R v Hooper

[2015] NSWDC 173

District Court

New South Wales

Medium Neutral Citation:	R v Hooper [2015] NSWDC 173
Hearing dates:	31 July 2015
Date of orders:	31 July 2015
Decision date:	31 July 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years. Matter on s166 certificate sentenced to a fixed term of imprisonment for 2 months
Catchwords:	CRIMINAL LAW – Sentence - Break, enter and steal from commercial premises - Carried in conveyance taken without consent of the owner - Planned offence - Relevance of drug addiction
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R
Category:	Sentence
Parties:	The Crown Beaudean Hooper
Representation:	Counsel: Mr P Krisenthal - Offender Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2014/175086

SENTENCE

1. HIS HONOUR: In the guideline judgment of R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R which primarily dealt with offences of armed robbery, a subsidiary issue was discussed concerning the relevance of drug addiction as a motivating factor for criminal behaviour. Attention was focused on the concept of personal choice. Those who decide to commence taking drugs, itself an illegal activity, in full knowledge of what drugs do to people, can scarcely complain when their need to satisfy their addictions prompts them to commit criminal offences. But some exceptions to this general principle were noted, based on the idea that not everyone becomes a drug addict through informed personal use. Those who develop an addiction after being treated with narcotic analgesics are an obvious example.

2. Another obvious example arises in the present case. The offender, Beaudean Hooper, commenced his use of drugs at the age of only seven or eight when his father began supplying him with cannabis. Not surprisingly, his descent into drug use involving harder drugs also began at a very early age. So it could scarcely be said that it was an informed adult choice for Mr Hooper to start using drugs. He has battled with his drug addiction ever since and, as is not at all surprising, in order to fund his drug addiction he has committed offences, often and regularly. Indeed as Mr Krisenthal, who appears for him today pointed out, in the last eight years of Mr Hooper’s life he has spent six of them in custody. He has tried two residential rehabilitation facilities but, as is clearly the case, they have not been successful.

3. It was to obtain money for drugs that the offender committed the crime for which I must now sentence him. He and another man broke into some commercial premises, a jewellers, which was itself within a shopping centre. They firstly broke into the shopping centre and then broke through the security shutters around the jewellery store before they began smashing their way into display cabinets, grabbing stock and leaving. This was not some quiet and subtle offence by any means. The offenders caused a great deal of damage and thus a significant loss. Fortunately the offender was not wearing gloves at the time of this offence and so his participation in the offence was easily discovered when a fingerprint belonging to him was located.

4. The stock that was taken and not recovered had a wholesale value of about $12,000 and a retail value of about $60,000. On top of that, the jeweller suffered further loss, repairs to the premises cost about $25,500, stock was damaged and so was unsaleable to the value of $6,500 and the damage was so extensive that for a while the jewellers could not even trade, suffering a further loss. Although of course it has to be recognised that this was not a break, enter and steal into residential premises, with all the accompanying harm that that offence carries with it, this was a serious example of a break, enter and steal from business premises.

5. The offender is a relatively young man of Aboriginal heritage. Although his immediate family were apparently not the type of people to commit criminal offences, that is not to say his upbringing was ideal. I have already mentioned that his father was the person who first supplied him with drugs. His father was also domestically violent towards his mother and physically abusive towards he himself.

6. He was brought up in rural New South Wales but the family relocated to Newcastle. It was there that he became exposed to crime and drugs in the Newcastle area. At one stage the family relocated to Dubbo to live with extended family members. This was also a bad move as far as Mr Hooper was concerned because he began to be influenced by his cousins who were excessive alcohol and drug users. Mr Hooper told a psychologist that he thinks this is where he went off the rails.

7. Quite clearly, and this almost goes without saying, Mr Hooper will continue to commit offences if he continues to use drugs and so the most important thing that needs to happen for the offender is that he deal with his drug addiction. He has had opportunities in the past but has failed to take advantage of them. While of course it was not an informed choice to begin drugs, it is Mr Hooper’s decision as to whether he continues to take them. Until he makes the decision that he wants to give up drugs and until he makes the decision that he will not use them, he will continue to use drugs and thus continue to offend and thus in turn continue to go to gaol.

8. Of course this offence was aggravated by the circumstance that it was planned. The offenders had to obtain the equipment that they needed. He was also on bail at the time of the offence which is a serious matter of aggravation.

9. He was sentenced to imprisonment for the offence for which he was on bail and so part of the time he has been in custody after being arrested for this matter has been referrable to other offending. Mr Krisenthal reminds me of course that the principle of totality applies and so I will give effect to that principle by backdating the sentence that I am to announce shortly to 30 January 2015. Effectively there will thus be some partial concurrency with other sentences.

10. It is clear that there are special circumstances in this case, thus leading to the time in custody that Mr Hooper will serve being reduced. This is not done as any favour to him but in an effort to protect other members of the community from further offending by Mr Hooper. If he is rehabilitated, if his drug use is dealt with, then fewer members of the community will suffer in the future.

11. There is a s 166 matter to which the offender has pleaded guilty. He was carried in a stolen conveyance at one stage. That offence pales into insignificance compared to the break, enter and steal matter and so he will receive no extra punishment for that matter.

12. Mr Hooper pleaded guilty at the earliest opportunity and so the sentence I am about to announce is 25% less than it would otherwise have been.

13. I have noted that there is a standard non-parole period attached to this offence. I have taken into account both the standard non-parole period and the maximum sentence in determining the appropriate penalty which is as follows.

14. He is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 30 January 2015 with a head sentence of five years. The offender will thus be eligible to be released to parole on 29 July 2017.

15. On the s 166 matter I impose a fixed term of imprisonment of two months to have commenced on 30 January 2015.

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Decision last updated: 19 August 2015