R v Hoskin

[2023] NSWDC 150

District Court

New South Wales

Medium Neutral Citation:

R v Hoskin [2023] NSWDC 150

Hearing dates:

11 May 2023

Date of orders:

11 May 2023

Decision date:

11 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1.   Kane Hoskin is convicted.

2.   I impose an aggregate term of imprisonment of 3 years with a non-parole period of 18 months to date from 4 December 2021. The non-parole period will expire on 3 June 2023 and the head sentence will expire on 3 December 2024.

3.   The offender is disqualified from driving and/or holding a driver’s licence for the minimum period of 3 months, that order will take effect from 3 June 2023.

4.   The offender is to be released on parole on 3 June 2023.

Catchwords:

CRIME — Drug offences — Supply prohibited drug

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence

CRIME – Fraud – possess with identification information

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drugs Misuse and Trafficking Act 1985

Road Transport Act 2013

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Kane Hoskin (Offender)

Representation:

Counsel:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Murphy’s Lawyers (Offender)

File Number(s):

2021/344864

Publication restriction:

None

Judgment

Introduction

1. Kane Hoskin (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H85494858	Offence	Maximum Penalty and SNPP
1	Supply prohibited drug not less than commercial quantity, contrary to s 25(2) Drugs Misuse and Trafficking Act 1985	20 years imprisonment; SNPP 10 years and/or 3500 penalty units
3	Supply prohibited drug not less than indictable quantity, contrary to s 25(1), Drugs Misuse and Trafficking Act 1985	15 years imprisonment and/or 2000 penalty units
9	Possess identification information with intent to commit an indictable offence (fraud), contrary to s 192K, Crimes Act 1900	7 years imprisonment
13	Aggravated enter dwelling house with intent to commit serious indictable offence (larceny), contrary to s 111(2), Crimes Act 1900	14 years imprisonment

2. The offender also asks the Court to take into account, the following offences on a Form 1 schedule:

1. four counts of larceny (sequences 6, 17, 18 and 19), contrary to s 117, Crimes Act 1900, when passing sentence for sequence 13.

3. An offence of driving while licence suspended, contrary to s 54(3)(a), Road Transport Act 2013, must also be dealt with by the Court on a s 166 Certificate. The maximum penalty for the offence is 6 months imprisonment and/or a fine of $2,200. A conviction for the offence also carries with it an automatic licence disqualification of 6 months reducible to a minimum of 3 months.

Approach to Sentencing

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

6. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

7. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

8. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

9. On 19 October 2021, the offender was issued an infringement notice for an offence of drive a motor vehicle at an excess speed greater than 45km/h, and given a 6-month licence suspension, commencing on that date and expiring on 9 April 2022.

27 October 2022

10. At around 1:18am, the offender drove a Volkswagen Tiguan into a secure underground carpark situated under a residential apartment block in Waterloo. The co-offender, Shelley Greenhalgh, was in the passenger seat.

11. The offender stopped the Volkswagen in front of a yellow Honda Civic and a black Toyota Corolla. These two vehicles were locked and their windows were closed.

12. The offender and Ms Greenhalgh were captured on CCTV taking property from the Honda and Toyota and placing it in the Volkswagen.

13. The following items were taken from the Honda:

1. a black box containing the front car grille (valued at $470);

2. a black power bank with wireless charging capability (valued at $470);

3. a silver cigarette lighter USB charging plug with a white Apple lightning cable (valued at $20);

4. Black Ray Ban sunglasses (valued at $200);

5. $6000 in Australian currency;

6. Honda Civic registration papers;

7. a 20-piece Stanley screwdriver set in a black case (valued at $45).

14. The offender and Ms Greenhalgh then broke the seal of the Toyota and took the following items from the car:

1. a mobile phone holder (valued at $17);

2. a USB cable (valued at $20).

15. Ms Greenhalgh then approached a storage cage and unsuccessfully attempted to pull the side of the cage free. Ms Greenhalgh moved to an adjacent locked storage cage. The offender manipulated the lock and managed to retract the bolt whilst the lock was still in place. Ms Greenhalgh then opened the cage door and took several items from the cage to the Volkswagen, including an air conditioner or dehumidifier. The offender helped Ms Greenhalgh wheel this back to the Volkswagen.

16. Ms Greenhalgh then opened the closed door of a third storage cage and took a medium-sized white box. The offender inadvertently activated the alarm of a vehicle parked nearby and they both ran back to the vehicle and drove out of the carpark.

17. They parked near another building in Waterloo. Ms Greenhalgh opened the boot and placed a blanket over the property. They entered this building and took the lift to Level 5. Once they exited the lift, they turned in the direction of two units, one of which was rented in the name of “Katie Ball”.

Arrest

18. Between 28 November 2021 and 2 December 2021, the offender was captured on CCTV footage letting several people into an Airbnb unit in Wolli Creek for short periods of time. The offender would exit the unit and press the lift call button. The visitor would then exit the lift and enter the unit with the offender.

19. At 2pm on 3 December 2021, police executed a search warrant at the Wolli Creek unit. The offender was present in the unit. He appeared sluggish and non-responsive. The offender was conveyed to St George Hospital due to a suspected drug overdose.

20. Police located the following items in the unit:

1. a pencil case containing three plastic bags containing a total of 53.43 grams of methylamphetamine. The offender’s DNA was found on the knot of one of the plastic bags and on the zipper and edge of the pencil case;

2. two 500mL white plastic bottles containing a total of 1.230kg of gamma butyrolactone;

3. one notepad containing a ledger;

4. one small container containing a NSW driver’s licence, Medicare card and Bendigo Bank debit card, all in the name of XXXX who, upon further enquiries, was revealed to be deceased. The driver’s licence contained a photo of the offender. The offender’s fingerprints were found on the interior and exterior of the container. Photographs of the identification documents were found on the offender’s mobile phone.

21. Police also located extensive drug paraphernalia, including foils, clear resealable bags, scales, straws and plastic freezer bags.

22. On the offender’s mobile phone, communications on Micee and Signal were discovered relating to drug supply and money owed and paid.

23. On 4 December 2021, the offender was discharged from St George Hospital and conveyed to the police station. He declined the opportunity to participate in an electronically recorded interview.

The Offender’s Case on Sentence

24. The offender tendered the following documents:

1. psychological report of Professor Stephen Woods dated 8 May 2023;

2. letter of reference from Vanessa Turnbull-Roberts dated 23 January 2023;

3. letter of reference from Paige Hoskin (sister) dated 16 January 2023;

4. letter of remorse from Kane Hoskin dated 24 January 2023;

5. letter of reference from Scott Hoskin (father) dated 10 May 2023;

6. letter of reference from Makayla Reynolds dated 29 January 2023;

7. letter of offer of employment from Remon Black dated 3 May 2023.

25. The offender was also called to give evidence and cross-examined. He impressed me as a person who has insight into his life and is committed to turning it around. I accept that his expressions of wanting to change are genuine.

26. The following is a precis of the evidence relied on by the offender.

27. The offender is a 34-year-old Indigenous man. His mother’s family line is the Yuin nation and his father’s is the Wiradjuri people. He has two sisters.

28. His parents separated when the offender was 22 years old. The offender’s mother’s mental health deteriorated after this and she required psychiatric treatment. The offender financially assisted his mother and sisters for this period. His parents have since reconciled. His father is an Aboriginal and a Community Engagement officer and his mother is a store manager for Kmart. Both parents are in good health. The offender’s home environment as a child was one characterised by strict discipline.

29. The offender attended Marcellin College at Randwick to Year 10. He was the only Indigenous student at his high school and he reported being subject to social and racial discrimination by his peers.

30. As he was entering high school, an unknown male attempted to sexually abuse the offender whilst walking his dog. The male fled after he was attacked by the offender’s dog. Further, in Year 9, he was sexually abused on numerous occasions by one of the College’s teaching Brothers. The offender reported that he felt too ashamed to report the abuse and the Brother continued to intimidate him throughout Years 9 and 10. The offender continues to experience flashbacks to, and nightmares of, this abuse and the earlier attempted assault by the stranger. These flashbacks are particularly triggered by the “strip searches” he is subjected to in gaol, as well as media involving high profile figures in the clergy. As a result of his trauma and experiences of discrimination, the offender started acting out in class and was frequently sent away from class, disrupting his education. The offender continues to be fearful of authority figures and experiences shame.

31. The offender has been working with Ms Hoskin to access supports in relation to his experiences of child sexual abuse. He is in the process of making a claim in relation to this abuse.

32. The offender completed the HSC at South Sydney High School.

33. After the offender left school in 2006, the offender completed an apprenticeship in motor mechanics. He maintained employment in this trade until his drug use escalated. After this, he was only capable of completing short-term jobs.

34. The offender began using illicit drugs at around age 12–13, following the attempted assault by the unknown male. The offender’s sister reported that the offender had a gambling addiction, from which he has now recovered.

35. The offender witnessed a drowning when he was around 15 years old, while volunteering as a surf lifeguard at Maroubra Beach.

36. When the offender was 17 years old, he was involved in a motor vehicle accident which resulted in head injuries and loss of consciousness.

37. The offender has been the victim of physical assaults on numerous occasions, all of which have been related to either drug use, racial discrimination and domestic violence. One such assault involved the offender having been stabbed with a broken bottle by a former partner when he was 22 years old.

38. Approximately a year before the offender was arrested for the current offences, he was robbed under threat of death.

39. The current offences were committed whilst the offender was on release from custody. He had not been expecting to be released and did not have the opportunity to arrange transport from the facility or to obtain accommodation. At the time, face masks were mandatory in public and the offender was issued a fine by police when on his way to an acquaintance’s residence. In the four days following his release, the offender was homeless and his mental health deteriorated. He was provided with 28 days emergency accommodation, which required him to move every two to three days. He failed to keep in contact with his family and resumed illicit drug use. The offender reportedly resorted to selling drugs to obtain accommodation and fund his escalating drug use. During this period, the offender was also isolated from his family due to COVID-19 geographical restrictions.

40. Ms Hoskin reported that she has observed the offender struggle to cope with significant life challenges and has dealt with these through drug use. Ms Hoskin will support the offender to obtain treatment upon his release.

41. Whilst in custody, the offender has remained abstinent from drugs and has a regular exercise regime. Both have reportedly benefitted his mental wellbeing. In gaol, the offender enjoys and gains significant personal satisfaction from his work. He is a member of a work crew and is trusted by Correctional staff.

42. He has expressed a willingness to engage in psychological treatment following his release. Upon his release, he will reside with his parents and younger sister and will seek to utilise his trade and the skills he has learnt in the gaol’s metal fabrication shop. He expressed a long-term goal to obtain a grant available to Indigenous persons to establish a wildlife reserve.

43. Professor Woods opined that the offender meets the diagnostic criteria for the following:

1. Neurodevelopmental Disorder, specifically Adult Attention Deficit Hyperactivity Disorder, which was untreated at the time of offending and impacts upon impulse control.

2. Post-traumatic Stress Disorder relating to Childhood Sexual Abuse.

3. Other Specified Trauma and Stressor-Related Disorder relating to his experiences of racial discrimination.

4. Major Depressive Disorder (Moderate, recurrent episodes on a background of Persistent Depressive Disorder).

5. Personality Disorder (predominantly Dependent type). Personality Disorder traits can become less evident or remit with age and in response to appropriate treatment.

6. Substance Use Disorder (in remission in a controlled environment).

44. Professor Woods opined that there is a causal nexus between the offender’s history of offending and his drug dependence and early life trauma.

45. Professor Woods stated that the offender’s treatment should encompass the following:

1. Psycho-education.

2. Counselling and skills training.

3. Mindfulness, dialectical behavioural therapy and cognitive behavioural therapy.

4. Homework relating to self-reflection, skills training and reflection on treatment sessions.

5. Substance use relapse prevention therapy.

Objective Seriousness

46. The offences are of limited objective gravity.

47. Sequence 1 involved the supply of Gamma-butyrolactone. The amount of the drug was just over the commercial quantity. The offender accepts by his plea of guilty that the drug was in his possession for the purpose of supply to others. There were other indicia of supply located on execution of the search warrant. The offender was also a user of the drug and I accept that he would have consumed some of the drug himself.

48. Sequence 3 involved the supply of methylamphetamine. The quantity of 54.43 grams was over 10 times the indictable quantity and well below the commercial quantity. The offender accepts by his plea of guilty that the drug was in his possession for the purpose of supply to others. There were other indicia of supply located on execution of the search warrant. The offender was also a user of the drug and I accept that he would have consumed some of the drug himself.

49. In relation to the drug offences, I accept that the offender was supplying both drugs to support his own habit. There is no evidence that he was involved in a larger drug supply organisation. There was some planning involved through the use of the Airbnb premises.

50. The possession of identification information charge related to four documents in the name of a person who was not the offender and photographs of the cards on the offender’s mobile phone. The documents related to one individual. The offender intended to use the documents to commit fraud.

51. The break and enter offence occurred in a carpark/garage area of the premises. The offender took items from locked vehicles and storage cages. The combined value of the property was $6,800. The circumstance of aggravation relied on was that the offender was in company. In this case that circumstance was not relied on in the usual way.

52. The drive whilst licence suspended charge involved the offender driving a motor vehicle when he knew he was suspended. It is an aggravating feature of that offence that he drove for the purpose of committing other offences. The offence was not aggravated by the offender’s manner of driving.

53. The offender was sexually assaulted as a child. He experienced discrimination and social exclusion. All of these experiences caused psychological trauma. He turned to drugs at a young age when he could not make an informed choice. His moral culpability for the offences is reduced to some extent.

54. I have taken into account the maximum penalty for each offence and the relevant standard non-parole period.

Deterrence

55. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.

56. There is a need for specific deterrence. The offender has an extensive criminal history. He must understand by reference to the penalty imposed on him that if he continues to commit further offences that there will be serious consequences.

Aggravating Factors

57. The offender has a record of previous convictions: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999.

58. The offence was committed while the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on parole and a Community Corrections Order at the time of committing the offences. He was released on 19 April 2021 on an 18 month parole order. His parole was revoked for the commission of other offences, backdated to 17 July 2021 when those matters were finalised before the Local Court, by the imposition of an 18-month Community Corrections Order. A short time later, the revocation of the parole order was rescinded by the State Parole Authority (SPA) and he was released on parole again on 31 August 2021. These offences were committed between 27 October 2021 and 3 December 2021. The head sentence expired on 9 October 2022. The SPA did not take further action in relation to the present offences.

Mitigating Factors

59. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has excellent social and family support. He has insight into the circumstances that have led him to this point and has expressed a desire to change his ways. He has been working in custody and taking care of his physical health. This has improved his mental condition. I accept his evidence that when he was last released from custody that his support system failed in a significant way by reference to COVID-19 lockdowns and restrictions. He will need intensive support to rehabilitate himself and he seems to understand that he will need to engage with multiple services. His sister is uniquely placed to assist him to find support and has indicated that she will do so. He has stable accommodation with his family and a job to go to. I accept that he has found himself at a cross roads in his life and that he wants to reform.

59. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to Professor Woods and to the Court. I accept that he is genuinely contrite. The offender’s plea also indicates remorse.

60. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions will and have made the offender’s time in custody more onerous.

61. The offender has been in custody since 4 December 2021 in relation to these offences only. The SPA did not take any action to revoke his parole for the earlier offences.

Penalty

63. I have had regard to s 5 Crimes (Sentencing Procedure Act) 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

64. Kane Hoskin is convicted.

65. I make a finding of special circumstances. The offender has spent most of his adult life in custody. He is at serious risk of institutionalisation. A longer period of supervision on parole is warranted to assist him to reintegrate into the community and to deal with his mental health and addiction issues.

66. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 1 – 18 months with a non-parole period of 9 months;

• Sequence 3 – 12 months.

• Sequence 9 – 6 months.

• Sequence 13 – 21 months.

• Sequence 5 – 2 months

67. I impose an aggregate term of imprisonment of 3 years with a non-parole period of 18 months to date from 4 December 2021. The non-parole period will expire on 3 June 2023 and the head sentence will expire on 3 December 2024.

68. The offender is disqualified from driving and/or holding a driver’s licence for the minimum period of 3 months, that order will take effect from 3 June 2023.

69. The offender is to be released on parole on 3 June 2023.

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Decision last updated: 12 May 2023