R v Hooker

[1999] NSWSC 896

CITATION:	R v HOOKER [1999] NSWSC 896
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70089/98
HEARING DATE(S):	23/06/99, 27/08/99, 02/09/99
JUDGMENT DATE:	2 September 1999
PARTIES :	Regina v David Jason HOOKER
JUDGMENT OF:	Barr J at 1

COUNSEL :	Crown: T R Hoyle SC Prisoner: M Ierace
SOLICITORS:	Crown: S N Rodwell Prisoner: A Nasti
CATCHWORDS:	Criminal Law - sentencing - young offender; Criminal Law - sentencing - murder; Criminal Law - sentencing - robbery
DECISION:	See paragraphs 32 to 36 inclusive

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Thursday, 2 September 1999

70089/98 - REGINA v David Jason HOOKER

JUDGMENT
1   HIS HONOUR: The prisoner, David Jason Hooker, was committed to this Court for trial on a large number of counts. The Crown first presented an indictment on 23 June 1999, the prisoner pleaded guilty to certain of the counts and the Crown accepted his pleas in discharge of the indictment. On 27 August 1999 the Crown presented a second indictment which superseded the first and accepted in discharge the pleas the prisoner then entered. In the circumstances it is proper to regard the prisoner as having pleaded guilty at the first opportunity. The offences of which he now stands convicted are as follows -

On 9 March 1998 at Marrickville he murdered Duc Hoang Do;
At the same time and place he robbed Toan Van Doan of certain property and at the same time used corporal violence upon him, occasioning him grievous bodily harm; and
At the same time and place he robbed Cong Hai Nguyen of certain property and at the same time used corporal violence upon him.

2   On 9 March 1998 the prisoner, who was addicted to the use of heroin and other drugs, went with six other young men or youths to a flat in Marrickville. They had bought heroin there before and intended to do so on this occasion. They arrived there some time after 10pm. The prisoner had already consumed drugs on that day. Between about 1pm and 5pm he had taken between seven and nine serepax pills and between 5pm and about 9.30pm had taken heroin.

3   When they arrived at the premises there were two men there, Cong Hai Nguyen and Duc Hoang Do. The young men purchased heroin from Cong Hai Nguyen and sat in the lounge smoking it. In the meantime Cong Hai Nguyen and Duc Hoang Do prepared or ate a meal in the kitchen.

4   One of the visitors suggested that they rob the two men of their money and drugs. Although there was an initial reluctance on the part two or more of them, including the prisoner, they all joined in the attack which followed. Duc Hoang Do walked into the room where they were and was immediately set upon and punched and kicked by a number of people. They left him apparently unconscious and bleeding in the corner of the room.

5   Cong Hai Nguyen entered the room and they attacked him, kicking and punching him in the face and the head. They threatened to kill him and tore his clothes. They stole his wallet but he managed to run out of the flat and escape.

6   The prisoner went into a bedroom looking for money and drugs. As he searched he found a knife under a chair and picked it up. During the assault on Cong Hai Nguyen a third man, Toan Van Doan, had entered the flat, unaware of what was happening. They set upon him as well and threw him into the bedroom where the prisoner was. The prisoner struck him on the head with the knife. While that was going on the others were removing property from the flat and loading it into the car. As the prisoner came out of the bedroom Duc Hoang Do, who was recovering and trying to get off the floor, screamed at the prisoner and threatened him. He was in no position to do him harm, of course, but he threatened to take revenge. At that, the prisoner walked over to him and stabbed him three times in the chest. The knife used was a large, heavy one.

7   The prisoner and the others got away in the car.

8   Duc Hoang Do died of his wounds. He sustained three stab wounds to the chest and blunt force head injuries. The longest wound was 210mm deep and perforated the heart. The lungs, liver and diaphragm were also perforated.

9   Toan Van Doan sustained a serious head injury. He was kept in hospital for the next six days. The repair of the head wound required thirty-four stitches and he had to have an operation to remove a blood clot from the brain. There is no evidence of any continuing disability and it is to be assumed that he has recovered from his injuries.

10   The prisoner was arrested, taken to police premises and formally interviewed. He admitted going to the premises with the other people and gave the police a version of what happened which is substantially the same as the one I have related. He admitted that he remembered hitting the man on the head in the bedroom but said that he had no recollection of stabbing the second man. He admitted that he must have done so, however, because he remembered having the knife and because his colleagues had told him that he had stabbed the man.

11   I accept the opinion of Dr Westmore that the prisoner’s inability to recall exactly what happened is genuine and probably results from the combined effect of the drugs he had taken and the difficulty he has had coming to terms with what he has done.

12   The offences for which the prisoner is to be sentenced are very serious indeed. One man was killed, another was badly hurt. Substantial quantities of goods and money were taken under violence and threats of violence. The first count carries a maximum sentence of penal servitude for life, the second twenty-five years’ penal servitude and the third twenty years’ penal servitude.

13   There are important features, however, which mitigate the criminality of the prisoner. I am satisfied that he did not go to the flat with intent to attack or rob. He took no weapon. The attack was suggested by another member of the group and I think that he responded partly because of the pressure of his friends and partly because the effect upon him of the drugs he had consumed made it difficult for him to resist.

14   He admitted his involvement as soon as the police spoke to him. Without his admissions and his pleas of guilty the Crown would have had a weak case. The Crown informed the Court that it was doubtful whether the two surviving victims would have been available to give evidence.

15   The prisoner was born on 6 November 1980. He had a difficult childhood. His father beat him severely over a period of years and the household was unhappy. An uncle sexually abused him. It may have been because of his resentment of his father that he began when he was thirteen years old to commit crime and to experiment with illegal drugs. By the time he was fourteen he had become dependent on heroin. By the age of seventeen he was using more than one gram per day, costing between $500 and $600. Of course, he was committing crimes to raise the money he had to have. He began offending in 1995 and has a record of stealing from the person, stealing motor vehicles, possessing implements, robbery in company and other offences of violence as well as motor vehicle offences. He was given the benefit of community service orders, but reported poorly and breached the conditions of them, and of control orders to which he was later made subject.

16   The prisoner has been in detention since the date of his arrest, namely 8 April 1998. He has no psychiatric illness, is of average intelligence and has the ability of an adult to read and comprehend.

17   He has a girlfriend with whom he was living at the time of his arrest and they have a young child. His family and his girlfriend are supporting him.

18   He feels guilty about putting his family through the ordeal of their suffering. Although his family wanted him to plead not guilty, he wanted to recognise his involvement by pleading guilty. Although he finds it difficult to demonstrate remorse, I think that his action in entering his pleas shows that he is sorry for the pain he has inflicted on others.

19   Notwithstanding the efforts of those who are supervising him, he resists autonomy, thinks little of himself and mistrusts others. According to a psychologist, Mr Harry Smith, who prepared a report for the Court, the prisoner may have trouble sustaining or even beginning a consistent therapeutic relationship. His hypersensitivity, gloomy outlook and self-demeaning comments intensify his anguish about the past, the present and the future. He is in need of long-term therapy. Mr Smith considers that he has not closed the door completely to help, however.

20   In spite of his lack of trust in himself and others, however, reports from the officers of the Department of Juvenile Justice show that the prisoner is taking tentative steps towards rehabilitation. He is well respected by those who have the charge of him.

21   Since his arrest the prisoner has been taking part in a program of study supervised by officials of the Department. He is working towards completing his Year 10 School Certificate, something he was denied when expelled from his last high school. His executive teacher speaks highly of his motivation and efforts to continue his education in custody. He thinks that the prisoner’s attitude during the months after enrolment has improved considerably. He is taking a lot of pride in his work and is one of the best students in the course. He has also completed a number of TAFE outreach courses in conjunction with his Year 10 studies. They concentrate on practical, trade work, something to which the prisoner seems well suited.

22   During recent riots at the Juvenile Justice Centre where he was being held he assisted the authorities to bring a dangerous state of affairs to a safe and satisfactory conclusion.

23   I think that these are signs that the prisoner may gain confidence in himself and others and I accept the opinion of Mr Smith that he should be given the opportunity to continue to take advantage of the juvenile justice system until he is twenty-one years old.

24   It is difficult to come to a conclusion whether the prisoner will offend again after his release into the community. Dr Westmore held out some hope that the violence the prisoner engaged in was perhaps out of character because he told Dr Westmore that he was not normally violent. However, the prisoner had by then been found to have committed two robberies. Dr Westmore thought that the aggression occurred in the context of his antisocial personality traits, resulting from his violent childhood and from his substance abuse.

25   I think that there are modest prospects that the prisoner will not offend again if he takes advantage of the opportunities that will be offered him in the juvenile justice system and, later on, when he is in the adult correctional system and on probation.

26   The prisoner was seventeen years and four months old at the time of these offences. He is therefore entitled to consideration on account of his age.

27   In sentencing young people, the consideration of general deterrence is not as important as in sentencing adults because for young people considerations of rehabilitation have to be given prominence. However, deterrence and retribution do not cease to be significant merely because the people to be sentenced are in their late teens. When the offence calling for sentence is a grave crime of violence frequently committed by people of such age the need to protect the public against such crimes must be kept in mind. Unfortunately, serious assaults and robberies by groups of teenagers are not uncommon in our society.

28   Of the prisoner’s six companions, only two have been dealt with, and both in the Children’s Court. One, who was ten months younger than the prisoner, pleaded guilty to a single count of robbery in company and was ordered to serve one year’s probation, allowance having been made for five months’ pre-sentence detention. The other, who was four months younger than the prisoner, pleaded guilty to two counts of aggravated robbery with corporal violence and was ordered to serve eighteen months, probation and made subject to a conditional control order for nine months. Because of the difference between the criminality of those offenders and that of the prisoner and because they were dealt with under a different sentencing regime and because I know nothing of the backgrounds or any criminal antecedents of those offenders, I find those sentences of no assistance in determining the sentences to be imposed upon the prisoner.

29   The sentence I impose for each offence will take account of the criminal conduct on which the relevant count is based. At the same time, the overall sentence will be proportionate to my assessment of the prisoner’s total criminality.

30   Because all the offences were committed within a single short episode of misconduct, the prisoner is entitled to expect a degree of concurrency. However, because his total criminality exceeds that of the most serious offence, there must also be a degree of accumulation.

31   The fact of accumulation and the special needs of the prisoner for an extended period in the community under supervision in order to promote his rehabilitation produce the need for an additional term for the first count which exceeds one-third of the minimum term. The same need to structure an overall sentence which accords with the totality of the prisoner’s criminality but makes proper provision for his rehabilitation also produces the need to fix an additional term on the second count which exceeds one-third of the minimum term and to impose a fixed term on the third count.

32   For the offence of robbing Cong Hai Nguyen and using corporal violence upon him the prisoner is sentenced to penal servitude for a fixed term of three years, commencing on 8 April 1998 and expiring on 7 April 2001.

33   For the offence of robbing Toan Van Doan and using corporal violence upon him occasioning him grievous bodily harm the prisoner is sentenced to penal servitude for five years, comprising a minimum term of three years commencing on 8 April 1998 and expiring on 7 April 2001 and an additional term of two years.

34   For the offence of the murder of Duc Hoang Do the prisoner is sentenced to penal servitude for thirteen years comprising a minimum term of seven years commencing on 8 April 2001 and expiring on 7 April 2008 and an additional term of six years commencing on 8 April 2008 and expiring on 7 April 2014.

35   The prisoner will be eligible for release on parole on 7 April 2008.

36   I direct that until he is twenty-one years of age the prisoner serve his sentences in a detention centre.

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Last Modified: 09/02/1999