Regina v Hunt

[2002] NSWCCA 266

CITATION:	Regina v Hunt [2002] NSWCCA 266
FILE NUMBER(S):	CCA 60933/01
HEARING DATE(S):	25 June 2002
JUDGMENT DATE:	25 June 2002
PARTIES :	Regina v Robert Bruce Hunt
JUDGMENT OF:	Smart AJ at 1,43,45; Blanch AJ at 44

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/41/0147
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	(A) G Bashir (C) W G Dawe QC
SOLICITORS:	(A) Gregory J Goold (C) S E O'Connor
CATCHWORDS:	Sentencing - suspended sentence - breach of conditions - approach required under s.99 of the Crimes (Sentencing Procedurre) Act 1999
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Foster 2001 CCA 211
DECISION:	Leave to appeal granted - Appeal allowed - Sentence imposed by Shillington DCJ quashed -In lieu the applicant is sentenced to twenty months imprisonment to commence on 16 November 2001 and to expire on 15 July 2003 with a non-parole period of ten months commencing on 16 November 2001 and expiring on 15 September 2002 on which date the applicant is to be released on supervised parole.

IN THE COURT OF
CRIMINAL APPEAL

SMART AJ

BLANCH AJ

Tuesday, 25 June 2002

REGINA v ROBERT BRUCE HUNT

JUDGMENT

1. SMART AJ: Robert Bruce Hunt seeks leave to appeal against the severity of a sentence passed upon him by Shillington DCJ on 6 December 2001 consequent upon proceedings taken for breach of a bond.

2. On 30 November 2000 Goldring DCJ sentenced the applicant to imprisonment for twenty months for on 16 January 2000 at Moruya inciting NSS, a person then under the age of sixteen, namely eleven years, to commit an act of indecency with him. The maximum penalty is two years imprisonment.

3. Goldring DCJ ordered that execution of the sentence be suspended for the term of the sentence and that the applicant be released from custody on condition that he entered into a good behaviour bond for the term of the sentence. The judge specified a number of conditions.

4. On 16 January 2000 the applicant had gone to the house of Ms Bennett, his former de facto, at her request to fix a toilet cistern. The applicant and Ms Bennett had lived together for some years and they had two young children. She was pregnant with a third child. NSS was the daughter of Ms Bennett and another man but she had lived with her mother and the applicant while they lived together.

5. When the applicant arrived at Ms Bennett’s house it was empty. Ms Bennett was away and the children were at their grandmother’s home. The applicant put on a pornographic video, took off his clothes and began to masturbate in the loungeroom. NSS arrived to vacuum the house as her mother was expected back shortly.

6. The applicant invited NSS to join him in masturbation, she refused. He offered her increased money which she also refused. She told him that she was waiting for him to go so that she could lock up the house. He dressed and left.

7. NSS locked the house, went back to her grandmother and reported the incident to her. Before any formal complaint was made the applicant apologised to the mother and NSS. He indicated at that stage that if the complaint were proceeded with he would plead guilty so that NSS would not have to go to Court.

8. The applicant lived with his mother who was a serious alcoholic, as was his deceased father. The applicant said that he lived with his mother because she needed help. However she always had alcohol in the house and that was a real temptation to him.

9. He started one rehabilitation program but left after about a month as he smoked some cannabis. Then he took part in the program at Oolong House, Nowra. He stayed there for about thirteen weeks and completed that program. While at Oolong House he suffered a mild stroke and received treatment for it in Moruya Hospital. He told the judge that since going to Oolong House he had not consumed alcohol or smoked cannabis and that he did not intend to do so in the future.

10. Goldring DCJ accepted that at the time of the offence the applicant was affected by substances that he had consumed and that he did not go to Ms Bennett’s house with the intention of committing any offence. The judge noted that he had showed remorse since the offence.

11. Goldring DCJ remarked that the offence was a serious one, particularly because of what he regarded as the breach of trust. The applicant was someone the children knew. The judge thought that there were good prospects that the applicant would not abuse alcohol or drugs again. He had acknowledged that he had a substance abuse problem. He had his own business which seemed to be doing quite well. He was aware of his responsibilities towards his children.

12. Goldring DCJ warned the applicant in unmistakable terms that if he breached the bond he would have to serve the full twenty months in gaol. Goldring DCJ instructed the applicant to keep off drugs and alcohol.

13. On 11 February 2001, less than three months after signing the bond, the applicant was stopped in Sharp Street Cooma. He was clearly under the influence of alcohol and stated that fact himself a number of times. He was requested to take a breath test. He failed to breathe into the machine properly. He was taken to the station for a breath analysis test. Subsequently he escaped from police custody and went to his mother’s home at Moruya. On the following day he telephoned the police at Cooma. He was told he would be subject to prosecution by summons and that followed.

14. On 17 October 2001 the applicant was convicted in the Queanbeyan Local Court and convicted of driving whilst disqualified, driving under the influence of alcohol and escaping from lawful custody. He was sentenced to three months imprisonment on each charge. He was fortunate that the sentence for escape was concurrent and not cumulative.

15. The applicant appealed to the District Court. Shillington DCJ dismissed the applicant’s appeal from the Local Court finding the applicant’s explanation unacceptable. That judge then dealt with the breach of the bond. After briefly summarising the facts before Goldring DCJ Shillington DCJ mentioned the earlier judge’s assessment that the offender’s conduct comprised a serious breach of trust. Shillington DCJ noted that the applicant had not complied with his bond because of his conduct at Cooma and additionally that he had not complied with other conditions. The latter matter was under challenge.

16. The judge summed up the position thus

“I see no basis upon which I could do other than revoke the revocation of the sentence and therefore it follows that he must serve twenty months. I included (sic) also that that sentence should commence at the expiry of the present sentence being served, that is 16 January 2002. I fix a non parole period of fifteen months and he is therefore to be released on parole on the expiry of fifteen months from 16 January 2002”.

17. Appeal Ground 1 reads:

"The … judge erred in failing to sentence the applicant in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 including s 24, 98(3) and 99."

Having revoked the bond as to which there could be no challenge, s 99(4) applies. That provides,

“This Act applies to the sentencing or resentencing of an offender under this section in the same way as it applies to the sentencing of an offender after conviction”.

The remainder of the Act is thereby invoked.

18. The Court must next determine what the sentence of imprisonment should be: R v Foster (2001) NSWCCA 215. The judge was mistaken when he said that upon revocation of the bond therefore it follows that he must serve twenty months if he meant by that that the applicant had to serve 20 months in prison subject to the fixing of a non-parole period. Section 99(2) permits periodic detention or home detention. Home detention was not available as the sentence of imprisonment was for a sexual offence with a child. Periodic detention was not a sufficient penalty. A full time custodial sentence was required for an offence of this kind when a bond has been breached. The applicant had not abstained from liquor and committing offences. The judge did not give effect to s.99(4) of the Act. He appears to have just adopted what Goldring DCJ said.

19. Appeal Ground 2 reads:

"The … judge erred in failing to adequately consider the facts and circumstances of this offence.

20. The judge summarised the facts briefly and adopted the view of Goldring DCJ that the offence involved a serious breach of trust. There was no independent consideration of the offence and no apparent consideration of the subjective features of the applicant.

21. Those subjective features were quite significant. The applicant had certainly attempted to rehabilitate himself although there had been lapses. At the time of the sentence the applicant was in full time employment as a furniture maker and logging contractor. He had a business which was likely to prosper. The applicant had children to support, he was also undertaking treatment with a psychologist, Mr Peter Erskine.

22. The applicant accepted full responsibility for what had happened. “I feel absolutely terrible, terrible for what I have done”, he remarked. He had apologised to both the complainant and her mother.

23. Goldring DCJ appears to have commenced with the maximum penalty of two years. That was not a permissible course in this case. It was not a case where the starting point should be the maximum penalty of two years. There was a further error in having regard to the alleged breach of trust bearing in mind that the applicant was charged under s 61N of the Crimes Act and not 61O which refers to aggravating circumstances, one of those being a person under authority. It is to be noted that in the present case that the applicant left when he was told by the child to do so and that the child was not under the applicant's authority at the time of the offence.

24. Complaint was also made (Appeal Ground 3) that the judge had erred in failing to give consideration to the application of and to find special circumstances. The judge imposed what might be described as the usual non-parole period of three-quarters of the head sentence. The judge did not take into account it was submitted factors such as the health, and disabilities of the applicant and his sentence being served on protection with the harsher conditions involved. There was evidence before the judge of the applicant’s ill health. He had had a troubled history, to part of which I have briefly referred. He was attempting rehabilitation although that was proving to be difficult.

25. The sentence of 20 months imposed by Goldring DCJ was erroneous for the reasons earlier mentioned. The correct initial sentence was one of 18 months. The sentence imposed by Shillington DCJ was also erroneous for the reasons earlier given. It could not be said that lesser sentences were not warranted. It falls to this Court to re-sentence the applicant. I am of the opinion that the appropriate non-parole period is one of 10 months. I have had particular regards in fixing the non-parole period to the evidence which has been given this morning as to the conditions which the applicant has encountered in custody. (His life was threatened necessitating his transfer to another unit and an inmate with Hepatitis C tried to put his blood in the applicant's blood)

26. When we come to the formulation of the orders Ms Bashir have we got the power under the Act to reduce the original sentence from 20 months to eighteen months?

27. BASHIR: Your Honours that was certainly done in the case of Reeves which is on my list of authorities. There was another case before the Court where it was seen to be a question of principle and that would need to be referred to a three judge bench so there’s split authority in relation to that. But certainly, in the matter of Reeves that was done.

28. SMART AJ: Ms Bashir, I’m just wondering, there having been no appeal from the sentence of Goldring DCJ, we’d better have a look at s 99 hadn’t we? As I understand the position the matter is looked at afresh.

29. BASHIR: That’s right. Section 99 subs 4 says that the Act applies to the sentencing or resentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction.

30. SMART AJ: It’s not going to matter practically very much because whether we leave it at twenty months or eighteen months the non parole period is going to be ten so it’s not going to make any practical difference. If there’s a major question of principle involved which would mean that we couldn’t deal with it then we would have to refrain from making any orders and refer it on wouldn’t we?

31. BLANCH AJ: What would you say to just dealing with the matter on the basis of leaving the sentence at twenty months with a ten month non parole period?

32. BASHIR: Your Honours if that was the case I’d ask you certainly to back date the sentence which would mean--

33. BLANCH AJ: Certainly there’s a capacity to back date the sentence.

34. SMART AJ: That would mean that in lieu of the sentence imposed the applicant would be sentenced to twenty months imprisonment to commence on - we’ll go back two months, two months from 16 January will take us back to 16 November wouldn’t it, 16 November 2001.

35. BASHIR: That was when it was originally commencing your Honour.

36. SMART AJ: Your sentence on breach commenced on 16 January 2002.

37. BASHIR: Expired - I’m sorry I might be confused when I meant to back date your Honours that sentence commenced, the breaching offences, the sentence for the breaching offences commenced on 17 October--

38. SMART AJ: We’re not going back as far as that. What I thought was right initially was eighteen months from 16 January 2002, you see because you’ve got to remember that you’ve got an escape sentence that’s got to be cumulative.

39. BASHIR: Yes your Honour you’re quite right.
40. SMART AJ: So what we can do is to back date it to 16 November 2001 and that would leave the twenty months and that’s twenty months from that will take you to 15 July 2003 and then the ten months will expire on 15 September 2002.

41. DAWE That’s correct your Honour.

42. SMART AJ: Some debate has taken place as to the power of this Court to interfere with the initial sentence of twenty months. The parties were reluctant to argue a question of principle which related to a period of two months and it has been suggested that the appropriate course would be to have a sentence of twenty months backdated to 16 November 2001. That is an appropriate course.

43. Accordingly I propose the following orders:

1. Leave to appeal granted. Appeal allowed. Sentence imposed by Shillington DCJ quashed.

2. In lieu of the sentence imposed the applicant is sentenced to 20 months imprisonment to commence on 16 November 2001 and to expire on 15 July 2003 with a non-parole period of 10 months commencing on 16 November 2001 expiring on 15 September 2002 on which date the applicant is to be released on supervised parole.

44. BLANCH AJ: I agree.

45. SMART AJ: The orders are as I have proposed.

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