R v Hunter

[2021] NSWDC 728

District Court

New South Wales

Medium Neutral Citation:

R v Hunter [2021] NSWDC 728

Hearing dates:

2 November 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Criminal

Before:

R. J. Weber SC DCJ

Decision:

(1) You are convicted of the offences which bring you before the Court.

(2) You are sentenced to a term of imprisonment of 1 year and 10 months.

(3) I order that such term of imprisonment be served in the community by way of Intensive Correction Order.

(4) I order that such Intensive Correction Order commence from today (15 December 2021), to expire 14 October 2023.

(5) The Intensive Correction Order will be subject to the following conditions:

(a) That you be of good behaviour and not commit offences;

(b) That you submit to supervision by a Community Corrections officer;

(c) That you complete your current course of treatment at the residential facility known as the Restoration Centre at Kellyville in New South Wales (“The Restoration Centre”);

(d) Thereafter that you remain as an outpatient and subject to the reasonable directions of Mr Mitchell Sanderson, the General Manager of the Restoration Centre.

(e) That upon completion of your course of residential treatment at the Restoration Centre, you reside with your father, Eric Hunter, at 14/218 Box Road, Miranda, or such other premises as your father may occupy from time to time;

(f) That you attend such rehabilitation courses or undertake such treatments or courses as may be required of you by the Restoration Centre and/or a Community Corrections Officer;

(g) That you abstain from alcohol and drugs which are not prescribed to you;

(h) That you undertake 12 hours of community service work per month.

(6) I direct that you attend on the registry forthwith to acknowledge these terms of the Intensive Correction Order, and to have them explained to you.

(7) I direct that you report to the Community Corrections office at Sutherland no later than 22 December 2021, such reporting to be by telephone.

Catchwords:

CRIME – robbery in company – demanding property with menaces with intent to steal

SENTENCING – Relevant factors on sentence – Quasi custody – drug addiction from early age – offence committed on conditional liberty

SENTENCING – Penalties – Intensive correction orders – accounting for time served and quasi-custody

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Legge v R [2007] NSWCCA 244

Mandaris v R [2021] NSWCCA 97

Markarian v The Queen (2005) 228 CLR 357

R v Edelbi [2021] NSWCCA 122

R v Henry (1999) 46 NSWLR 346

R v Jurisic (1998) 45 NSWLR 209

R v Pullen [2018] NSWCCA 264

Category:

Sentence

Parties:

Ethan Hunter (Offender)
Regina (Crown)

Representation:

Counsel:
Mr R Webb of Counsel (Offender)

Solicitors:
The Office of the Director of Public Prosecutions (Crown)
Astoria Lawyers (Offender)

File Number(s):

2020/0041982; 2020/0098963

Publication restriction:

None

Judgment

1. The offender comes before the Court having pleaded guilty to one count of robbery in company. This is conduct contrary to the provisions of section 97 (1) of the Crimes Act 1900 (NSW) (“Crimes Act”). It carries a maximum term of imprisonment of 20 years, with no standard non-parole period.

2. He also stands before the Court for sentence on one count of demanding property with menaces, with intent to steal. This is conduct contrary to the provisions of section 99 (1) of the Crimes Act. This offence carries a maximum penalty of a term of imprisonment of 10 years, and no standard non-parole period.

3. The offender also asks that a further count of robbery in company and a count of attempted robbery in company be taken into account on a Form 1, both attaching to the principal robbery in company count. In addition, he asks that a count of resisting an officer in the execution of his duty contrary to the provisions of section 546C of the Crimes Act be taken into account on a Form 1, in connection with the demand property with menaces offence.

4. I have taken into account the Form 1 matters in relation to the offences to which they are attached, and in doing so I have increased the penalty which I would otherwise have imposed in relation to each relevant offence to reflect both the need for personal deterrence, and the community’s expectation for retribution.

The Plea of Guilty

5. Prior to these sentence proceedings, the matter was before the Court for trial, and the offences were Counts on separate indictments. The matter was listed for trial on 28 June 2021, however, due to issues arising out of the COVID-19 pandemic, all trial matters were adjourned on that day. The matter was adjourned to 30 June 2021, on which day a plea of guilty was entered by the offender in relation to the offences with which I am concerned. The Crown accepts that the plea should entitle the offender to a 5% discount on any sentence which he otherwise might have received. This was not put in dispute by the offender.

Agreed Facts

6. The matter proceeded by way of agreed facts, which can be briefly stated.

Robbery in Company

7. At about 9:00 pm on 8 February 2020, three 19-year-old males were walking through a small alleyway to access the Kingsway at Caringbah. They were heading to their car. They came across the offender and his co-offender, a young person, both of whom were walking towards the three males.

8. The co-offender asked the group if they had “a spare dollar”. One victim said that they did not. In response to this the offender and co-offender pushed the victims up against a fence and asked them what was in their wallets, to which the victims reiterated they didn’t have any money.

9. The offender and the young person told victims to show them their wallets. While against the fence, one of the victims said, “I will give you a few dollars if you want, we don’t want any trouble.” In response the offender said, “We don’t want to hurt you. We’re good people. We only want your money.” However, the co-offender also said, “Don’t fuck with us”.

10. One of the victims got out his wallet with the intention of handing over some money to prevent the incident turning violent. In response to this, the offender snatched the wallet from the victim, took out all the notes, and gave him the wallet back. The amount taken was $160.

11. Another of the victims was concerned that the situation may further deteriorate, and he showed the offender and his co-offender that his wallet had no money in it. The third victim tried to walk around the offender, however the co-offender stood in his way. The co-offender put his hand in the third victim’s pocket and pulled out his wallet. He searched through it and took all the money which was inside. This amounted to $3.

12. The offender and his co-offender then ran away. They were arrested at 11:05pm near Miranda train station.

13. The offender was granted conditional bail at Central Local Court on 9 February 2020.

The Demand Property Offence

14. At about 6:25 am on 31 March 2020, the victim Michael Elias was walking to a takeaway shop at Gymea for the purposes of buying himself a cup of takeaway coffee. As he passed Warburton Street, he heard footsteps behind him. When he was outside the cafe on the street, he heard a male voice say, “Empty your pockets. I’ve got a knife towards your back.” The male voice was the offender’s.

15. The victim did not turn around, instead he pointed to the cafe and said, “There is a camera”. The victim then turned to face the offender, and noticed that the offender’s fists were clenched, but he did not possess a knife. The victim backed away while the offender stood his ground. The victim called out to the offender, “Stay there, I’m going to call the cops.” At this the offender turned around and ran, the victim then went into the cafe and called the police, who arrived shortly thereafter.

16. Police located a male matching the description which the victim provided to police walking down a nearby street. This was the offender. He was asked to come over to police vehicle, however he ran away and Senior Constable Inglis pursued him on foot for some distance.

17. The offender ran down a laneway behind a number of businesses located adjacent to Kirrawee railway station. Senior Constable Inglis caught up with him, grabbed him, and pulled him down. The offender was placed under arrest, however he attempted to break free, causing both the offender and Senior Constable Inglis to fall onto a table. The policeman pulled the offender off the table, who continued to resist. Senior Constable Inglis was eventually able to restrain the offender.

Objective Seriousness

18. The Crown submitted that both the robbery in company offence, and the demand property with menaces offence fell to be considered as below the midrange, but not in the low range. This was not put in contention by the offender. I agree with this assessment and shall proceed to sentence accordingly.

Aggravating Factors

19. The Crown submitted that each of the offences were aggravated by dint of the fact that they were committed while the offender was on conditional liberty. At the time of both offences, the offender was subject to a 12-month bond from the Children’s Court for affray. In relation to the demand property offence and the resist officer offence, in addition to the Children’s Court Bond, the offender was on bail for the robbery in company offences. The offender accepted that the fact that the offences were committed while he was on conditional liberty was an aggravating factor.

R v Henry Guideline Judgement

20. The parties were also in agreement that the offender’s characteristics, and the nature of the offending in respect of the robbery in company offence fell to be determined by reference to the guideline judgement of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. In that judgment, Spigelman CJ at [165] stated that, “An offence of the character identified above should generally fall between 4 to 5 years for the full term.”

21. The authorities make clear, however, that R v Henry is a guideline to be taken into account, but not to be applied slavishly. Rather, it is to be used as a “check” or “sounding board” or “guide”.

General and Specific Deterrence

22. The Crown submitted that any sentence should contain an element of general deterrence, given the ubiquity with which offences are committed and the relative ease with which these offences can be committed on unsuspecting members of the community.

23. The Crown submitted that there should also be an element of specific deterrence due inter alia to the fact that the offences were committed while the offender was on conditional liberty.

24. I accept both submissions, which I did not understand the offender to put into dispute.

The Offender’s Subjective Circumstances

25. The offender was born in 2001. At the time of the offences, he was thus 18 years of age. He has recently turned 20.

26. The offender provided a history to Mr Tim Watson-Munro, a consultant psychologist upon whom he attended. He told Mr Watson-Munro that when he was 5 years of age his parents’ marriage broke down. He remained in the custody of his mother for about two years, before moving to live with his father. He has basically lived with his father ever since that time. Mr Watson-Munro stated that the offender described his relationship with his parents as “tense”. He also described that the offender had some difficulties with his mother’s partners.

27. The offender left high school in year nine, when he was about 14 years of age.

28. Upon leaving school, he commenced work as a labourer. He worked in that capacity for various employers. He also commenced an apprenticeship as a metal roofer, which he undertook for 18 months. This employment was interrupted due to problems related to the offender’s drug addiction, and his associated psychological problems. His employment was also, to some extent, interrupted due to the fact that he was in a residential drug rehabilitation programme, a topic to which I will return.

29. The offender told Mr Watson-Munro that he commenced using cannabis aged 12. He commenced drinking alcohol at the age of 13, which escalated to the point where he was a heavy drinker by the time of his 15^th birthday. He drank to such an extent that he experienced regular alcoholic blackouts. In addition, at age 14 he began to abuse benzodiazepines, which by age 15 had led to a daily habit involving 20 mg of the drug per day.

30. He was refused bail in respect of both matters following the demand property with menaces offence. While on remand, he commenced using heroin in prison, and progressed from smoking that drug to its intravenous use.

31. Subsequently, when he was released on bail, a condition of that bail was that he attend a residency at the Restoration Centre located in Kellyville. He is currently there on a residential Buprenorphine Opioid Replacement program.

32. In a letter from Mr Mitch Sanderson, the operations manager of the Restoration Centre, Mr Sanderson reports that the offender is a valued participant in the rehabilitation program. He gave evidence as to the offender’s ready engagement with various programs at the Centre. Mr Sanderson reports that the offender is at milestone four of a four milestone program designed to allow the offender to be equipped for a more positive future.

33. He reports that the offender has expressed his desire to stay at the Restoration Centre beyond the completion of his current program, for an extended period in order to identify areas of his life that need further restoration.

34. Mr Sanderson says that “Ethan has shown a growing understanding of some of the root causes which lead to his addictive lifestyle and is addressing trauma with counsellors and care workers through teaching and one-on-one sessions.”

35. The offender’s progress while at the Restoration Centre, however, has not been linear. At some stage, he was released from the program for the purposes of undertaking work. Upon his release, he recommenced drinking, and ultimately drove a motor vehicle while intoxicated and unlicensed. This led to him being charged by the police. Following this incident, he was referred by the Restoration Centre to a hospital for detoxification treatment. He has now returned to the Restoration Centre.

36. The offender enjoys the support of his father, who has indicated that upon release he will arrange for the offender to stay with him. He also enjoys the support of his partner of four years.

37. Mr Webb of counsel, who appeared for the offender, while accepting that the need to acquire funds to feed a drug habit was not in and of itself a matter of mitigation, pointed to the decision of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at 398. In that decision, his Honour stated that drug addiction may be relevant as a subjective circumstance where “it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgement or choice was incomplete” (see R v Henry at paragraph 273(c)(ii)).

38. Mr Webb submitted that given the particularly young age at which the offender fell into a life of addiction, his drug addiction was relevant to the sentencing synthesis in this manner. I agree with this submission.

Contrition

39. Mr Webb asserted that while there was no explicit evidence of contrition, the offender’s plea of guilty was at least some evidence of contrition. He also submitted that the guilty plea provided some evidence of a degree of insight into the consequences of his offending for his victims.

40. I believe that the extent to which contrition can be divined from the plea is limited indeed, as on any view of it the Crown case was strong.

The Section 5 Threshold

41. The parties were in agreement that the section 5 threshold had been crossed, and as such the only appropriate penalty for the offender was one of imprisonment.

42. The Crown took the view that a full-time custodial sentence was the preferred sentence, although in fairness it did not suggest that the imposition of an Intensive Correction Order (ICO) was outside an appropriate range. The Crown put its position as being that such a sentence was one that was within my discretion.

43. Mr Webb respectfully cautioned me against considering that either the decision in Henry or that in R v Jurisic (1998) 45 NSWLR 209 were authority for the proposition that exceptional circumstances must be demonstrated before a sentence of less than the sentence guideline range promulgated in Henry may be imposed.

44. In that regard, Mr Webb drew my attention to Legge v R [2007] NSWCCA 244 at 44 where Simpson J (as her Honour then was), with whom Spigelman CJ and Harrison J agreed, warned against considering that R v Henry effectively mandated a custodial sentence.

45. The Crown did not submit to the contrary, as must have been implicit in any event from its concession that an ICO was within my discretion.

Time in Custody

46. The offender has spent 15 months and 12 days in custody referable to both sets of offences. He is currently on bail. In addition to being held on remand, as I have indicated, he has attended the residential course at the Restoration Centre as a condition of his bail. Both parties were agreed that this period of attendance at the Restoration Centre, amounting to approximately a year, should be considered to be quasi-custodial. The Crown suggested that it would be appropriate to consider it to be 50% custodial. I accept that analysis.

Aggregate Sentence

47. I propose to deal with this matter by way of an aggregate sentence. I have taken this course as, in my view, this approach best accommodates the requirements of proportionality, accumulation, concurrence and totality.

48. Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) Crimes (Sentencing Procedure) Act 1999 (“Sentencing Act”).

49. I am also required to indicate the sentences I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence (s 53A(2)(b) Sentencing Act).

50. In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. The aggravating and mitigating factors to which I have referred have also been taken into account.

51. As to the discount for the guilty plea, this has been applied to each indicative sentence and thus derivatively to the aggregate sentence (with rounding down to the offender’s benefit).

52. The matters attached on a Form 1 have also been taken into account in the manner which I have indicated.

53. In arriving at both the indicative sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].

Indicative Sentences

54. The following indicative sentences are head sentences (Dimian v R [2016] NSWCCA 223, at [49]) and are as follows:

Count/ Sequence/H Number	Description	Indicative Sentence (and NPP if applicable)
Count 1 (of proceedings ending 982)	Robbery in company, with two Form 1 matters attached	2 years 10 months
Count 1 (of proceedings ending 963)	Demand Money with Menaces, with a Form 1 matter attached	3 months

The Term of Imprisonment

55. Before consideration of whether an ICO is appropriate, it is first necessary to determine the duration of the sentence to be imposed on the offender. Taking into account the objective seriousness of the offending, the age of the offender, together with the aggravating factors to which I have earlier referred, I have come to the view that the appropriate course is that the offender be sentenced to a term of imprisonment of 3 years.

Consideration of an ICO

56. When determining whether to make an ICO, community safety must be the Court’s paramount consideration (see section 66(1) Sentencing Act). That said, when considering community safety, the Court must assess whether the making of an ICO on the one hand, or serving a sentence by way of full-time detention on the other, is more likely to address the offender’s risk of reoffending (see section 66 (2) Sentencing Act).

56. This requirement recognises that community safety is not necessarily served simply by incarcerating an offender, but rather that incarceration may have the opposite effect. In many cases, community safety may also be linked to considerations of rehabilitation, which is often more likely to occur with supervision, and access to programs in the community (R v Pullen [2018] NSWCCA 264 at [84]).

57. I have come to the view that, in all the circumstances to which I have earlier referred, community safety, the risk of reoffending, and especially the furtherance of the offender’s rehabilitation, together point to the desirability of the term of imprisonment which I am about to impose to be served in the community by way of an Intensive Corrections Order.

58. I propose to reduce the term of the sentence of 3 years imprisonment to take into account the offender’s time served in custody and quasi custody. This, as I understand it, is a course which is open to me (Mandaris v R [2021] NSWCCA 97 at [61]; R v Edelbi [2021] NSWCCA 122 at [80]). The sentence so reduced is one of imprisonment of 1 year and 10 months. This sentence is also rounded down to the offender’s benefit.

59. I have caused to be prepared a Sentencing Assessment Report which confirms the offender’s suitability for an ICO. It assesses his risk of reoffending as “medium”. As I have earlier indicated, I tend to the view that this risk may be a little lower than that.

Sentence

61. Ethan Hunter, stand.

1. You are convicted of the offences which bring you before the Court.

2. You are sentenced to a term of imprisonment of 1 year and 10 months.

3. I order that such term of imprisonment be served in the community by way of Intensive Correction Order.

4. I order that such Intensive Correction Order commence from today (15 December 2021), to expire 14 October 2023.

5. The Intensive Correction Order will be subject to the following conditions:

1. That you be of good behaviour and not commit offences;

2. That you submit to supervision by a Community Corrections officer;

3. That you complete your current course of treatment at the residential facility known as the Restoration Centre at Kellyville in New South Wales (“The Restoration Centre”);

4. Thereafter that you remain as an outpatient and subject to the reasonable directions of Mr Mitchell Sanderson, the General Manager of the Restoration Centre.

5. That upon completion of your course of residential treatment at the Restoration Centre, you reside with your father, Eric Hunter, at 14/218 Box Road, Miranda, or such other premises as your father may occupy from time to time;

6. That you attend such rehabilitation courses or undertake such treatments or courses as may be required of you by the Restoration Centre and/or a Community Corrections Officer;

7. That you abstain from alcohol and drugs which are not prescribed to you;

8. That you undertake 12 hours of community service work per month.

6. I direct that you attend on the registry forthwith to acknowledge these terms of the Intensive Correction Order, and to have them explained to you.

7. I direct that you report to the Community Corrections office at Sutherland no later than 22 December 2021, such reporting to be by telephone.

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Decision last updated: 03 February 2022