent himself and he did not want a solicitor, or a psychological report obtained by them. He told me although he does have some funds, which might have enabled those to be obtained, that would diminish any funds available to him on his release which he will need for his rehabilitation.

15. This morning he adhered to his plea and indicated he wished to proceed. After having procedural matters explained to him, he gave evidence, and I asked him a series of questions, as did the Crown Prosecutor.

16. He is still young, born in 1998. He lived in Dapto. He went to Year 10 at Dapto High School. He is one of three siblings, one older sister has an intellectual disability. When he was a teenager, his family were beset by double tragedies. His mother died in 2010 and 4 years later his father sickened and died. Hintz was then 16. The deaths and the consequences of those deaths tore his family apart.

17. He moved in 2018 to Melbourne to work with his brother. He obtained employment and earned a good income. I am prepared to use my own experience to postulate that that given this triple trauma; death of individual parents, family being torn apart, together with having too much income and being too young, he took up the use of illicit drugs, in particular methylamphetamine.

18. Methylamphetamine use is inconsistent with working as a demolition worker. I did such work myself when I was younger. Understandably he soon lost his job, and I presume lost the trust his brother had shown in him. He gravitated back to Wollongong where his grandparents and sister lived but, entirely understandably, his grandparents could not cope with a young man with a drug addiction as well as caring for their intellectually disabled granddaughter.

19. He began living with friends, couch surfing. He was aimless and addicted to methylamphetamine. He tells me he really does not know why he was carrying the knife. On this occasion walking through Figtree, carrying a knife he made a spontaneous decision to rob his victim. This seems plausible, as the product of the robbery was spent on food, clothing and other items of little value.

20. I do not underestimate the impact of his background. It does, to a degree, help me understand why his moral culpability for this offence might be reduced, although it certainly does not excuse the crime.

21. He has some Local Court matters which will have to be resolved, as they occurred after this matter. He comes before me as a first offender.

22. He tells me that having had time to think about his actions, he is remorseful, sorry, and regretful.

23. He has shown some insight into the impact of his offending on his victim. Matters I will take into account.

24. He has not adjusted well to gaol discipline, nor does it appear he has particular respect for the authority of custodial officers.

Synthesis

25. Hintz is young, he is immature, he has a lot of growing up to do. The Courts do recognise that youth and immaturity are factors which should properly be taken into account in mitigation of sentence. It is hoped that as a person matures, they get a perspective on where their life has been and where their life is going and that they are capable of learning from experience. Youth and immaturity can also explain the impulsivity of certain offending, as can drug use.

26. He has spent his time in custody during the pandemic. He has been locked in his cell for 70 days. He has avoided the illness but probably by good luck or good genes rather than anything else because COVID is rife in our gaols, as it is in the community.

27. He has lost most of his family contacts but has an aunt in Western Australia who says that she will provide accommodation for him should he be allowed to go to Western Australia.

28. He has limited opportunity to work in gaol, due to COVID. He has had no access to rehabilitation programs, but he tells me, that, once sentenced he should qualify for those programs. It is clear from my experience that the sooner he does programs such as EQUIPS Addiction, the better.

29. He will on release have a small amount of money available to him, but he will have no accommodation if he has to stay in New South Wales.

30. He has still not addressed his drug and alcohol problem. I would advise him to work on that as soon as practicable because his release will be subject to the decision of the State Parole Authority. And his release date may be for them to determine. They may insist that he goes into a full-time rehabilitation program on release. I will structure his sentence to enable that to occur.

31. His youth, immaturity, the need to structure a sentence to promote drug rehabilitation require in this case, and his antecedents or lack of antecedents require in this case, a substantial finding of special circumstances.

32. I have predicted that custodial sentences might be imposed in the Local Court and that non-parole period does allow for some erosion of that time, but if not, I still would recommend that release be conditional on rehabilitation programs being made available to him. But that is very much a matter for the State Parole Authority. And it will depend on whether he knuckles down while he is in custody.

33. The Parole Authority will look at your gaol discipline record, the programs record, before they recommend you for release because they have to be satisfied of community safety before you can be released. Matters you should think about very carefully for the rest of the non‑parole period of your sentence.

34. Whether you are able to go to Western Australia will, I suspect, really depend upon whether supervised parole can be organised cross‑jurisdictionally, that is arrangements made with Western Australia. It seems clear that you will need to be supervised on release for at least some period. But, again, that is a matter of the State Parole Authority.

35. Taking all those matters into account, noting my finding of special circumstances, noting the reduction of 25%, had it not been for your plea of guilty there would have been a sentence of 4 years and 6 months, I have rounded down. I also take into account the Form 1.

Orders

36. There will be a sentence in this matter of 3 years and 4 months. The non‑parole period will comprise of 50% of that sentence, a substantial finding of special circumstances. It is normally 75%. So, 50% to be spent in custody.

37. The sentence will date from the date you went into custody – 6 August 2021. This means your release date will be 5 April 2023. Parole will be up to the Parole Authority whether you are released on that date. The parole period of 1 year and 8 months will commence on 6 April 2023.

38. So, start 6 August, eligible for consideration for parole 5 April, which means you need to have your parole things organised about 8 weeks before, early next year. If given parole, there will be 1 year 8 months on parole.

“HIS HONOUR: Are there any other orders you seek?

MCCROSSIN: No your Honour.

HIS HONOUR: Anything you didn’t understand, Mr Hintz, and need explaining to you?

OFFENDER: So on the top it’s three years four months and then my release date is 5 April next year?

HIS HONOUR: 50/50. Well it is up to you, Mr Hintz, but again I just want to reiterate that your release on 5 April depends on your gaol record, what you have done, tried to do so far as rehab, what can be organised with your parole officer.

OFFENDER: Yeah.

HIS HONOUR: Not guaranteed.

OFFENDER: Yeah.

HIS HONOUR: And any sentence over three years means you have to go before the Parole Authority and the more you can do in the next 8 months or so to give them confidence you will not re‑offend when you are released, the better it will be for you.

OFFENDER: No worries.

HIS HONOUR: If they do not have confidence that you will not re‑offend, you will not get out. You might end up serving the whole of the sentence, so it is for you to work on, work towards that date.

OFFENDER: No worries thank you your Honour.”

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Amendments

09 August 2023 - Corrected typographical error

Decision last updated: 09 August 2023