R v Hurst

[2018] NSWDC 524

District Court

New South Wales

Medium Neutral Citation:	R v Hurst [2018] NSWDC 524
Hearing dates:	09 August 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 3 years 9 months with a non-parole period of 1 year 9 months
Catchwords:	CRIME — Property offences — Destroying or damaging property CRIME — Violent offences — Reckless wounding SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Non-parole period — Standard non-parole period — Muldrock error SENTENCING — Non-parole period — Standard non-parole period — Statutory provision for standard non-parole period for Table offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Purposes of sentencing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Callaghan [2006] NSWCCA 58 Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Nathan Leigh Hurst (Offender)
Representation:	Felicity Martin (Crown) Leigh Haywood (Offender)   Director of Public Prosecutions (NSW) (Crown) Legal Aid (Offender)
File Number(s):	2017/00124758

EX TEMPORE REVISED JUDGEMENT

1. Nathan Hurst is 39 years of age. I must say this is a case that has been well presented on his behalf, including that the explanation for his offending has been explained and supported by a psychological assessment which has been helpful, demonstrating I believe why he is in his present circumstances.

2. The essence of his difficulty is that he had a very difficult life in his formative years because of his father’s propensity for violence. He had in addition to that mental health issues which contributed to his resort to prohibited drugs, particularly when he began to self-medicate when his prescribed medication had expired. He evolved into what appears to have been something of a dependent personality in relationships, all of which have failed, notwithstanding his desire that they continue. That in turn, it appears, led to a sense of abandonment and with inadequate capacities to cope he resorted to violence that ultimately led to the commission of the offence of reckless wounding and to damaging property on 25 April 2017 in the circumstances that I shall describe shortly.

3. He thus is presented for sentence upon a charge contrary to s 35(4) Crimes Act 1900, a charge of reckless wounding for which the maximum penalty is imprisonment for seven years with a standard non‑parole period of three years. He is also presented on a charge of damaging property contrary to s 195(1)(a) Crimes Act 1900 for which the maximum penalty is imprisonment for five years.

4. The standard non‑parole period is a matter that must be brought to account as part of the assessment of appropriate sentence for the charge of reckless wounding. The provisions introducing standard non‑parole periods are set forth in Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 amended to their present form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.

5. Section 54A(1) Crimes (Sentencing Procedure) Act 1999 provides that the standard non‑parole period for an offence is that which is included in the table to the provisions. Section 54A(2) Crimes (Sentencing Procedure) Act 1999 provides that the standard non‑parole period represents the non‑parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of that offence, that falls within the middle of the range of objective seriousness. Section 54B(2) Crimes (Sentencing Procedure) Act 1999 provides the standard non‑parole period is a matter to be taken into account when determining appropriate sentence without limiting the matters that are otherwise required and permitted to be taken into account. Section 54B(3) Crimes (Sentencing Procedure) Act 1999 requires that the Court record its reasons for setting a non‑parole period that is a longer or shorter period, identifying each factor taken into account. Objective gravity of this offence will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing to account relevant factors provided in s 21A of the Act except for those that are essential elements or integral characteristics of the offence.

6. The fixing of the non‑parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical staged or a tiered process of reasoning when assessing appropriate sentence, but must identify all relevant matter bearing on the question of the appropriate sentence and the process of intuitive synthesis discussed for example by McHugh J in Markarian v R [2005] HCA 25. In the determination of sentence for offences for which there is specified a standard non‑parole period, it and the maximum penalty are legislative guideposts for the sentencing Court, along with other established sentencing practices and by reference to matters identified where relevant in s 3A, 21A, 22, 22A and 23 of the Act.

7. Applying these principles I find that the objective gravity of the offence specified to have a standard non‑parole period falls about middle range of objective seriousness. This is always a matter of judgement and I accept that minds will differ upon precisely where a particular event might fall. But doing the best I can, that is the view that I have formed.

8. It does not follow however, that the standard non‑parole period will be applied because one must synthesise with the objective assessment the balance of the material that is presented dealing with objective and subjective matter including the extent of contrition and remorse and prospects for rehabilitation. When I come to announce the indicative sentence for this offence I shall specify the non‑parole period that would have otherwise been imposed were this offence being resolved alone.

9. I propose an aggregate sentence and I have brought to account that the misconduct is within the one sequence of offending. There must be some accumulation but also a significant amount of concurrence in the indicative sentences that I have adopted. I must also bring to account that whilst awaiting the resolution of this matter the offender served a sentence of imprisonment and thus, to reflect totality, and to adopt a non‑parole period that will give full effect to my finding of special circumstances, I must bring to account that period which comprised the custodial component.

10. He was in custody from 11 July 2017 to 10 April 2018 serving the custodial component of that sentence. Thereafter he was entitled to his release to parole but was in custody bail refused in respect of these matters at the same time and therefore parole was not granted to him.

11. There is discretion available to me in accordance with the decision of Simpson J in the decision of Callaghan [2006] NSWCCA 58 when it comes to identifying the commencement of the sentence of imprisonment. In this case the Crown has helpfully provided me with the period of time referable only to this misconduct; as of today that is a period of 125 days. I propose to commence the sentence therefore on 7 April 2018. When determining the custodial component of the aggregate sentence I will reflect the period of 11 July 2017 to 10 April 2018 which must be brought to account.

12. The offender pleaded guilty to each of these charges in the Local Court and from there was committed for sentence. Because of administrative requirements he was presented yesterday by way of an indictment in respect of the reckless wounding charge. To that offence he pleaded guilty upon arraignment. He is still though entitled to the discount of 25% because of the plea that he entered in the Local Court. He is similarly entitled a discount of 25% for the plea of guilty to the damage charge entered in the Local Court to which he adhered in the Court before me today. The discount will apply to each of the indicative sentences that I have selected and it is applied to those sentences selected after consideration of the subjective and objective factors including contrition, remorse, and prospects for rehabilitation.

13. The victim of these events is RH, was 33 years old at the time. The offender, 37 when he committed the offences, believed that RH was in a sexual relationship with the offender’s ex-partner. I pause to interpolate that the offender’s relationship is at an end and although there is reference in the pre‑sentence report to the offender expressing at least hope if not a belief that the relationship was extant, it is clear from his former partner that the relationship is at an end, and was so at the time of the preparation of the report.

14. In March of 2017 the victim was at the partner’s house about 11pm. The offender went there; his former partner told the victim that the offender was her “ex” and that there was in existence an apprehended violence order against him which must have been for her protection. From outside the house the offender yelled to the victim, “Just tell me who you are, it’s time for you to leave. Fuck off, she’s my missus, I live here.” The victim replied that he had called the police and the offender left.

15. The weekend after the offender had come to the house the victim drove down Main Street in Lithgow. The offender was driving a car ahead of him. He stopped, got out and said to the victim, “Just pull over, I want to talk.” The victim said, “Not on Main Street, just pull over in one of the back streets.” The offender re-entered his vehicle and drove away and turned left down the side street but the victim continued on and drove off without following. About an hour after that conversation the victim was driving his car in Lithgow near a shop. The offender saw the victim, stopped his vehicle and said, “I just want to talk.” They both pulled their vehicles over to a place nearby. The offender got out and approached the victim and said, “I just want to know if she’s lying. What were you doing around there?” The victim replied, “I just went around there, if you have any dramas, ring me.” The victim gave the offender his mobile phone number.

16. At a later date in March 2017 the victim received a phone call. The offender made the call. He asked “Have you been seeing her?” The victim said, “No.” The offender said, “She’s been saying that she’s been seeing you.” The victim asserted, “I haven’t been seeing her.” The offender said, “Thanks for telling me.”

17. Against that background, about 10.10am on 25 April 2017 the victim received three missed calls from the offender. The offender called the victim again at 11.03am and this time the victim answered. The offender said “Are you around? I’ve got something for you.” The victim said, “Just coming in to town from Hartley side.” The offender said, “As you come in to Lithgow there’s a street on your left hand side, there’s a cemetery there, I’ll meet there.” As the victim approached the cemetery he saw the offender’s car. The offender turned into a street next to the cemetery. The victim saw the offender sitting in his vehicle. The victim parked his car alongside of the offender’s. The driver’s side window was down, the offender said “How are you going mate?” and alighted. He walked immediately to the front driver’s door carrying a one metre long black crowbar. The crowbar had a curved end. The offender struck the windscreen of the victim’s car at least twice smashing it and putting two holes through it. The damage was on the front driver’s side. The victim put his hands over his face to protect himself from broken glass. The offender moved closer to the driver’s door, he hit the roof of the car with the crowbar four to five times causing damage. The victim yelled, “What are you doing?” The offender hit the driver’s side mirror of the car causing damage to it.

18. The victim tried to get out of the car. He opened the door but the offender struck his right wrist with the crowbar. This caused the victim immediate pain. The victim’s right leg was outside of the car, the offender struck his foot with the crowbar, the victim was wearing steel capped work boots which provided protection but still he suffered pain from the blow. The offender then struck the victim’s right leg on the outside midway between the knee and the ankle. This caused a large cut to the leg which bled immediately. The victim ceased attempting to alight from the car and closed the door. The offender hit the victim’s car again smashing the rear quarter panel window. The victim initially dropped his keys but picked them up and started the car. The victim drove away while the offender continued trying to strike at the vehicle.

19. The victim drove to Marrangaroo petrol station where he stopped and called police. The victim walked into the petrol station between 10.30 and 11. The attendant there saw a 10 centimetre gash to the right leg; she asked if he was all right. The victim in graphic language made representations about what he had just suffered. He told her that he was waiting out the back for the police to arrive.

20. At hospital the wound was assessed to be a 20 centimetre laceration to the right leg, with a minor contusion and abrasion on the right arm and foot, the laceration required ten stitches. There was follow-up management by the offender’s general practitioner but there’s nothing before me to indicate that the injury did not heal in due course, or that the victim was left with any significant sequelae. The injury is described in the following terms in para 20,

“The victim was treated at hospital. The primary injury received by the victim from the attack was a 20 centimetre laceration to his right calf. The laceration penetrated the epidermis and dermis but did not involve deep tissues. The wound was treated with ten stitches.”

21. There is nothing before me to indicate the extent of scarring but it is probable one must accept that there would be at least some scarring as a result of the wound.

22. The Crown in written submissions summarised the facts and invited my attention to relevant authority. The assessment of the objective gravity of the damage offence must be determined in accordance with the entirety of the facts and circumstances in question. The Crown points to the motivation of the offender for this attack. It must have included intimidation of the victim to discourage him from association with his former partner. The damage caused to the motor vehicle was significant. One might say extensive in the circumstances. I have been provided with the photographs showing the damage to the car. I agree with the Crown submission that this offence falls about mid-range.

23. The factors identified with regard to the reckless wounding include the extent of the injury, the manner in which the injury was inflicted, and in this regard I note that the offender was armed with a metal crowbar held in such a fashion as to cause the contusions and the wound when it was used to strike the blows. Such a weapon is capable of causing significant harm. Again, this was an offence one would find to intimidate the victim. There is the context of the offence wherein the offender perceived a relationship between the victim and his former partner. There is no provocation at all that would justify such an attack. There must have been an element of premeditation involved in having the victim attend the location as the offender did and the immediate violence that was offered. I am satisfied that the offence, as I have indicated, for these reasons fall within the middle of the range of offences of this kind.

24. The offender regrettably has antecedents which impact upon the extent to which he is entitled to leniency and relevant to the assessment of the extent to which specific deterrence must be brought to account in the assessment of sentence.

25. His first Court appearance was in January 1997 in a Children’s Court and thereafter he has appeared frequently. His offences have been possession of prohibited drugs, self-administration of prohibited drugs, custody of a knife in a public place, using unregistered, uninsured motor vehicles, driving unlicensed, again drug related offences of possession of equipment for self-administration. There are multiples of these offences on his record. Common assault, contravening apprehended violence orders, driving whilst disqualified. It is of concern that he has been frequently detected having custody of a knife in a public place. Damaging property, intimidation, and the list continues in the antecedent report that extends over 13 pages.

26. He has used his time in custody since his arrest for this offence productively. There are no custodial offences recorded against him, and the material tendered on his behalf includes certificates of achievement in various respects. Moreover he has embraced his faith; that is reflected in the letter provided by Chaplain Keith Ham from Bathurst Correctional Centre recording the offender’s regular attendance at church services. He has written a letter expressing contrition and remorse and representing that he is taking responsibility for what he described as mistakes. I would not apply that word to his misconduct but I understand the spirit in which the representations are offered. He has expressed his regret, his wish to apologise to all concerned, the time in prison has allowed him time to reflect, and realise the contribution he has made to his circumstances, and his determination is to make positive changes in life, to abstain from drugs and alcohol and to pursue employment in the Bathurst Correctional Centre. He recognises the nature of his wrongdoing. He refers to his status I should say as a loving partner and his role as a caring father to three children.

27. He has not given evidence and the Court is obliged in such circumstances to assess representations of contrition and remorse and the prospects of rehabilitation with appropriate circumspection in accordance with what was said in Qutami [2001] NSWCCA 353 specifically the judgement of Acting Justice Smart. I have taken this approach in assessing this material but in this case I am assisted by evidence given by his sister who I found to be a persuasive witness, and a positive pre‑sentence report. His sister confirmed the history to which the psychologist referred in the report written on 12 July 2018.

28. The offender was the eldest child in the family. His father who is since deceased, provided one might say a toxic environment, including abuse of alcohol and domestic violence in the course of which the offender would intervene in the protection of his mother, and thereupon suffer his father’s ire and beatings. I accept the submission that the principles in the decision of the High Court of Bugmy apply in this case, and there can be no doubt that such experiences for a child in his formative years will impact upon the balance of his life and must be brought to account each and every time he might find himself before a Court. But I also accept that his custodial experience has given him the opportunity to reflect and to see another way forward. I accept the evidence given by his sister, that he recognises that he has to step up to change attitudes, to see himself as the person responsible, at least in a significant measure, for his present predicament, and that notwithstanding what befell him as a child and through his formative years, at this stage of life he cannot continue to see himself as a victim but must make a change.

21. He has a caring and supportive family. The pre‑sentence report speaks of his past supervision which was at times the subject of breach reports, though generally his response to supervision was satisfactory. The report refers to his well respected and stable family. It rehearses his long history of drug use, including prescription and prohibited drugs which he consumed to deal with his emotional state from time to time including anxiety and depression and adult attention deficit hyperactivity disorder for which he was prescribed medication by psychiatrist upon expiration of which he resorted to methylamphetamine. I observed in the course of argument that the image of the offender on the antecedent report is consistent with someone under the spell of that poison, but as he presents in the dock here before me today, he exhibits what I would think is robust good health and it is clear that he has not been, at least according to my perception, that he has not been in recent times using prohibited drugs.

22. He is attributed with the following in the section dealing with his attitude to offending,

“Mr Hurst expressed his remorse at committing the offences; however there was an element of blame towards the victim, who he claimed was taunting him about his relationship with his ex‑partner. He denied that the weapon was his, but also admitted that he was well-effected by drugs and unclear about the details of the offence.”

31. First of all I should say the intoxication that resulted from the self-administration of substances is not a mitigating factor by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999. I would also observe however that the attitude attributed to him in the report seems to have dissipated. First he pleaded guilty and signed a statement of facts in which there is no suggestion that he was under the influence of taunting by the victim, and he has thereby acknowledged his possession and use of the crowbar in this attack. Thus whatever the author of the report perceived in the representations to him I accept that at the very least since that time he has abandoned any sense of victimisation or justification for embarking upon what was serious criminal misconduct.

32. He has criminogenic needs identified which are to do with alcohol and drug problems, his emotional and personal circumstances, and his attitude and orientation. He will benefit from extended supervision in the community. He is unsuitable for Community Service, but that is not a sentencing option available in the circumstances of this case. The line in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed and nothing other than a custodial sentence will suffice to meet the circumstances of this case.

33. The Crown in its submission brings to my attention his antecedents, the approach one must take to a record of convictions. His antecedents as indicated do inform the extent to which specific deterrence must be given weight, and it also informs the need to provide protection to the community because ultimately the criminal justice system and the role of judges when sentencing is to achieve a sentence which is appropriate in all the circumstances including the extent to which it will where possible protect the community from such behaviour by the offender.

34. The Crown has reminded me of what is required for a finding of special circumstances. It is the view of some that Courts are being generous in approach to these matters, but this case, particularly in my view the process of rehabilitation which I accept is underway, must include a significant period under supervision in the community to facilitate those prospects for rehabilitation which I believe are likely to be successful.

35. Turning to the psychologist report, which I accept, noting that the psychologist was not required for cross‑examination, and without rehearsing the detail of the unfortunate history this man has suffered in his formative years, it is quite apparent that he had his psychological challenges through life, including ADHD. He was subject to appalling conduct on the part of his biological father. I agree with the opinion offered by the psychologist that there was at least a measure of neglect and psychological abuse including the physical abuse of which I have heard from his sister. I accept that the material supports a finding that he experienced depression and that in due course these various factors led to a sense of worthlessness. His relationship with his mother is improved and indeed his relationship with his father improved after the age of 15 years, but regrettably his father committed suicide when the offender was aged 25 and this has left him with symptoms of post-traumatic stress the product of the fact that he found his father’s body.

36. He was disruptive in school throughout his schooling and exhibited violence. In light of what befell him and the challenges he faced in that period of time, perhaps the facilities available to manage such a student were not as extensive or reliable as they might have been. Ultimately he was expelled from school. Notwithstanding his lack of education and difficulties with literacy he was able to obtain a trade certificate as a fitter and turner and welder, primarily because he was able to complete the practical aspects of his course with some assistance upon the theoretical aspects with which he struggled, but with which he received assistance from his course co‑ordinator. He has been gainfully employed throughout his life from the age of twelve. He spoke of having been rendered unconscious on occasion from the physical abuse he suffered as a child. There is a summary of the medications administered throughout his life, including at the age of 30 by way of the Hills Clinic at Castle Hill.

37. The assessment included the proposition that he demonstrated limited insight into his functioning in intimate relationships, there is a history of his failings in that regard and the challenges that were exacerbated with his deterioration and misuse of methylamphetamine. The position is succinctly stated in para 19 on the following terms;

“... Mr Hurst demonstrates difficulty in maintaining long term stable relationships which I suggest results from his skill deficits in intimate relationships, emotional regulation issues, substance abuse, distrust and domestic violence.”

38. There can be no doubt that his background and his psychological difficulties have contributed to the findings upon that assessment and thus I am of the view that this offender is in need of long term supervision in the community; it will be a matter for the parole authorities to identify precisely what his needs will be drawing upon the assistance provided by the psychologist’s report and the resources that will be available to him when he is eligible for parole.

39. I indicated in the course of argument a sentence of three years and nine months including non‑parole period of two years. Upon reflection, I believe the non‑parole period should be one year and nine months to bring to account the custody that he has served for the offence which was resolved whilst he was awaiting determination of this matter. The sentence will commence on the 7 April 2018 as I indicated.

40. For the offence of reckless wounding applying the various subjective and objective factors in synthesis, and a discount of 25%, I specify an indicative sentence of 3 years, imprisonment with a non‑parole period of 1 year and 6 months.

41. In respect of the damage to the motor vehicle and allowing a discount of 25% for the plea of guilty, the indicative sentence I select for that is imprisonment for 1 year and 9 months.

42. The aggregate sentence I propose is imprisonment for 3 years and 9 months with a non‑parole period of 1 year 9 months commencing on 7 April 2018. I will just take a moment to recalculate the dates when the periods of non‑parole and the overall sentence will conclude. If I am correct the sentence commences on 7 April 2018, the non‑parole period of 1 year 9 months will conclude on 6 January 2020, and the sentence of 3 years and 9 months will conclude on 6 January 2021.

43. All right now Mr Hurst you are convicted of each of these offences. I sentence you to an aggregate sentence of imprisonment of 3 years and 9 months commencing on 7 April 2018. I specify a non‑parole period of 1 year and 9 months, which shall expire on 6 January 2020 with a further period of 2 years thereafter during which you shall be eligible for parole that shall expire on 6 January 2022.

44. The parole authorities will determine whether you should have parole at the expiration of the non‑parole period that being a sentence of more than 3 years. You are eligible for parole and that requires an assessment by the parole authorities.

**********

Decision last updated: 15 October 2019