R v Hoskins

[2020] NSWDC 315

District Court

New South Wales

Medium Neutral Citation:	R v HOSKINS [2020] NSWDC 315
Hearing dates:	13 February 2020
Date of orders:	20 February 2020
Decision date:	20 February 2020
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See orders at [58]
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Public order offences — Affray CRIME — Violent offences — Reckless wounding
Legislation Cited:	Crimes Act 1900 (NSW) Crime Sentencing Procedure Act 1999 (NSW)
Category:	Sentence
Parties:	Regina (Crown) Offender (Hoskins)
Representation:	Mr Webb for the Crown Mr Bianchino for the Offender
File Number(s):	2019/00035076
Publication restriction:	Unrestricted

Judgment

Introduction

1. Douglas Edward Hoskins, the offender, was born on 21 March 1980 and appears today for sentence on five offences committed on 31 January 2019. He has been held in custody in respect of these matters solely from that date. There are no matters to be dealt with on a form 1, nor is there any certificate for related or backup offences. The offences are two counts of reckless wounding, one of affray, one of assault occasioning actual bodily harm and one of aggravated breaking and entering and committing a serious indictable offence, namely assault occasioning actual bodily harm.

2. The offender was committed for sentence from the Local Court so that his plea is considered to have been made at the earliest possible time which has a clear utilitarian value and will be reflected by a 25% discount on sentence.

3. I propose setting out so far as is relevant the facts of each of the five offences and assess each offences objective seriousness before then turning to subjective matters. I will deal with the offences in the order in which they occurred. I take the facts from the agreed facts document which is at tab 2 of the Crown bundle which was tendered and became exhibit A in the proceedings.

4. On the day of the offending the offender was consuming alcohol and was at a location in Coffs Harbour where he was staying at the time. The facts of these offences involve a range of people between whom there is some association either by way of acquaintance or family connection; for example one of the victims of one of the reckless wounding charges considered the offender her uncle though in fact he is the cousin of her partner.

5. In relation to all of the offences the conduct occurred either in or at the surrounds of people’s homes. I have taken this fact into account, but not in respect of the s112 charge as I see this aspect as part of the elements of the charge.

6. The lead up to the first offence which is an offence of reckless wounding in breach of section 35 (4) of the Crimes Act was an argument between SW and the offender leading to the offender leaving SW’s premises followed by SW hearing glass smashing and her accusing the offender of throwing a bottle at her house.

Reckless wounding, s35(4) first count

7. After alleging the offender had thrown the bottle, SW was only 30 cm from the offender who had his hands behind his back. He moved his hands to his front revealing he held a knife which he raised above his head and lunged at SW bringing the knife down towards her chest. SW protected herself by raising her left arm and thereby sustained a deep 2 cm laceration to the area of her left elbow. There was immediate bleeding. SW arrived unconscious at the hospital. The laceration extended through the common extensor musculature down to the brachial tendon. She underwent surgery with two internal sutures and three external sutures and suffered an estimated 500 mil blood loss.

8. At about this point a witness, Leo Mercy saw the offender and SW arguing and saw the offender throw a punch at the female hitting her in the face he believes. He asked the offender to calm down.

9. This charge has a maximum penalty of 7 years imprisonment. There is a standard non-parole period of three years. As is well recognised I utilise those legislative provisions as guideposts.

10. In assessing the objective seriousness of this offence I note that it occurred immediately after the offender had been confronted with throwing a glass bottle. The agreed facts do not reveal whether that is admitted. I proceed on the basis that it is not. On that basis to respond to such an allegation by engaging in what could easily be life threatening behaviour is extreme. The offender acted against a person who was not expecting such an act by him and who was totally unarmed. It is not stated how large the knife was or where it came from. I would not describe the act as opportunistic but rather the irrational reaction of a man who acted with total disregard for the well being of SW.

11. It was submitted for the offender that the offender was somehow provoked because prior to attending the premises of SW, he had an argument with RP, the aunt of SW, ending with RP calling the offender a “cocksucker”. SW was not present at this argument. This argument occurred at 15 Vincent St; the offence occurred at 62 Vincent Street. Just how far apart the premises are is not known on the facts. I reject the argument put for the offender; any upset caused by RP had nothing to do with SW.

12. In my view the act was clearly reckless and very dangerous. I assess the objective seriousness of this matter as being in the mid-range.

Reckless wounding, s35(4) second count

13. This offence occurred soon after the first. A feature of each of the offences being dealt with is they were committed on the same day and in the same course of conduct during the evening of 31 January 2019.

14. Following the wounding of SW the offender was seen coming out of unit 6 (SW’s unit was number 7). Screaming had been heard from inside unit 7. The offender was seen to have two long blades in both hands and was screaming “I’m gonna get you, you’se gonna play with me, I’ll get you”. Leo Mercy called out to his partner, DC, who was nearby in fear. DC then confronted the offender and tried to settle him. Rather than settle, the offender slashed out with both knives and then came at DC in a stabbing motion. DC raised her arm and received a 4cm laceration to the bottom of her left forearm and a small laceration to her left cheek. When later examined DC had a lacerated tendon requiring 6 internal and 3 external sutures. The cheek cut was superficial.

15. In assessing the objective seriousness of this offence, I repeat the considerations set out above regarding the first s35(4) count, including noting the maximum penalty and SNPP. The victim here is again unarmed, the attack is gratuitous, and its high degree of recklessness is self-evident. I would assess the objective seriousness of this offence in the mid range.

Assault occasioning actual bodily harm

16. After stabbing DC, the offender left that scene and then attended the Wongala Estate, where his mother lives, and with whom the offender had a falling out over the previous five years, and had the previous Saturday threatened. The offender had also threatened his mother’s daughter (as said by the agreed facts).

17. The offender gained access to his mother’s house by forcing the screen door off its latch and once inside, pushed past his mother.

18. There were a number of people present, including RR, who said to the offender “Oi oi did you stab SW”, and the offender said “I did not stab no slut”.

19. Following this, the offender lunged at RR. RR feared the offender was going to try to choke him. RR pulled his head back, and the offender’s hands hit RR’s neck causing a scratch. RR punched the offender, the offender twice punched RR to the throat. The two men wrestled. RR got to his feet and left the house.

20. The maximum penalty for this offence (s59(1)) is 5 years. There is no SNPP. The actual bodily harm is the minor graze to RR’s neck, and so is a superficial injury. Whilst RR may have confronted the offender with an allegation, there is no suggestion of RR physically confronting the offender. Just why the offender went to his mother’s house is not clear.

21. The assault by the offender led to a fight, so the event is more than simply a lashing out resulting in a scratch, but it is not much more. The offence occurred, as with the first two offences considered above, in circumstances where a violent response would not usually be anticipated. The offence occurred in the offender’s mother’s home. I would assess the matter as being in the low range of objective seriousness.

Affray

22. After RR separated himself from the offender, the offender took a black handled serrated knife from the cutlery drawer, despite the best efforts of a person to stop him (being EW, RR’s partner). The offender then ran out the door and approached RR, and RR yelled to EW to shut the door. The offender yelled to not do that, ran back to the door, and had a struggle with the door and EW, involving him stabbing the knife between the door and door jamb towards EW. EW succeeded in shutting the door, then went and shut the back door. The offender tried to get through the back door, failed, and then went to his mother’s bedroom window where he sliced the windscreen (as per facts, presumably flyscreen) stuck his head in and said “Oh what, you ring the police on me. I’m gonna kill ya, I’m gonna kill ya, I’ll burn your car”. At the time the offender said this, his mother and her partner LM were in the bedroom.

23. Section 93C(1) is in the following terms:

(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.

24. This offence occurred in the offender’s mother’s home. The behaviour of the offender is frightening. The obtaining of a weapon, the struggle at the door with stabbing efforts through the doorjamb, the running around the house, the yelling, and ultimately the slicing of the flyscreen and death threats dictate that conclusion. In absolute terms the event was likely only a number of minutes duration, but it is made up of different components; the grabbing of the knife, the exiting the house, the yelling, the attempts to get back in the house, the slicing of the flyscreen and the death threats, each component in its own way causing fear. There would be a cumulative effect.

25. I would assess the objective seriousness of this offence in the low mid range.

Aggravated Break and enter and commit serious indictable offence, namely assault occasioning actual bodily harm

26. After slicing the fly screen the offender climbed through the window, armed with the serrated knife from the kitchen. The mother left the room; her partner LM remained and tried to restrain the offender, and the offender said “You called the cops on me, I hate you. I’m going to kill you”. The two men struggled, with the offender pushing the knife towards LM, and also choking him with one hand and with his other hand eye gouged him. Eventually LM removed the knife from the offender who then ran into the hallway and was apprehended by police. The aggravated element of this charge was that the offender was aware there were people present in that dwelling.

27. LM suffered red marks around his throat, bruising to his left eye, and his eye was red and sore.

28. This offence has a maximum sentence of 20 years imprisonment, and a SNPP of 5 years. These yardsticks clearly indicate the seriousness of the offence.

29. The serious indictable offence was in all the circumstances not relatively serious. The manner of the break in was however dramatic and very concerning. It was however not done secretly, but rather at what was to be the conclusion of a series of criminal acts. Against that is that the offence was committed in a way that placed LM in significant danger. I hesitate to find that degree of danger was “a grave risk of death” as referred to at s21A(2)(ib), and do not make such a finding. As noted above, this offence occurred in the mother’s home.

30. I assess the objective seriousness of this offence as below the mid range.

OTHER EVIDENCE

31. The offender had to be forcibly removed from his mother’s house, and appeared to police as heavily intoxicated and once outside the house appeared to have an epileptic seizure. He was taken to hospital by ambulance but then released to police custody when that was considered suitable.

32. By reason of s21A(5AA) self induced intoxication is not to be taken into account as a mitigating factor. The offender’s solicitor, Mr Bianchino, conceded this.

33. Exhibit B was two photographs; the one showing the injury to DC in particular shows the severity of the actual damage, and supports the view that the risk of more serious damage was very real.

34. Exhibit C is a report from Justice Health, authored by Dr Gordon Elliott, a forensic psychiatrist. Dr Elliott reviewed the prison medical notes of the offender, which revealed concerns as to attempts to self harm in 2018, refusal of medication and aggressive and argumentative conduct. There is a suggestion of his fits being feigned, and of him banging his head in his cell. The notes showed the offender had previously given a history of hearing voices since the age of 15, and of being in a psychiatric unit in 2016. An earlier doctor’s impression was that the offender suffered depression and possibly OCD, but there was no indication for psychiatric treatment.

35. The report gives some personal history, including that the offender states he has two sons, 14 and 16 with whom he was in contact when not in prison, but not whilst in prison. He says he is in a relationship and had been receiving the disability support pension based on his epilepsy. According to the offender, he was raised by his aunt, but was unaware why this was so, and it was only after re-establishing contact with his biological family that difficulties began, that is, drinking, cannabis use, and offending behaviour. The offender estimates having spent 10 years in custody.

36. Somewhat contrary to what might be expected, the offender maintained his life was stable prior to the offending. The offending gives a version of the lead up to the offending totally unsupported by the agreed facts, involving the offender having “pulled up” some unidentified male for offering drugs to the offender’s 12 year old cousin, with the male then pulling a knife, the offender disarming him, and in the melee, a female (presumably SW, but perhaps DC) being “accidentally injured”. In light of the agreed facts this is simply fanciful, and shows a total lack of appreciation on the part of the offender of the seriousness of his conduct. The offender denied drug use on the day, and said he had four alcoholic drinks. The offender denied any connection between his drinking habits and his criminal record. The offender denied drug use beyond a long history of using cannabis.

37. This report states there is no indication of a major mental illness. It notes that he is prescribed antidepressant medication and that the offender reports a history of mild obsessive compulsive disorder symptoms and mood instability. There is no requirement for intensive psychiatric care.

38. The offender tendered a psychologist report dated 9 February 2020, which became exhibit 1. The personal history given is largely consistent with that set out above, but adds an express denial of any exposure to violence or substance abuse whilst in his mother’s care, and also notes his biological mother’s family that he moved to be with in what seems to be his early teenage years engaged in criminal behaviour. The offender feels abandoned by his mother, and the report writer offers that appears to have had a destabilising impact on the offender.

39. All the employment of the offender has been “off the books”; given the offender is 40, and given his circumstances, it suggests a minimal work life. The offender said he had what the report describes as a dearth of paid work.

40. The offender was also consistent in saying he used no illicit substances beyond cannabis.

41. The offender told this report writer he had no recollection of the offending events, a different view than he told the psychiatrist though he did refer to his version of someone trying to give his nephew ice.

42. The offender stated that he was not easily angered nor typically aggressive. As the report writer notes, this is not consistent with either the offending or his criminal history.

43. The psychologist’s view is that the presentation of the offender was consistent with a mild but long term form of depression. Intervention is recommended, including upon release with New Horizons, a service the offender appears to have previously accessed.

Discussion and criminal history

44. These subjective features of the offender are somewhat uncommon. They suggest to me that the offender has little grasp on reality. If his own history of himself is accepted, this offending appears to have occurred in a period of stability in his life, in a life with little instability beyond being raised (and raised well) by his aunt, and then returning to his mother. The offender’s conduct has the appearance of being partly drug fuelled, but there is no evidence to support that beyond the conduct itself.

45. The submissions made on behalf of the offender admirably try to mitigate the offending, but are necessarily hampered by the facts. It was submitted that the wounding charges and the s112 charge were below the mid range of seriousness. This submission was founded on there being only one blow to SW, and minimal planning, and that the two wounding charges were part of the one course of conduct. The facts do reveal just the one blow, but the facts state after the first blow to SW, there was screaming in unit 7 followed by the offender being seen to have two long blades in both hands and was screaming “I’m gonna get you, you’se gonna play with me, I’ll get you”. It may have been only one blow to SW, but only because the offender was moving on to, as it turned out, DC. In arriving at my assessment of objective seriousness I considered these submissions.

46. I agree with the submission of the s112 charge being below the mid range of objective seriousness, but note the facts do not support the submission of the offender stopping fighting of his own volition; the fighting stopped because he ran away at a time he had been disarmed. On my reading of the facts the offender was losing the fight, so leaving it could not be said to have been done in some sense of recognition of wrongdoing.

47. The offender also relied on Bugmy and Fernando to suggest that where an offender comes from a community where alcohol abuse and alcohol related violence go hand in hand, and where the alcohol abuse of the offender is a reflection of the environment in which the offender was raised, it should be taken into account as a mitigating factor. The difficulty for the offender here is there is no evidence to support this submission. The offender’s own history suggests quite a different upbringing. I acknowledge that the offender’s history as given by him may be inaccurate, but that is a different thing to assuming the history to be something altogether significantly different.

48. The offender has a criminal history commencing at age 18 in 1998 with assault and drug charges. The offending that followed, included, without being exhaustive, in 2000 he had driving and drug convictions, as well as break and enter and stealing convictions. In 2003 there was an assault occasioning actual bodily harm. In 2009 there was common assault and again in 2013 and in 2015 he was imprisoned for 2 years with a non parole period of 18 months for the offence of being armed with intent to commit an indictable offence. In 2018 there was a further common assault.

49. Favourably to the offender there were significant periods during the period 2000 to 2013 of no serious offending. Adverse to the offender he has a long history of violence, and the current offending appears to be the most serious of all, despite a number of terms of imprisonment.

44. This record disentitles the offender to any leniency.

45. There is little before the court that suggests any great degree of insight by the offender into the seriousness of his anti-social behaviour, nor is there much to suggest a significant degree of remorse, or even regret. His various accounts of the events to the psychiatrist and psychologist suggest he does not take full responsibility for his actions.

46. No submission was made concerning a risk of institutionalisation of the offender, who has now spent approximately 10 years in custody. I have taken this into consideration in determining the non parole period.

Sentencing outcome

53. Section 3A of the CSPA sets out the purposes of sentencing. The more relevant purposes in this case in my view are clearly punishment, specific deterrence, and protection of the community. There is also a need for supervision upon release for as lengthy a time as may be permissible within the bounds of ensuring proportionality, that is, to ensure that the time in prison reflects the seriousness of this offending.

54. There is no doubt that the section 5 threshold is in this case crossed in respect of all the matters other than the assault occasioning actual bodily harm. Nor in my view is anything other than a full time custodial sentence appropriate. I will set out below the indicative sentences for the two wounding charges, the affray and the s112 charge, and I will then utilise s53A at arriving at an aggregate sentence. The one matter of most assistance to the offender is that I accept that the offending can be viewed as one course of conduct, albeit occurring at two distinct places. The aggregate sentence reflects what I consider to be the overall criminality of the four offences for which a term of imprisonment will be imposed.

55. As to the assault occasioning charge (sequence 9), I propose to deal with it by way of s10A, and record a conviction but with no penalty. I take this approach not because the conduct does not call for some penalty, but due to a combination of the very minor nature of the harm suffered by RR, the low seriousness of the offence when viewed in isolation, and the fact that when viewed overall the penalty that I am imposing renders further punishment impractical. Any ICO or CCO sentencing option would be concurrent with the term of imprisonment being imposed, and whilst an inability to pay may not altogether rule out a fine, my view is in the circumstances it is not appropriate.

56. The indicative sentences are:

1. S35(4); sequence 11:      3 years.

2. S35(4); sequence 12:      3 years.

3. S93C, affray; sequence 10:   18 months.

4. S112; sequence 7:         2 ½ years.

57. There will be an aggregate sentence of 5 ½ years, largely due to the fact of the offending forming one course of conduct.

58. There will be a non-parole period of 3 ½ years. This involves a finding of special circumstances. There is a likelihood in my view that there are unresolved matters of the offender’s history requiring counselling, and possibly a greater involvement by the offender in drug use beyond cannabis. In either case a longer period of supervision to seek to identify and address these issues is appropriate. There is also the risk of institutionalisation justifying this course.

ORDERS:

59. Douglas Edward Hoskins, of the 5 offences set out above to which you have pleaded guilty you are convicted.

60. In respect of the assault occasioning actual bodily harm charge, sequence 9, I proceed by way of s10A and there will be no further penalty.

61. In respect of the remaining 4 charges I have set out the indicative sentences above.

62. Pursuant to s53A I impose an aggregate sentence of 5 ½ years to commence from 31 January 2019 and expiring on 30 July 2024.

63. There will be a non-parole period of 3 ½ years, commencing on 31 January 2019 and expiring on 30 July 2022.

64. The earliest date for release is 30 July 2022.

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Decision last updated: 19 June 2020