R v Kaine Hubbard

[2007] NSWDC 156

CITATION:	R v Kaine Hubbard [2007] NSWDC 156
HEARING DATE(S):	4 & 8 June 2007
JUDGMENT DATE:	8 June 2007
EX TEMPORE JUDGMENT DATE:	9 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	S 11 Crimes (Sentencing Procedure) Act 1999 bail - 12 months - conditional upon supervision, urine analysis - progress reports to Court and other conditions. (see para 34).
CATCHWORDS:	Criminal Law - Sentencing - AOABH in Company - recidivist offender - offending within 8 days of release from custody - 17 month delay in charging - strong rehabilitation during period after offending - strong family and community support - s11 Crimes (Sentencing Procedure) Act 1999 bail - conditional upon supervision - urine analysis - other conditions - progress reporting to Court
LEGISLATION CITED:	s 11Crime (Sentencing Procedure) Act 1999
PARTIES:	Regina Kaine Hubbard
FILE NUMBER(S):	07/31/0085
COUNSEL:	Accused: Ms Hollins
SOLICITORS:	Crown: Mr Fatches

JUDGMENT

1 HIS HONOUR: Kaine Hubbard is a twenty-four year old indigenous man. It is likely that he is an undiagnosed alcoholic. He certainly has a drinking problem. When released from gaol in August of 2005 he spent eight days drinking heavily. He had by this time served several, perhaps as many as four discrete stretches of prison for offences of violence, either against persons or property, that he had committed whilst affected by alcohol.

2 Against this background then his conduct eight days out of prison in August of 2005 is incomprehensible. Having spent these eight days drinking in company with a juvenile on 13 August 2005, he assaulted a fifteen year old boy. This assault was an act of savage violence against one victim, that victim aged only fifteen.

3 Perhaps it was the savagery of the assault, perhaps it was a realisation that his parole would certainly be revoked, perhaps it was a recognition that he was to be separated again from his partner and two girls, perhaps it was the realisation that his conduct put him in a revolving door that opened repeatedly only to the gaol cell. Whatever it was, he determined he would reform. He self addressed it would seem, his alcohol and drug abuse. He linked up with a personal support programme offered by one of the Commonwealth employment agencies and he tried to turn his life around. He was succeeding at least to some extent for seventeen months. Two days into the New Year this year police attended his premises. He was arrested for that assault in August of 2005. So ended one of the longest periods of stability in his adult life. Since his arrest he has been bail refused.

4 Today he is before the Court to be held accountable for his cowardly assault upon that fifteen year old boy. The Court’s task is to resolve a number of competing tensions as it strives to determine an appropriate sentencing outcome for this offender, committing this offence, in this community, against this particular young victim. Before any appropriate outcome can be determined, there are a number of issues that will need to be looked at. The facts of this offence and in particular the objective criminality will have to be looked at. The subjective matters relating to the offender and his particular circumstances will also need to be looked at. The question of parity of sentence with his co-offender will need to be determined and ultimately the appropriate sentencing disposition, which it seems to me must be one of imprisonment, will have to be looked at, particularly to see if that sentence can be suspended.

FACTS

5 For the purposes of the present exercise it is enough if I repeat what would appear to me to be agreed facts, or if not agreed at least facts that cannot be otherwise disputed.

6 At about 8.20pm on Saturday 13 August a young person, JB, was at home, made a call on his mobile phone to a school friend. During that call the young person identified himself as being in one of the streets in Tuncurry. As he was walking he noticed two males standing in the front yard of a house on the corner of Brent and Peel Streets. At this time the young person was in Peel Street. They were talking to someone on a front verandah. That someone was likely to be the offender’s partner. As his path took him closer to the two males, they came out onto the footpath and approached him.

7 This offender said to the young person, “Can I use your phone to ring my mum urgently?”. The young person said, “Can you wait for me to finish my conversation?”. No doubt in response to the interchange that was taking place between him and this offender, the young person stopped walking. This offender and his co-offender put their arms around the young person’s shoulder, there was nothing threatening about their behaviour. Indeed, he describes it as being in a friendly manner.

8 The young person moved the phone from his right ear and was holding it in front of his body. The co-offender snatched the phone from him and grabbed his wallet. The young person’s wallet however was attached to a chain and the co-offender did not succeed in obtaining it. This offender, while all that was happening, tightened his grip on the young person causing that fellow difficulty to resist the activity of the shorter man, the co-offender.

9 Not surprisingly, the young person then began to walk backwards towards the corner of Bent and Peel Streets, with the two males walking towards him. There does not appear to be any reason why it should be so, but the offender punched the young person, the fifteen year old, with his right hand striking the young person’s left eye. The co-offender began to punch the young person in the face. The young person was saying, “I don’t want to fight you, I’m only small compared to you”. He might also have added he was outnumbered. He started, or tried to block their punches and he ran back to the other side of Peel Street, where apparently a church is located. It must be that the two offenders followed him. This offender punched the young person a second time to the face. The young person fell, not as a consequence of the blow, but rather as a decision to protect himself and curled in a ball.

10 That did not end up in his protection at all, because each of the offenders then started kicking him, he says, to the face and he tried as best he could to protect his face. He was kicked some five times. One of the offenders, very likely to be this offender, said words to this effect, “Don’t bother my family again or we’ll come and get you”. The young person did not understand why that was said. This offender thinks it may have been him because he had reports from his partner who lived there, that she was being hassled by persons. It may be that in the condition he then was, this offender thought, incorrectly I would imagine, that the young person had been troubling his partner.

11 While he was on the ground the chain holding the wallet was ripped from his clothing, the wallet was thrown at him, there was no money in the wallet prior to it being taken.

12 Having disposed, if that is the right word, of the young person with the taking of the wallet and ascertaining there was no money in it, the men left. The young person ran towards the TAFE College and to his home. He called police. They noticed he had a bruised and swollen left eye, a swollen nose, a blood blister under his left eye and blood on a jumper. The young person gave descriptions of the two men and so far as this offender is concerned the description appears to be relatively accurate.

13 I have seen photographs which have been tendered that demonstrate clearly actual bodily harm occasioned to the victim and in particular serious bruising around his left eye, swelling below the eye in the area of the zygoma and bruising or at least the collection of blood within the eye itself, on what we would normally describe as the white of the eye, approaching the iris, substantial bruising.

14 The evidence of the offender, which I am prepared to accept, is that he had been drinking for a considerable period that day. As I say it seems to me he had been seriously abusing alcohol for the eight days he had been released. I am satisfied he was well intoxicated by alcohol at the time of this offence. I raised with him in his evidence whether he had ever turned his mind to that point in time of the nexus or the link between his alcohol abuse and his periods in custody. He claims he had not. It seems to me bizarre, but it would seem that as a consequence of his acts, he certainly turned his mind to it afterwards.

OBJECTIVE SERIOUSNESS

15 This offence is a serious assault upon the young person. Serious for a number of reasons, the method by which it was conducted, the circumstances in which it was conducted, that is that the victim was alone and vulnerable, the outnumbering of him and the apparent pointlessness of the violence at least so far as the plea that is before me is concerned, are all disturbing matters.

16 The method was one of punching him to the face and then kicking him to the face. One of the most frequent sources of injury that young males face is traumatic head injury. Flowing from that quite often is, traumatic brain injury. Those injuries percentage wise when they do occur, occur as a result of assaults such as the one I am dealing with. The potential for lifelong damage to a victim in an assault such as this, particularly with feet, is monumental. It is probable, although I have no evidence, that this young person would have psychological scars, or some sense of post traumatic stress, as a consequence of what has happened. In the normal course of events that stress usually resolves within a twelve month period. But the point I make is that there would have been lingering sequelae to this assault for this young man for some time. That outcome I suppose can only be described as better than some sort of permanent brain damage, which was clearly open on the cards. It is not very far from the eye to the brain and if the eye was bruised, there was every potential for the brain to be damaged.

17 The objective circumstances of the offence make it clear that a sentence of imprisonment is called for. This offender has spent now six months or so in custody. The issue for me is whether I ought to extend that custody or I ought to give him a chance to prove himself in the community.

18 Ironically, because it was contrary to his requirement of parole, he chose to absent himself from further reporting to the Probation and Parole Service. He managed to get himself into some sort of order, for a period it would seem of some seventeen months. He went to Newcastle either on the night of, or very shortly after this altercation. He stayed with friends in Newcastle for some twelve months and then he moved into a Department of Housing home in Raymond Terrace. He moved there with his partner and their two children.

19 It would seem that Raymond Terrace rather than Newcastle marks the start of some attempt to really reform. He signed up there for a personal support programme, the children began school, he and his partner addressed their drug and alcohol issues. Then, as he said, “I don’t see anybody”, and he began to change his life around. I understand what he means by that is that he has abandoned those people in his past with whom he would drink and with whom he would get into trouble. His domestic setup, that is his partnership has been ongoing now for three years. He has known his partner he says, fourteen, she says nine years. I think she is probably more likely to be accurate. He has support from his mother, and he has support from others in the community, including Sister McCabe who gave evidence.

20 I am satisfied he is sincerely contrite. I am satisfied he has now insight into the link between his alcohol consumption and his drug consumption and his past criminal behaviour.

21 I am also satisfied that significant changes have occurred. His letter to me was in these terms (it was in fact to the magistrate because he thought he was going to be dealt with in the Local Court) that he has committed no crimes since this offence, that he no longer consumes alcohol, only on special occasions; that he has been a good role model for his children and he has been a supporting partner to his wife; that he had made drastic changes to his life for the first time; that he signed up to a job network and joined a personal support programme through Centrelink. He signed on for an education in OHS course while he was in custody, although has not been able to get to it. He says he no longer associates with his old associates and he no longer lives in the area where the crime was committed.

22 He told the magistrate, which has come to me, that he has created a good stable home for his family. That evidence has been supported by his mother, by Sister McCabe, both in her evidence and in a reference, where she writes,

“While I can see that there has been some failure in this time, there has also been success. For about eighteen months removed from occasions of conflict, Kaine has led a quiet life supporting Kristy and her children. He has been responsible and dependable, interested in caring for the general appearance of their home, acquired gardening skills growing vegetables and taking some pride in his newly acquired ability”.

23 It was Sister Catherine’s opinion that he had a potential to contribute to society in a worthwhile way. The Smiths wrote (they are from Fairfield) that he had attended good schools and had a good education. They said for the past eighteen months he has been trying hard with his partner and the two daughters to establish a good and stable home as a family unit for the four of them.

“I do believe they have been successful in doing so. They moved away from Forster by themselves and wanted to make a new start. They have enrolled the eldest girl at a local Catholic school to start kindergarten”.

24 My understanding, interpolating here, is that the younger one is at pre-school. Mrs Smith continues,

“Kaine spent a lot of time at home and his upkeep of the yard and garden shows. I was very proud to see the effort put into his home to make it a stable and happy home for the four of them. Kaine also established himself a very good vegetable garden which he has spent a lot of time looking after”.

25 The offender tells me that he would like to get into landscape gardening and it would seem that he may have begun to develop some skills appropriate for that.

26 His letter asked that I consider a suspended sentence or periodic detention. A suspended sentence would be appropriate outcome if he were able to rehabilitate. My concerns are that he has already shown an inclination not to co-operate with Probation and Parole, particularly around the time of this offending, that he may repeat the pattern of his past releases and look to alcohol. His mother was concerned that perhaps on one of those occasions he had been in prison, not this occasion but the last one, something may have happened. Prison is for many young men a very scary place. Custodial officers cannot keep their eye on all prisoners all the time. There are a number of standover men who operate in prison and there are a number of sexual predators who operate in prison and from time to time things happen.

27 It may be that something happened to this offender during his earlier period in custody, but if that is going to be his excuse for continuing his behaviour, he will continue to expose himself to such a threat. If that is his excuse for getting his life together so that he does not have to go back there, then he would be using that experience in a sensible way. There are many people who have had bad experiences in life who have used it to inspire them. There are also many who have sat there feeling sorry for themselves. It is a matter for this young man, if there is such an experience, how he treats himself in regard to it.

28 Any experience that is bad ought to be the subject of counselling. The Probation and Parole Service, the personal support programme, the links with the Catholic Church are all avenues, which can lead to counselling. Counselling would help if there be such an occasion, for him to come to grips with it. Sometimes there are occasions when people self medicate, using alcohol and drugs in un-prescribed ways. Again, those causes ought to be looked at through counselling.

29 What I propose to do, because I am uncertain as to what the future holds for this young man, is to give him an opportunity to demonstrate that he can rehabilitate. That is one of the sentencing options open to this Court. It is called a section 11 [Crimes (Sentencing Procedure) Act 1999] bail. The purpose of the bail is to give the opportunity to demonstrate to the Court that rehabilitation can take place. If it cannot, then I know the answer to my question as to whether I need to suspend the sentence or to make it a fulltime custodial sentence. If he can and is successful, then I also know the answer to my question, because I can then suspend it with some confidence.

30 Giving a suspended sentence is not always the best option, even from a prisoner’s point of view because it sees the prisoner out and about. Then in the event of re-offending, the Court’s options are very limited, the sentence must be activated and the cruelness of it, if that be the right word, is that he has to go back into custody.

31 It becomes important then when I consider whether this is an appropriate course to take. I am fortified by the evidence of the efforts in the past. It is only because of the past efforts and the support I have been told about that have determined me on the course I am going to take.

32 He will need to be supervised by Probation and Parole. Probation and Parole will see among the conditions that I set that any breach of his conditions will require them to notify me within forty-eight hours of a breach. Failure to report would be a breach. Failure to do the other options that I will have on this bail, such as drink or not enrol in another personal support programme or refuse work when it comes along, will be reported to me as breaches of this bail. They amount to breaches because they are indicative of a failure to rehabilitate.

33 Remember always the purpose of the bail is to assess the capacity to rehabilitate. If when I review this case at the end of October, I do not see signs of progress being made, if all that is happening is you are sitting on the front verandah of your house, sipping alcohol, you will go back into custody.

34 Pursuant to section 11 of the Crime (Sentencing Procedure) Act 1999, bail is granted for the purpose of the offender demonstrating that he can rehabilitate. That bail is conditioned as follows.

• That he will accept supervision of Probation and Parole.
• That he will report to the Probation and Parole office at Taree
• He will accept full supervision by Probation and Parole and obey all reasonable directions of his case manager with Probation and Prole.
• He will accept all treatment, programmes and counselling Probation and Parole direct him to be engaged in. Specifically, alcohol, drug abuse and anger management.
• By Friday the fifteenth, he will have contacted a personal support programme and enrolled in it.
• During this adjournment, he is not to consume on any account whatsoever alcohol or un-prescribed drugs.
• He is to do all he can to obtain and maintain employment in an area that he feels he can commit to long term.
• He is to submit to random urine analysis four times monthly during the adjournment period. Any failure to submit when so requested or any dirty urine is deemed a breach of this bond, the bail. If required so to do, he is to submit to a random alcohol test also. I need not tell you that any alcohol is a breach of the bail.

35 The matter is adjourned to 2 November 2007.

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