R v Shayne Hubbard

[2011] NSWDC 166

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Shayne HUBBARD [2011] NSWDC 166
Decision date:	31 March 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of assault occasioning actual bodily harm in company - 6 months imprisonment. For the offence of aggravated break and enter and inflict actual bodily harm - non-parole period of 7 months and 25 days and balance of the term of 2 years 3 months and 6 days.
Catchwords:	CRIMINAL LAW - sentence - aggravated break and enter and inflict actual bodily harm - assault occasioning actual bodily harm in company - plea of guilty at earliest opportunity - victim impact statements - offence of break and enter lies below the middle of the range of objective seriousness - offence spontaneous and unpremeditated - piece of timber used as weapon - extensive criminal history - pre-sentence report - history of drug addiction - psychological report - delay between offences and sentencing proceedings - assisted police - impact of custodial sentence on children - full-time custody only appropriate sentence - special circumstances
Legislation Cited:	Crimes Act 1900 s 59(2), s 112(2)
Category:	Sentence
Parties:	Regina Shayne Hubbard
Representation:	Mr PJ Pearsall for Mr Hubbard Ms L Cocca for the Director of Public Prosecutions
File Number(s):	2010/61960

Judgment

1. I am sentencing Shayne Hubbard who after turning his life around almost twenty years ago has more recently committed two very serious offences. Nowadays he is a single father of young boys.  The more serious offence which he committed has a maximum of twenty years imprisonment with a standard non-‘parole period of five years.  It is important for a judge in sentencing a person to set out what happened which brought about the charges and to make some assessment of how serious the crime was.

2. Gunter Kaminski was a seventy-‘two year old man who lived in a caravan park at Sanctuary Point with his wife.  He was having dinner just over a year ago on the evening of 8 February 2010 when two men, according to the police facts in exhibit A, ”opened the shut security door by forcefully removing it from the running track and entered the annexe area of the caravan".  What happened is that both the men - one of whom was Mr Hubbard who is now aged forty-‘six, the other of whom was a younger man - started to assault the seventy-‘two year old Mr Kaminski.  The police facts record that it was Mr Hubbard who ”commenced to throw punches towards Mr Kaminski's head. Mr Kaminski attempted to use his arms and hands to cover up his head from the punches being thrown however the unknown male offender, that is Mr Hubbard's companion, used a piece of timber to strike his arms and hands and preventing him from doing so". 

3. The only explanation was provided by one of the men who told Mr Kaminski in the course of bashing him up: ”Nobody touches our kids. You chased our kids with iron bars".  Despite Mr Kaminski denying this, Mr Hubbard continued to throw punches towards his face.  Despite falling to the ground the other man continued to hit Mr Kaminski about the hands and the arms with a  broom handle that he was wielding.  Despite Mr Kaminski being on the ground and being assaulted in this way by the other man, Mr Hubbard, according to the police facts, ”then king hit him and when Mr Kaminski could no longer protect his face Hubbard punched him to the left side of the face, causing pain".  The two men then left the annexe.  When Mr Kaminski asked why he had been assaulted he was again told, ”You chased our kids". 

4. This event had been preceded by one of Mr Hubbard's boys, who was cycling with a friend, making a shortcut through the caravan park and reporting that they had been chased away by someone in the caravan park and that somebody might have been wielding a stick. 

5. Having dealt with Mr Kaminski in the shameful and violent way that they had done, the two men went and rejoined their boys.  Another man at that time had come out of his caravan and the boys called out, ”That's him, that's him".  The other man was a Mr Curthill.  Mr Hubbard's co-offender, who has been identified as a man named Max, then approached Mr Curthill still holding his broom handle, and aggressively said, ”Is it you that was chasing my kids with an iron pipe or pole?". 

6. Mr Curthill denied that an iron bar had been used to which Max replied, ”My kids are liars are they".  Max then started to hit Mr Curthill with the broom handle over the arms and hands which Mr Curthill was using to protect his face.  Mr Curthill fell down.  At that stage when Mr Curthill was on the ground Mr Hubbard joined in and commenced to kick and punch Mr Curthill to the body and to the head.  Max joined in using his broom handle.  Mr Curthill managed to get away and got to his feet and ran but he was chased by both men.  They caught up with him.  Mr Curthill used the broom handle in a stabbing motion.  Despite Mr Curthill trying to grab the broom handle he was punched by Mr Hubbard.  

7. When this second attack had stopped both the men walked over to where the boys were standing.  I am satisfied beyond reasonable doubt that the boys witnessed the second assault but I am not satisfied beyond reasonable doubt that the boys witnessed the attack on Mr Kaminski. 

8. They all started to leave the caravan park and then an unusual thing happened.  Mr Hubbard approached Mr Kaminski and apologised to him.  He held out his hand to shake it.  Not surprisingly Mr Kaminski declined the offer.  Max said, ”Give him more. He deserves it!".  Both men then left with their boys. 

9. A couple of weeks later, on 25 February 2010, Mr Hubbard went to the Nowra Police Station and agreed to have his photograph taken.  A few weeks after that Mr Curthill identified Mr Hubbard as one of the offenders and once again, two days after that on 5 March 2010, Mr Hubbard went back to the police station and was charged. 

10. The offences he was charged with were two. The first was the more serious attack on Mr Kaminski; he was charged with an offence called aggravated break and enter and inflict actual bodily harm. That is a crime where someone breaks into somebody else's home and commits a serious offence. It is a crime against s 112(2) of the Crimes Act 1900. It is that offence to which Parliament has fixed a maximum of twenty years imprisonment and a standard non-‘parole period of five years.

11. The attack against Mr Curthill resulted in Mr Hubbard being charged with assault occasioning actual bodily harm in company. That is a crime created by s 59(2) of the Crimes Act and carries a maximum of seven years imprisonment but no standard non-‘parole period. 

12. Returning to the fate of the victims, Mr Kaminski went to the Shoalhaven Hospital in the early hours of the following morning and was examined there.  He was found to have light bruising to his right temple and cheek and a small laceration or graze to his lower lip.  The doctor expressed the opinion that Mr Kaminski ”suffered minor facial bruising".  But the doctor could not comment on the psychological impact of the assault. 

13. Both Mr Kaminski and Mr Curthill have provided victim impact statements.  Mr Kaminski's was dated 18 August 2010.  He said that he was still in shock from the result of the attack.  At one stage he was unable to open his mouth due to the pain and swelling.  He said he was mentally affected by the assault.  None of that surprises me. 

14. Mr Curthill said that he received lumps on the head and deep muscle bruising to the neck and shoulders and back and suffered acute distress, anxiety and an aggravated depressive condition.  He had mild concussion, he said, lasting several days.  He suffered from personal safety concerns, understandably.  A Dr Fattore provided a report dated 24 July 2010 in which the doctor said that Mr Curthill had an exacerbation of his mixed anxiety and chronic depression as a result of the assault.  He also had meralgia paraesthetica affecting his right thigh following the assault. 

15. As can be seen from my description of the offences, both men - and relevantly for me Mr Hubbard - were involved in a shameful and cowardly attack on two other men.  One of the men was aged in his seventies and one of the offenders, not Mr Hubbard, used a weapon, namely a stick, on both occasions. 

16. It is necessary for a judge, because the more serious crime of aggravated break and enter inflicting assault occasioning actual bodily harm carries a standard non-‘parole period, to make some assessment of where this offence lies in a range of offences by reference to just how bad - or as the law says objectively serious - this particular crime is, compared to others.  The standard non-‘parole period does not apply in this case because Mr Hubbard entered a plea of guilty.  Nevertheless as Mr Pearsall of counsel who appears for him correctly points out, the Court of Criminal Appeal has made it clear that the standard non-‘parole period remains as a guide in sentencing offences which carry such standard non-‘parole period. 

17. In this case Mr Pearsall submitted that the offence lay below the middle of the range of objective seriousness and Ms Cocca, who appears for the Director of Public Prosecutions, agrees with that submission.  I accept that the offence lies below the middle of the range of objective seriousness.  I accept that because of the nature of the injuries as one primary reason.  The injuries were serious but they were of a kind consistent with the kind of bashing which both victims received. 

18. An assault occasioning actual bodily harm may result in far more serious injuries than luckily both victims sustained in this case.  In addition the crime created by Parliament of break and enter and commit serious indictable offence can be far more serious than this one.  For example a person could break into somebody's home at night and rape the occupant or intentionally wound them.  Those sorts of crimes must be accommodated as well by a maximum penalty of twenty years.  When one views this particular offence I am satisfied that it was spontaneous and unpremeditated so far as Mr Hubbard is concerned, probably also so far as his co-‘offender was concerned as well.  Indeed I positively find that it was an unplanned offence. 

19. The injuries, Mr Pearsall argued and I accept, were as one would expect serious but luckily as I have already said not too serious for the victims. 

20. However on the other hand the offence was aggravated by the use of a weapon, by the co-‘offender and by the age of Mr Kaminski.  I would expect that the offence lies within the lower range of objective seriousness somewhere between the lower of the middle range and towards the top of the lower range. 

21. It is important for a judge in sentencing a person not only to explain the circumstances of what happened to bring about the crime but to explain something about the offender and his or her background.  In this case there are a number of helpful sources.  One of them is a report from a Probation and Parole officer at the Nowra district office of the Probation and Parole Service dated 6 December 2010.  It refers to Mr Hubbard's custodial history, which it might be appropriate for me to set out before returning to the pre-‘sentence report. 

22. Mr Hubbard has offences dating back to 1980 for stealing, including cars, and break and enter and steal.  He has also offences of receiving and other sentences of dishonesty as well as offences relating to drugs.  He has an offence of stealing from the person and in 1989 he was sentenced for an armed robbery where he received from his Honour Judge Ward QC a sentence carrying a minimum term of four years for the armed robbery as well as larcenies and steal from a person and assault and rob.  That put Mr Hubbard into gaol until the early 1990s.  After he came out of gaol there is only one item on his New South Wales criminal record - a drink driving offence in 2009, although he has a period of offending in 2000 in Queensland where he was dealt with by the Courts for various drug offences.

23. Returning to the pre-‘sentence report.  The author, Ian Cordina, reported that Mr Hubbard was very highly regarded when he was in custody in the late eighties and early nineties.  That is borne out by the exhibits 7 and 8 tendered by Mr Pearsall which are reports from various officers at the Goulburn Correctional Centre which speak very highly of Mr Hubbard and his involvement in training as well as in the induction of juvenile offenders.  His communication skills with the program concerning young offenders were described as exemplary.  The passage quoted in the pre-‘sentence report said that he had been involved in numerous courses and ”has sought and been involved in drug and alcohol counselling for an extended period of time".  He had got involved in other programs. 

24. The report noted that Mr Hubbard's own formative years were described as dysfunctional and ”marred by domestic and alcohol abuse perpetrated by his stepfather, resulting in Mr Hubbard leaving home aged fifteen years of age".  He has what he described as a ”close and supportive relationship with all three of his children".  The mother of his children died some years ago from a heart condition.  He has a sporadic employment history.  He has been on the methadone program since he was released in 1994. 

25. Mr Cordina reported that Mr Hubbard ”appears to have displayed considerable insight into the current matters. He indicated that he was 'embarrassed' by what occurred, and attempted to apologise to the victim of the assault".  He has type 1 diabetes and also needs to commence a form of liver dialysis.  Mr Cordina observed that the sort of offence which he has committed ”are not reflected in his prior antecedents” and that Mr Hubbard ”appears to have accepted personal responsibility for his actions; furthermore, it would appear that he has demonstrated some insight into the consequence of his actions, by attempting to apologise to one of the victims for the assault”.

26. In addition to that material I had the benefit of a detailed psychological report tendered by Mr Pearsall from the experienced Forensic Psychologist, Anita Duffy.  She provided a good deal of information about Mr Hubbard's personal background.  He was effectively rendered homeless when he was thrown out of home by his stepfather aged fifteen and had developed a heroin habit by the time he was eighteen.  It noted that his former partner and wife died in 2005 of a heart attack.  He apparently started alcohol at the age of sixteen or seventeen and went on to barbiturates and cannabis and ended up with a heroin habit which he now deals with methadone. 

27. He is the father of twin boys born in 1996 and a son Jesse born in 2000 as well as an older boy, Shannon, who was born in 1989.  There was a period of separation between him and Donna before she died.  She took the younger boys to Queensland with her and Mr Hubbard told Ms Duffy that he had to fight to get his children back.  Mr Hubbard told Ms Duffy that two of the boys are already showing signs of extreme psychological disturbance as a result of the prospect of him having to go into custody. 

28. I also have a report from Dr Frank McLeod who has been treating Mr Hubbard on the methadone program and sees no evidence that he has used any illicit drugs.  He thought that Mr Hubbard had grown out of the period of his life where gaol was part of his social milieux and hoped to avoid a custodial sentence. 

29. Mr Hubbard is on a regime of various forms of medication for various conditions.  As it happens one of his twin boys, Jay Hubbard, has also a newly diagnosed type 1 diabetes which was picked up last year and the subject of a report which became exhibit 6.  The effect of the prospect of prison on the behaviour of Mr Hubbard's children is reflected in their schooling in the sense that there is a letter from the Principal of Huskisson Public School to Mr Hubbard concerning Jesse.  It indicates that he has been absent or late an unacceptable number of times over 2009 and 2010. 

HIS HONOUR:  There is a reference from Sharmaine Field-‘-‘

PEARSALL:  Your Honour I'm loathe to interrupt, I'm sorry.

HIS HONOUR:  If I have said something wrong interrupt me. 

PEARSALL:  Yes your Honour.  As I understood it it was 2010 was what the -‘ sorry 2009 was fine, it was 2010 was the difficulty because there were ten unexplained absences in 2009 and there were 35-‘-‘

HIS HONOUR:  No you are quite right, thank you, thank you, it is the contrast, thank you.

30. I will return to the letter from the Principal of Huskisson Public School.  There is indeed a contrast, as Mr Pearsall has correctly pointed out, between the absences of Jesse in 2009 before the offence that I am sentencing Mr Hubbard for and his absences in 2010.  There were ten unexplained absences in 2009 but thirty-‘five unexplained absences and three partial absences in 2010. 

31. A reference from a neighbour, Sharmaine Field, who has been known by Mr Hubbard ”before I was ever born" described him as ”a great father and a great help to me and my children”.  She is a single mother with no licence or car and Mr Hubbard assists her with getting her children to school and with shopping and groceries.  She would not be able to cope without him.

32. Mr Hubbard gave a statement to the police which became exhibit D in the proceedings and it records that he would be prepared to give evidence in court if required to do so against his co-‘offender. 

33. Mr Pearsall called his client and one of his client's sons, the twin Cody Hubbard, to give evidence.  Mr Hubbard confirmed his background about being dysfunctional and homeless and turning to drugs.  He described his life in gaol and reiterated that he got involved in education, exercise and work and confirmed that he is now on the methadone program.  He is a diabetic requiring to use insulin four times a day.  He is a single father looking after the three boys, Cody and Jay and the younger boy Jesse.  All three boys have started missing school.  There is aggravation displayed amongst them.  This Mr Hubbard thinks, and I accept, is probably the result of the fear of him going to prison.  This was not the case before these events occurred.  Jay's diabetes needs to be treated similarly to Mr Hubbard's with insulin four times a day and Jay has reacted by not wanting to take the insulin. 

34. Mr Hubbard demonstrated in his evidence significant remorse for what he had done.  He described himself as waking up and vomiting many mornings. His own stepfather, he said, was seventy-‘eight and he acknowledged that the age of the victim really concerned him.  It seems to me that much of the remorse may be related to fear about returning to gaol and what would happen to his children.  That is understandable, but I do accept that he is genuinely remorseful about the offence.  He would go into protection if he went into prison because of the fact that he is prepared to give evidence against the co-‘offender and also because of the age of Mr Kaminski, one of the victims of the offence.  He confirmed that he is prepared to co-‘operate with the police in giving evidence about Max, the co-‘offender. 

35. I am satisfied from his evidence that he did not go to the caravan park with a view to committing these crimes.  I am also satisfied that the co-‘offender Max was the principal instigator of the offence but that Mr Hubbard was fully co-‘operative in all the ways disclosed in the police facts.  Mr Hubbard did not know what got into him and acknowledged that it should not have happened.  Asked by Ms Cocca whether he had tried to apologise again to the victims he said that he could not because he was not permitted to approach either one.

36. Cody Hubbard gave evidence about his father whom he loves and regards as a very good father.  They do things with him all the time.  There was one of his father's brothers, Paul, who lived nearby but sadly died last year.  The oldest boy, Shannon, is now twenty or twenty-‘one and he and his partner have a young baby which is only a few weeks old.  Cody described the incident from his point of view and said that after his father was charged he felt angry and upset as were his brothers as well.  He said that so far as his brother's diabetes is concerned his father makes sure that he is treated.  He confirmed that his father too is very upset about what had happened to him. 

30. I have been assisted by both Mr Pearsall and Ms Cocca in their submissions.  Ms Cocca acknowledges that the plea of guilty entered by Mr Hubbard was made at the earliest available opportunity and should attract a maximum discount of twenty-‘five per cent and I propose to allow that in due course.  Ms Cocca emphasised the seriousness of the crime and the importance which Parliament has attached to the crime against Mr Kaminski by fixing a standard non-‘parole period although she acknowledged fairly that this offence lay below the middle of the range of objective seriousness.  She reminded me about the purposes of sentencing and in particular the protection of the community from behaviour such as this and the denunciation of conduct such as this, as well as recognising the harm to the victim and ensuring that Mr Hubbard was appropriately punished for this crime.  She pointed out Mr Hubbard's criminal history.  I do not think nor do I think Ms Cocca was suggesting, that it is an aggravating factor under s 21A.  Mr Hubbard does not have a completely clean record so that he does not receive the benefit that somebody with a unblemished record would receive from a court but I do take into account that with a few relatively minor exceptions he has had a clean record for almost twenty years. 

31. Mr Pearsall emphasised the delay between the offence, which was committed on 8 February 2010, and these sentencing proceedings - the delay which it is acknowledged was not of Mr Hubbard's making and the impact which it would have on his rehabilitation and the anxiety which he would feel in the time so far as wondering what would happen to his children eventually was concerned.  I accept that submission.  Mr Pearsall also drew my attention to his client's contrition and plea of guilty which I accept and pointed to his client's being prepared to assist the authorities.  I accept that that is a relevant factor and Ms Cocca also accepts that Mr Hubbard being prepared to assist the police with the prosecution of his co-‘offender is a relevant factor.  I accept that assistance may well have an impact on him.  I am unable to determine what sort of impact - it may affect his custodial conditions if he goes to gaol, it may affect his security if he is out of gaol.  The prosecution of the co-‘offender has not proceeded so it is difficult to do much more than to acknowledge that he is prepared to and to give him some credit for that. 

32. The significant issue which Mr Pearsall addressed was the impact which Mr Hubbard going to gaol would have on his family.  That prospect alone has affected the children and has disturbed them and is reflected in their behaviour, as Mr Pearsall points out.  There was a plan, which was referred to in evidence, for the children to go with their Uncle Paul but he unfortunately has died and that is not available as an option.  As I said, the twins are about fifteen and the younger boy is about ten.  The oldest boy who is twenty or twenty-‘one has just had a baby so that there would be obvious difficulties staying with them.  As Mr Pearsall points out living with their older brother means that ”the long term viability of this is in doubt".  Mr Pearsall points to Jay's diagnosis of type 1 diabetes and the effort which his father makes in assisting with managing that condition.  I accept that Mr Hubbard's prospects of rehabilitation are good.  I also accept that he is unlikely to re-‘offend. 

33. I turn now to consider the sentence which I must impose.  Mr Pearsall argued that it was open to me to consider a sentence which does not involve full-‘time custody, in other words I can sentence his client in a way other than sending him to gaol.  Ms Cocca argued that if I was to do that then I would be falling into a legal error and that it would be an error of such a kind that the Director of Public Prosecutions would consider appealing to the Court of Criminal Appeal.  Mr Pearsall pointed to statistics which indicated that about a third of offenders convicted of this sort of crime avoided full-‘time prison. 

34. I do not regard this as appropriate for a sentence other than full-‘time custody.  The seriousness of the offence committed on Mr Kaminski - given the description that I have given of it - together with the second attack on the other man mean that the criminal behaviour, which was unprovoked and violent, must be in my opinion accompanied by a full-‘time custodial sentence. 

35. Given where the offence against Mr Kaminski lies in the range of objective seriousness, and taking into account the various other factors that are relevant to an objective assessment of the offence, I would regard a sentence of six years imprisonment as appropriate.  However, taking into account the subjective matters that Mr Pearsall has referred to, including the delay, the obvious contrition and the assistance, I would be prepared to reduce that sentence to four years imprisonment.  Mr Hubbard has pleaded guilty to this offence, in doing that he has faced up to what he has done and saved the justice system a good deal of time and effort.  Ms Cocca acknowledges that he is entitled to the maximum discount for this of twenty-‘five per cent.  Accordingly I would reduce his overall sentence for the crime of break and enter and commit serious indictable offence to one of three years imprisonment. 

36. I turn now to fix the non-‘parole period for the offence committed against Mr Kaminski and to fix a sentence for the offence committed against Mr Curthill. First I will fix the penalty for the offence committed against Mr Curthill and I fix that as six months imprisonment to commence today, 31 March 2011 and to conclude on 30 September 2011.  I fix the non-‘parole period for the offence committed against Mr Kaminski as a period which will commence, and I which I will have calculated in a moment, in one month's time and will expire on 24 December 2011. 

37. I need to explain fixing that non-‘parole period in respect of the offence against Mr Kaminski.  I find that there are special circumstances in fixing the normal ratio between the non-‘parole period and the parole period.  For a penalty of three years, which I am imposing on Mr Hubbard for the offence against Mr Kaminski, the normal non-‘parole period would be three-‘quarters of that, that is twenty-‘seven months imprisonment.  I am reducing that to a non-‘parole period of between seven and eight months imprisonment.  That is a significant reduction.  I am doing that because I regard there being special circumstances for making that reduction.  The special circumstances in this case are quite extraordinary and I think border on, if not cross, into the situation where I can take into account hardship caused to the other members of Mr Hubbard's family by the consequences of the imprisonment.  I take into account these factors.  First Mr Hubbard is a single father.  Secondly, the boys' mother has died not many years ago.  Third, an option for the boys care in Mr Hubbard's absence of his own brother is no longer available because of the death of his brother.  Next, an option of the boys staying with their eldest brother is manageable but not for an extended period of time, that is because the eldest brother and his partner have an infant baby on their hands.  Next, one of the boys suffers form an insulin dependent disease, the same as the one Mr Hubbard suffers from, and Mr Hubbard is in a very good position to be able to administer the treatment to his own son.  Next, I accept Mr Hubbard's account of the reaction of his boys to the prospect of him going to gaol and I accept Cody's account to the same effect. There is objective evidence about the impact of that prospect on Jesse, being the letter from the principal.  I am satisfied that an extended period in custody for Mr Hubbard would result in a serious disruption in the lives of his boys.  I accept the evidence that he has done a remarkable effort in turning his life around and in making a big effort in being a father, a single father, for his boys.  I take into account that it will be very important for that process, which involves four lives, including Mr Hubbard's, not to be set back too much. 

38. They are the special circumstances which I take into account in fixing a non-‘parole period in respect of the offence of break and enter and commit serious indictable offence of seven months and twenty-‘five days to commence on 30 April 2011 and to conclude on 24 December 2011.  It is not coincidence that I have fixed the release of Mr Hubbard to be just before Christmas this year so that he will be available during the holiday period and next year as his boys enter a new school period.  I repeat that for me to impose a sentence which did not involve any form of full-‘time custody would in my opinion involve appellable error.  In that regard I accept the submission of Ms Cocca.

39. I am going to sentence you now, Mr Hubbard. In respect of the offence of assault occasioning actual bodily harm in company, I sentence you to a sentence of six months imprisonment to commence today 31 March 2011 and to conclude on 30 September 2011. In respect of the offence of aggravated break and enter and inflict actual bodily harm I set a non-‘parole of seven months and twenty-‘five days to commence on 30 April 2011 and to conclude 24 December 2011. The balance of the term will be two years three months and six days to commence on 25 December 2011 and to conclude on 30 March 2014. Under s 50 of theCrimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 24 December 2011.

HIS HONOUR:  Have a seat, Mr Hubbard, for a moment.  I do not think you are going anywhere, that is why I did not ask for Corrective Services to come in straight away.  Now first we should make sure I have got the sums right.  Yes there needs to be an adjustment in the additional period.  The balance of the term in due course, I will make this formally, will be two years four months and five days from 25 December 2011 to 29 April 2014.  The overall sentence is still three years.  So just to check with you, Mr Cocca and Mr Pearsall, we have got six months from today until 30 September 2011 and then we have got a seven month twenty-‘five days non-‘parole period from 30 April 2011 to 24 December 2011 with a balance of the term of two years four months five days from 25 December 2011 to 29 April 2014 which is an overall sentence of three years.  Take your time, these exercises are not straightforward. 

PEARSALL:  Your Honour can I just check the expiry of the head sentence date is-‘-‘

HIS HONOUR: Yes, 29 April 2014. So it commences 30 April 2011 and expires 29 April 2014 so that is three years. I commenced it in one months time.

PEARSALL: Yes.

HIS HONOUR: So that he is serving some time in respect of the second offence, namely one month, that is the fixed six months.

PEARSALL: Yes.

HIS HONOUR: And I have commenced this in a months time on 30 April, it expires 29 April in three years time and the in between bit my associate has got from the on-line calculator thing-‘-‘

PEARSALL: Yes that appears to be correct your Honour.

HIS HONOUR: Once we have got that I need to fix some parole conditions if any.

PEARSALL: That appears to be correct your Honour.

HIS HONOUR: In a moment I will correct my sentence. Parole conditions, good behaviour and come to court if called upon to do so, change of address notify the parole authority. I do not think he needs supervision.

COCCA: No your Honour.

PEARSALL: No your Honour. HIS HONOUR: I think he knows, he has got his life together, this was just an extraordinary thing that happened.

PEARSALL: Yes.

HIS HONOUR: Ms Cocca?

COCCA: I think the Parole Board automatically fixes their own your Honour.

HIS HONOUR: No because it is three years or less I fix, I -‘ I have ordered his parole, I order his release on parole and fix the conditions.

PEARSALL: Could I ask your Honour to ..(not transcribable).. with the Court papers, I'm told it might be important for the gaol administration a copy of his-‘-‘

HIS HONOUR: Yes, the psych, Anita Duffy.

PEARSALL: That, your Honour, of course.

HIS HONOUR: Yes.

PEARSALL: And also a copy of his prescription for methadone. I've got a copy that I can hand up.

HIS HONOUR: Thanks, have you, look that's good. Have we got a clean copy of Anita Duffy's report?

PEARSALL: We have, your Honour, in fact I was going to give your Honour to place on the Court papers the original, we found the original.

HIS HONOUR: Let's send that with, I'm glad you reminded me, I did this yesterday, it's regarded as very helpful to those who classify an offender so if you give to the Corrections Officer behind you the prescription and Ms Duffy's report.

PEARSALL: Yes your Honour.

HIS HONOUR: I will fix those three, so I will sentence him now with those three conditions.

PEARSALL: Yes your Honour.

HIS HONOUR: Mr Hubbard I am just going to adjust the sentence because we just had to get the numbers right.

47. I confirm in respect of the second charge, the assault, a sentence of six months to start today 31 March 2011 to expire on 30 September 2011.  For the break and enter and commit serious indictable offence you have a three year prison sentence to commence not today but in a months time, 30 April 2011.  It expires on 29 April 2014.  I have fixed a non-‘parole period of seven months and twenty-‘five days, that starts in a months time 30 April 2011 and expires on Christmas Eve 24 December 2011.  Then you serve the balance of the term of the sentence in the community, as you well know, from 25 December 2011 until 29 April 2014.  I order your release on parole on 24 December 2011.  The conditions of your parole are three: (1) that you be of good behaviour and stay out of trouble; (2) that if you get a notice saying that you have to come to court you come to court and (3) that if you change your residential address you let the registrar at this Court and the Parole Authority know so that everybody knows where you are.

OFFENDER:  So just to be clear with the kids I get out in December?

HIS HONOUR:  Yes, you'll be out, I've ordered your release on Christmas Eve. 

48. I have fixed the second sentence to commence in a months time because you need to serve separate time for each crime.  There is a lot of accumulation of five months but the first month you are serving for that second assault and the rest you are serving for, at least the other five months, and then the last bit for the assault on the old man.

OFFENDER:  Can I just say goodbye-‘-‘

HIS HONOUR:  You may, yes.

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Amendments

27 July 2015 - corrected formatting and paragraph numbering from [45] to [48]

Decision last updated: 27 July 2015