R v Mark Andrew Hughes

[2009] NSWDC 404

CITATION:	R v Mark Andrew HUGHES [2009] NSWDC 404
JUDGMENT DATE:	3 November 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I impose an overall sentence of 8 years and 5 months with a non-parole period of 5 years and 5 months.
CATCHWORDS:	CRIMINAL LAW - sentence - aggravated break enter and steal, break enter and steal, destroy property, - Forms 1 taken into account - serious drug addiction - plea of guilty at earliest opportunity - offences committed while on conditional liberty - evidence of genuine remorse
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 32, s 21A, s 54B Crimes Act 1900 s 112(1)(a), s 195(1)(a) Criminal Procedure Act 1986 s 166
CASES CITED:	Scott [1999] NSWCCA 434
PARTIES:	Regina Mark Andrew Hughes
FILE NUMBER(S):	1130/09
SOLICITORS:	Mr Kiru (NSW Office of the Director of Public Prosecutions) Mr Sandilands (Legal Aid Commission)

JUDGMENT

1. Mark Andrew Hughes was seriously addicted to drugs. He has been a drug addict for all his life. For most of that time he was able to hold down a job and remain out of trouble with the law. However in 2008 his addiction to the drug known as “ice” turned his life into a very seriously wrong direction.

2. First, he was not able to maintain a job which he had held for some thirteen or fourteen years. Then his daily habit, he found, was costing him over $400.

3. In order to provide himself with the funds to support that daily habit he embarked on a rampage of crime from about the middle of September to November 2008. He broke into businesses, warehouses, workshops and private homes. He ransacked some of those places. He destroyed property in some of those places. He stole thousands of dollars worth of belongings from most of those places. In one instance, the most serious, he bailed up a householder who, unfortunately, came home when he was in the process of ransacking the house.

4. The Court of Criminal Appeal in this State has made its views clear about the approach which judges have to take to sentencing offenders such as Mr Hughes who have committed these crimes. In Maher [2004] NSWCCA 177 at [44] the Court said that judges need to “send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely”. In Scott [1999] NSWCCA 434 the court said at [17] that the incidence of break, enter and steal throughout New South Wales was a “cause for grave disquiet”. It added that “the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar.” It further observed that it is “a notorious fact that householders face huge premiums, as well as the vast expense of making their homes secure”. The Court of Criminal Appeal in that case said that the “community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted. Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment.”

5. Mr Hughes’ rampage of break enter and steal offences has resulted in him facing six charges, most of them for that offence. In addition, in sentencing him on two of those charges I am asked to take into account other offences which are on a list of additional charges under s 32 of the Crimes (Sentencing Procedure) Act 1999.

6. The six charges in the order in which he committed them are break and enter and steal committed between 1 and 4 October 2008. That is an offence against the law of this State contained in s 112(1)(a) of the Crimes Act 1900 and carries a maximum of fourteen years. There was a further offence of breaking, entering and stealing committed between 5 and 8 October 2008. In sentencing him for that offence I take into account one offence of stealing a car which is on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act. Between 25 and 27 October 2008 he committed the third offence, which was a further break enter and steal; and between 2 and 3 November 2008 he committed the fourth offence, which was also a break enter and steal. On the same occasion he committed the fifth offence of destroying property. The offence of damaging property is a crime under s 195(1)(a) of the Crimes Act and carries a maximum of five years’ imprisonment.

7. The most serious offence is the most recent, committed on 11 November 2008. That is an offence of aggravated break and enter and steal. When sentencing him for that offence I must take into account no fewer than thirteen offences on a Form 1. The maximum for the aggravated break, enter and steal is twenty years’ imprisonment. In addition Parliament regards that offence as so serious that it has fixed a standard non-parole period of five years to that crime.

8. It is important when judges sentence offenders for the judge to record briefly the circumstances of each offence so that there is a public understanding of just how serious each offence was.

9 Between 1 and 4 October 2008 Mr Hughes broke into a RailCorp substation at Emu Plains and helped himself to copper cable worth some $2000.

10. Between 5 and 8 October 2008 Mr Hughes jemmied open the screen door in a Castle Hill home. He set about destroying various alarms in the home and ransacked the house. He stole a television, an amplifier and speakers and a remote control, Playstations, a set top box, five compact disc players and their remotes, personal papers, an acoustic guitar, a laptop computer, costume jewellery, an iPod, a Walkman and a safe. He broke into a car that was at the house. When police arrived they found clothing and personal items all over the floor and items of furniture out of place. The alarm had been smashed with a hammer, which was nearby. I take into account, in sentencing him for that offence, an offence of stealing a car which is set out, as I said, in a Form 1 which has been signed on behalf of the prosecutor and signed by Mr Hughes and I now sign that document as well. The car which he stole was a very expensive car, valued at about $140,000 when it was bought and insured for some $83,000. He stole about $15,000 worth of goods and it can be readily appreciated from the list of items which he stole what an impact it must have had on the owner or occupants of the house to find their personal belongings and personal records lost when they got home.

11. The third matter I am sentencing him for occurred between 25 and 27 October 2008, when he used a crowbar to get into premises occupied by Safe Access Scaffolding at St Marys. He forced a locked door and stole a laptop computer and mobile phones, as well as lots of tools. The value of the property he stole was some $20,000. Once again, one can imagine the inconvenience and distress which the theft of computers and mobile phones must have had on the managers of that business.

12. Between 2 and 3 November 2008 he forced entry into the office of Jay & Lel Excavations at Glendenning. He cut a hole in one of the walls of the building. He ransacked the office. He caused damage to the walls within a demountable office, as well as damaging the office furniture and the office alarm system, the doors and a truck and the locks of a float. He damaged lots of other things and the damage he managed to cause in that ransacking exercise was over $14,500. Not satisfied with that, he took it upon himself to steal things such as cash and a camera. The items he stole amounted to a value of over $6000. The business submitted what was called a “Vandalism Report”, which listed the damage to all of the items and fittings at its premises. It makes very sober reading. That activity, as I said, resulted in a charge of destroying and damaging property as well as the break, enter and steal.

13. The final offence I am sentencing him for is, as I have said, the most serious and occurred on 11 November 2008, when he took it upon himself to break into a private home at Croydon. The home was occupied by a clergyman and his wife. The clergyman was out on his morning walk and his wife was out shopping. When the clergyman got home he let himself in and saw glass which had been shattered in the lounge room. He was confronted by a man standing in the middle of the lounge. The man was holding in one of his hands what the witness described as looking like some “wire cutters or snips”. The intruder rushed at the clergyman, waving what he had in his hand. The clergyman said that the man “got me in the hallway before entering the lounge room. I remember him holding the snippers in his left hand, because as he came towards me I grabbed his left arm because he was holding the snippers in that hand. I was trying to keep the snippers away from me. I was afraid he was going to hit me with the snippers. We ended up in a struggle. I had hold of his right arm and he was pushing against me.”

14. The intruder was yelling at him and making loud noises to scare him. Understandably the clergyman was taken by surprise and must have been terrified. In fact the facts, which are agreed between the parties, record that the clergyman “was convinced that he was to be the subject of a homicide”. The clergyman went on to say that the man “overpowered me and we struggled into the front bedroom. He forced me into the front bedroom that is also known as the computer room. This room is at the front of the house to my right as I walked into the house. The guy forced me into this room and said to me, ‘Lay on the bed and I won’t hit you.’ I did what he asked. He still had his pair of snippers in his hand.”

15. The man was concerned that his wife might turn up at any time and so he alerted the intruder in the hope that the intruder would leave. The intruder tied up the clergyman’s hands and put a gag in his mouth. He rummaged around in the house a little further and then left the home.

16. Needless to say, this must have been an extraordinarily terrifying experience for the clergyman, whose home was used to commit this crime by Mr Hughes. I should have added that on his way out he helped himself to some cameras and opals and other property worth over $3000, as well as ransacking the home.

17. I am asked by the parties to take into account in sentencing Mr Hughes for that offence thirteen offences to which he has pleaded guilty which are listed on a Form 1 which is signed on behalf of the parties and by Mr Hughes and now by me. They are mostly break and enter and steal offences with some other offences concerning property and cars.

18. Mr Sandilands, who appeared for Mr Hughes, tendered two exhibits and helpfully called his client to give evidence. One of the exhibits was a Probation and Parole Service pre-sentence report, which had been prepared earlier this year for some Local Court proceedings but which contained very useful information about Mr Hughes’ personal circumstances.

19. Mr Hughes’ personal background included being a child in a family where the parents separated when he was very young. His mother formed a relationship with another man, who became Mr Hughes’ stepfather, but that relationship involved alcohol and violence, and resulted as well in eventual separation and divorce. Mr Hughes said his own mother had a problem with abusing prescription medication, as well as some mental health issues.

20. Mr Hughes himself married in 1991. That marriage produced three children, one of whom, a little boy, died tragically at the age of seven months. The two surviving children are girls who are now teenagers and with whom there is little or no contact by Mr Hughes or on their part as well. That marriage was dissolved and he remarried in 1996. That marriage produced two sons, who are now aged eight and ten, with whom Mr Hughes communicates by phone from custody every Sunday. That marriage, too, resulted in a divorce in 2005.

21. Mr Hughes left school in the middle of his secondary education and has had various unskilled jobs over the years. The longest employment was some thirteen or fourteen years when he was working in a recycling factory.

22. He has always had a drug problem. He commenced with cannabis aged twelve, and tried heroin at the age of fifteen. The probation officer reported that he has undertaken some lengthy periods of residential treatment for what became an addiction, but has to date been “unable to successfully manage times of personal crises without resorting to substance abuse in order to escape the reality of his situation”. He went on in more recent years to use drugs such as speed and ice and told the probation officer that, regarding the most recent offences, he was using such large volumes of those drugs that he needed to remain drug-affected so that he would not be affected by the consequences of “coming down”.

23. He has minimal contact with his family. I should at this stage make a note of the evidence which Mr Hughes gave when he was called by Mr Sandilands. He acknowledged his personal history and the fact that the accounts he gave to the probation and parole officer and to a psychologist, to whom I will refer shortly, were true and correct. I accept those histories. His family had in effect cut him off although, as I said, he maintained contact with his two younger children, the boys aged eight and ten. He acknowledged that he had hit rock bottom. He acknowledged the shame and remorse he felt for the offences which the probation officer noted as well, and said that he had written to the clergyman apologising for his behaviour. He realises in prison, being aged forty-seven, that he is amongst the older inmates by many years.

24. When he is released from prison he hopes to be offered accommodation by a sister-in-law, who has indicated that she would be willing to put him up, and would be keen to undertake counselling in a program which would be offered by the psychologist. He acknowledged that he had stopped counselling before committing these crimes, or perhaps during it, because of the impact of drugs. He acknowledged also that the relationship with his second wife was a very important one to him but that his drug addiction had effectively killed that relationship.

25. As I said, Mr Sandilands tendered a report by W John Taylor, a well-known clinical forensic psychologist. Mr Taylor’s report picked up a number of the items which the probation and parole officer had reported on so far as his personal history was concerned. He noted Mr Hughes’ saying, concerning his most recent drug addiction, that he was “so far out of control on drugs I couldn’t stop. Ice and speed. I didn’t have the strength to stop myself.” He noted that he felt ashamed at his behaviour. He noted the lack of significant family support.

26. He thought Mr Hughes had a conduct disorder in his early teenage years and was apparently suffering from depression at the moment and clearly had a drug abuse disorder. He thought Mr Hughes had a moderate risk of general recidivism and a low to moderate risk of violence recidivism. This could improve if he persevered with drug rehabilitation and is able to successfully resolve his drug abuse. (I should add at this stage he is on a methadone program in custody at present.) He said Mr Hughes was highly motivated to overcome his drug problem. There needs to be taken into account in assessing his prospects of recidivism the lack of social and emotional support. Mr Taylor referred to a program conducted by himself called the “Ex-Inmate Program”, which would be available to Mr Hughes on release from custody and which would assist him in dealing with his drug addiction.

27. Mr Hughes has a prior criminal record, but it is not a significant one for a forty-seven year old man who has had a drug problem for most of his life. Apart from a charge involving some sexual relations as a juvenile with another juvenile and a break and enter when he was a child, he has convictions for false pretences and theft and drug use which were recorded when he was aged twenty-two. Then his record is clear until late last year, when there are convictions for driving offences, goods in custody and larceny. He has obviously, as I said in my opening remarks, managed to lead a law-abiding life despite that life being controlled by his drug addiction to a significant degree.

28. To his credit, Mr Hughes pleaded guilty to all of the charges which he faced. To some extent that was inevitable, because he left DNA traces in almost all of the crime scenes that he had attended. Whilst that may be taken into account so far as his remorse is concerned, the impact of his pleading guilty at what Mr Kiru, who appears for the Director of Public Prosecutions, acknowledges is the earliest opportunity, has a significant impact on the administration of justice in this State. For that reason the sentences which I will shortly impose will be discounted, each of them by twenty-five per cent, to reflect the impact which that plea has had on the process of administering criminal justice in this State.

29. I was assisted by both Mr Sandilands and Mr Kiru in their submissions. Mr Sandilands argued that the aggravated break, enter and steal was just below the middle of the range of objective seriousness. He pointed out that the crime is commonly described as a home invasion, but this was not a case where the intruder burst into the home which was already occupied by the owner. He acknowledged the Form 1 offences and their impact. He referred to the guideline judgment issued by the Court of Criminal Appeal in Ponfield (1999) 48 NSWLR 327 and submitted that none of the offences was professional and planned, but opportunistic. I accept that submission.

30. He acknowledged that his client had obviously committed a multiplicity of offences. He also acknowledged that some of the offences were committed whilst his client was on conditional liberty. Those offences were the offences committed 25 to 27 October 2008: when he broke into Safe Access Scaffolding, he was on bail; the offences committed between 2 and 3 November 2008 at Jay & Lel Excavations in Glendenning when he was on bail; and the offence committed at Croydon on 11 November 2008 when he bailed up the clergyman, when once again he was on bail.

31. He correctly observed that his client did not have a significant record. He drew to my attention his client’s genuine remorse and the significance of the early plea of guilty, both of which I take into account.

32. He submitted that I may be able to find that his client had good prospects of rehabilitation, although he acknowledged that they must be guarded, given the report by the psychologist and his client’s personal history and the lack of family support. I am not convinced on the balance of probabilities that his client’s prospects are good. I hope for his client’s sake that his client takes the course which Mr Sandilands points out a man in his late forties at the crossroads of his life should take, but his history and lack of family support do not enable me to find on the balance that his prospects are so good that I can take them into account positively. I think that would be unrealistic.

33. He argued that there are special circumstances which would warrant me adjusting the ratio between the non-parole period and the additional term of the sentence. It is his client’s first time in custody and there must be a degree of accumulation in the sentences. Mr Kiru acknowledged the force of that submission and I will adjust that ratio.

34. Mr Kiru highlighted the significance of the thirteen offences on the Form 1 attached to the aggravated break, enter and steal. He pointed out that most of them are themselves break, enter and steal offences and argued that the aggravated break, enter and steal must be close to the middle of the range of objective seriousness. I took that submission to mean that it was within the range and in the middle of that range.

35. I have been helpfully been provided with statistics issued by the JIRS service provided by the New South Wales Judicial Commission. I have taken into account the seriousness of the crimes committed by Mr Hughes and the submissions made by both parties and I have determined that the following sentences should be imposed.

36. For offence number 2, 1 to 4 October 2008, break, enter and steal from RailCorp, I would regard an appropriate sentence as a fixed term of twelve months, but I will discount that by twenty-five per cent and impose a fixed term of nine months to commence on 1 December 2008 and expire on 31 August 2009.

37. For the offence numbered 6 of breaking and entering and stealing from the Castle Hill home between 5 and 8 October 2008, taking into account the matter on the Form 1 and the other aspects of that offence which render it more serious such as vandalism, I regard an appropriate sentence as eighteen months, however because Mr Hughes pleaded guilty I propose to discount that sentence. I will discount it for convenience, erring in his favour, by more than twenty-five per cent to twelve months’ imprisonment. That twelve months will commence on 1 March 2009 and expire on 21 February 2010. There will be, it is noted, some accumulation between the first and the second sentences. There will in fact be a cumulation spread over a number of these sentences, because each of them represented a separate crime so far as the victims were concerned.

38. Turning to the offence numbered 3 in exhibit A of breaking and entering and stealing from Safe Access Scaffolding at St Marys, that was committed whilst he was on bail and I regard an appropriate sentence as twelve months, but because of his plea of guilty I will discount that by twenty-five per cent to a sentence of nine months’ imprisonment. That will commence on 1 September 2009 and will expire on 31 May 2010.

39. The offence numbered 4 in exhibit A is breaking and entering and stealing from Jay & Lel Excavations at Glendenning. That was committed on bail. I regard an appropriate sentence as one of eighteen months’ imprisonment, but erring in Mr Hughes’ favour I discount that by more than twenty-five per cent to twelve months imprisonment because of his plea of guilty. That twelve months will commence on 1 March 2010 and will expire on 28 February 2011.

40. For the offence numbered 5 in exhibit A of intentionally destroying or damaging property, also committed at Glendenning, I regard an appropriate sentence as six months, but because of his plea of guilty I will impose a sentence of four months’ imprisonment. That will commence on 1 January 2011 and expire on 30 April 2011.

41. Turning to the offence numbered 1 in exhibit A of aggravated break, enter and commit serious indictable offence, that too was committed whilst Mr Hughes was on bail. I need first, however, to assess where it lies in the range of objective seriousness for offences of this kind. For that reason I do not take into account the fact that he was on bail. I regard this as a serious instance of that crime. The nature of the aggravation itself which was pleaded was significant, namely that the victim was deprived of his liberty, although I acknowledge that was for a relatively short time. But in addition the victim was assaulted in the sense of being approached whilst Mr Hughes was armed with an offensive weapon or instrument, namely the pliers, and there was a degree of manhandling involved in the struggle, although no actual bodily harm.

42. I regard that offence as falling within the middle of the range of objective seriousness. That would require me, according to s 54B of the Crimes (Sentencing Procedure) Act to set the standard non-parole period as five years as the non-parole period for the offence, but I may set a shorter non-parole period if there are reasons which are contained within s 21A of that Act for setting a lesser period.

43. Mr Sandilands has drawn my attention to the fact that his client pleaded guilty to this offence, and I regard that as an appropriate reason for not fixing the standard non-parole period in this case. Stepping away from consideration of the standard non-parole period, I regard this as a serious crime. It was committed whilst Mr Hughes was on bail and apart from that, in determining the appropriate sentence I need to take into account the fact that he has pleaded guilty to thirteen offences, many of a similar kind, on the Form 1.

44. I would regard an appropriate overall sentence for this crime as eight years, however he has pleaded guilty to this charge so I propose to reduce that overall sentence to six years’ imprisonment. I regard the accumulation of the various sentences and the fact that it will be Mr Hughes’ first time in prison as being special circumstances to warrant an adjustment in the ratio between the non-parole period and the parole period. Accordingly I fix a non-parole period of three years, to commence on 1 May 2011 and to expire on 30 April 2014. The balance of the term will be three years, to commence on 1 May 2014 and to expire on 30 April 2017.

45. By my calculations the overall sentence which I am imposing on Mr Hughes is eight years and five months, commencing on 1 December 2008 and expiring on 30 April 2017. The non-parole period component of that overall sentence is five years and five months, commencing on 1 December 2008 and expiring on 30 April 2014.

HIS HONOUR: Now in a moment I will discharge my statutory obligation to explain the sentence to Mr Hughes, but first are there any factual errors which I have made?

KIRU: I’m not sure whether your Honour has convicted the prisoner, because--

46. No, thank you. In addition I convict Mr Hughes of each of the six offences which I have earlier described in my remarks on sentence.
Any factual errors?

KIRU: No, your Honour.
SANDILANDS: No, your Honour.
HIS HONOUR: Now the mathematics?
KIRU: No, your Honour.
HIS HONOUR: I think it adds up, and the ratio should be around the mid sixties. It’s not seventy-five per cent, it’s more like sixty-five, sixty-six per cent. I think that’s right, okay. I don’t think the compulsory drug treatment centre is relevant.

SANDILANDS: It’s not, your Honour.

KIRU: No, your honour.

HIS HONOUR: And finally, Mr Kiru, what--

KIRU: In relation to the two 166 certificates, your Honour, that’s item 12.

HIS HONOUR: There are two of them.

KIRU: Yes, your Honour.

HIS HONOUR: What do I do?

KIRU: The first 166 certificate, your Honour, is item 13 in the first Form 1, so the file may be noted that it was placed on a Form 1, your Honour.

HIS HONOUR: So what do I do there? I note--

SANDILANDS: Taken into account on Form 1.

47. I note that the offence on the certificate issued under s 166 of the Criminal Procedure Act 1986 and dated 8 July 2009 is an offence which I have already taken into account on the Form 1, which contained the thirteen offences.
KIRU: The second matter on the 166 certificate was taken - only one matter on the second Form 1, your Honour.

48. I note in respect of the certificate under s 166 of the Criminal Procedure Act 1986 dated 16 September 2009 that that offence is the same offence as the offence I took into account in sentencing Mr Hughes and which was contained on the Form 1, itself containing one offence of taking and driving a conveyance without consent.

49. Mr Hughes, you have heard the sentences which I have imposed. They are mostly fixed sentences. The last one has the parole period at the end. The last one is the most serious for the reasons which I said. Overall your sentence commences - I have backdated it by five days to 1 December to take into account about five days you spent in custody in October, so it is backdated by that period, and the overall sentence I have imposed is just short of eight and a half years; it is eight years and five months. That overall sentence will expire on 30 April 2017.

50. You will be in custody overall for five years and five months. That period commences on 1 December 08 and the first date on which you are eligible for consideration for parole is this date, 30 April 2014 - 30 April 2014. On that date you are eligible for parole. The Parole Authority considers your parole, as to whether they grant it or not. I do not order it. Then you are on parole for the balance of three years during which obviously you must behave yourself or you could lose your parole. Do you understand that?

PRISONER: Yes sir.
HIS HONOUR: Good luck.

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