Hoskins v R

[2016] NSWCCA 157

Court of Criminal Appeal (NSW)|2016-07-01|Before: Payne JA, Wilson JJ, Grove AJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2016-07-01

Before

Payne JA, Wilson JJ, Grove AJ

Catchwords

149 A Crim R 417 Hoskins v R [2014] NSWCCA 207 Jiang v R [2010] NSWCCA 277 Khoury v R [2011] NSWCCA 118
209 A Crim R 509 Markarian v R [2005] HCA 25
Leung v The Queen [2001] HCA 64

Source

Original judgment source is linked above.

Catchwords

149 A Crim R 417 Hoskins v R [2014] NSWCCA 207 Jiang v R [2010] NSWCCA 277 Khoury v R [2011] NSWCCA 118209 A Crim R 509 Markarian v R [2005] HCA 25Leung v The Queen [2001] HCA 64

Judgment (22 paragraphs)

[1]

Judgment

THE COURT: On 26 March 2013, following a trial before a jury, Darren Michael Hoskins, the applicant, was convicted of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Two of his co-offenders, Sean Sutcliffe and Darrin Moulds, were also convicted of murder. Michael Brown was convicted of manslaughter and the final co-offender, LC, was dealt with in earlier proceedings, ultimately giving evidence against his co-offenders.
On 7 June 2013, the applicant was sentenced to 12 years imprisonment to date from 4 July 2011 and expiring on 3 July 2023. A non-parole period of 9 years was fixed, and is due to expire on 3 July 2020.
On 21 June 2013, the applicant filed a Notice of Intention to Appeal ("NIA") against both conviction and sentence, but the matter ultimately proceeded to hearing on 27 August 2014 as an appeal against conviction only: Hoskins v R [2014] NSWCCA 207. The appeal against sentence was, effectively, abandoned.
The applicant now seeks leave to appeal, out of time, against sentence.

[2]

[3]

The Sentence Imposed by the Trial Judge

The trial judge described, at [32] - [34], the objective seriousness of the applicant's offending as follows: "Hoskins was, I find, a participant in a joint criminal enterprise to inflict grievous bodily harm by some means on the victim and he is liable for the murder which was committed accordingly. On his own version to police, Hoskins entered the fray with a baseball bat which, although he dropped it at one point, was retrieved and used, although he claimed that he may or may not have made contact. Certainly no major injury to the victim could be associated with a heavy blow by the bat but I reject the contention that Hoskins' purpose was to disarm Jamie LaFoe. As I have said his intention was to cause grievous bodily harm and punish him. It is not insignificant that Hoskins came to the scene after collecting passengers in circumstances where it was obvious that there was potential for trouble of some sort and the numbers of men would give an advantage in a physical sense to any confrontation. The departure after first arrival, the waiting nearby and the return are all indicative of Hoskins' preparedness to become engaged in whatever trouble might erupt. Added to his knowledge of the additional four men in the Moulds vehicle, the Crown description that they were preparing for ambush was quite accurate."
The applicant's sentence incorporated the following: 1. A 33 per cent reduction in sentence due to provocation by the deceased; 2. Backdating the commencement date of the sentence to take into account the time that the applicant had been in custody on remand; and 3. An allowance of 60 days to reflect strict bail conditions that the applicant had been subject to whilst awaiting trial (60 days being approximately 25 per cent of the time the applicant had spent on bail).
The sentencing judge also took into account the following subjective factors: 1. The applicant had a back injury. Treatment in gaol had been inadequate leading to him being granted bail whilst awaiting trial, and there was no reason to think that the medical treatment would be markedly different in the future; and 2. The applicant was in protective custody and his sentence would be served in custodial conditions more onerous than those of other prisoners who were in the general gaol population.

[6]

Ground One: "His Honour erred when he took into account my psychologist report"

Before the sentencing Court the applicant relied upon a report from a psychologist, Ms Barbara Panagiotopoulos. By ground one, the applicant contends that the report was not taken into account by the sentencing judge, even though it was favourable to him, and despite the fact that psychological reports tendered during sentence proceedings by his co-offenders were given consideration.
It is clear from his Honour's reasons that he both read and carefully considered the report of Ms Panagiotopoulos. He concluded, however, that the contents of the report were of limited assistance, particularly in assessing the applicant's prospects of rehabilitation. His Honour specifically noted the absence of information as to the administration of relevant psychological tests, with the report consisting principally of information provided to the author by the applicant. The sentencing judge concluded that the opinions expressed in the report lay outside the author's area of expertise. His Honour said, at [37] of the judgment: "[…] Much of the opinion therein lies outside what I would consider the expertise of a psychologist. The report does not record application of specific psychological tests and their results. A number of documents were listed as having been examined. I do not doubt the sincerity of the reporter but I can only conclude that her favourable predictions may or may not come to pass and I make no finding as to probability."
It was entirely open to his Honour to draw those conclusions. In many cases statements made by an offender to an expert and recounted in an expert report, in the absence of evidence from the offender as to the truth of those statements, are of very little weight, if any: R v Qutami [2001] NSWCCA 353, at [58] and [79].
The report of Ms Panagiotopoulos was of limited utility. It did not contain any objective material which suggested, let alone compelled, a conclusion different to that reached by the sentencing judge.
The fact that reports tendered on behalf of co-offenders were or may have been given weight by the sentencing judge can say nothing about the question of error in the treatment of the report relied upon by the applicant. His Honour was both entitled and obliged to assess the weight to be given to the report of Ms Panagiotopoulos by reference to its contents, and the absence of foundational evidence from the applicant.
No error has been shown. We would not grant leave to advance this ground.

[8]

Ground Three: "His Honour erred when he took into account my lack of medical treatment in gaol"

Grounds two and three will be addressed together as they both relate to the applicant's health problems and the delays he has experienced in receiving appropriate treatment in the prison system.
The applicant contends that his poor health and the deterioration in his mobility due to a spinal problem have not been adequately treated in custody. Although he does not specify the precise nature of the error made by the sentencing judge in addressing this issue, it appears that the applicant's contention is that the sentence imposed upon him by the sentencing judge did not properly reflect this feature of the subjective case.
Setting aside for the moment the applicant's experience in prison following the imposition of sentence, it is difficult to see how the applicant could make good these grounds in light of the attention given to the question of the applicant's health by the sentencing judge. His Honour was cognisant of, and referred to, the applicant's poor health, and the lack of adequate medical treatment that had been available to him when on remand.
At [34] and [35] of the sentence judgment his Honour noted that the applicant was in poor health and suffered from a deteriorating spinal condition. He referred to the inadequate medical treatment provided to him in goal, as detailed in an earlier judgment relating to bail, and noted that those inadequacies were likely to continue into the future. The sentencing judge specifically said that some allowance would be made in assessing sentence to reflect that feature of the subjective case (at [35]). More could not be required.
Whilst an offender's health difficulties and the additional hardships that such difficulties may lead to for an offender in custody are matters legitimately taken into account by a court in assessing sentence, it is simply one of the features to which the court must have regard. It cannot be concluded in the applicant's circumstances that the degree of amelioration of penalty his Honour allowed entailed error.
The applicant's current circumstances are not relevant to the determination of this application. Not only is there no evidence before this Court of the applicant's state of health post-sentence, or of the treatment regime presently available to him, but any such evidence may not meet the test of fresh evidence, and would thus be inadmissible: Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417 at [63]; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104] - [121].
The applicant has failed to demonstrate any error in the sentencing judge's consideration of his health problems and medical treatment in custody and we would not grant leave to advance these grounds.

[9]

Ground Four: "His Honour erred when he took into account my strict bail conditions"

Although not specifically stated by the applicant, his argument appears to be that the discount of 60 days from the sentence imposed upon him was not an adequate reflection of the 229 days during which he experienced, what he contends, were onerous conditions of bail.
As has been noted, after a period spent in custody on remand awaiting trial, the applicant was granted conditional bail, principally because of his health difficulties and the lack of appropriate treatment available to him as a remand prisoner.
The bail conditions imposed upon the applicant included a residential condition, a daily reporting condition, a prohibition on contact with both Crown witnesses and any of the co-accused, a condition requiring the applicant to pursue employment, a curfew condition requiring him to be at his residence between 7pm and 7am each night, and a condition requiring him to present himself at his front door at the request of a police officer, for the purpose of checking his compliance with the curfew.
The fact that an offender was subject to strict conditions of bail during the period awaiting trial or sentence is a matter that may be taken into account by a sentencing judge, but there is no obligation to do so. Much will depend upon the facts of the particular case. Certainly, there is no principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions of bail.
It is a matter for the sentencing judge to assess the facts of the particular case and determine whether bail conditions to which an offender was subject amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243, at 258; R v Webb [2004] NSWCCA 330 at [18].
The bail conditions imposed upon the applicant were strict, but there is a real factual issue as to whether an overnight curfew and, perhaps additionally, a daily reporting condition, are so restrictive as to amount to quasi-custody.
Here, although it was by no means mandatory for him to do so, the sentencing judge specifically took into account the curfew and reporting conditions to which the applicant was subject, in the exercise of his discretion, to reduce the sentence that would otherwise have been imposed by 60 days (at [39] of the judgment). There was no basis for an equivalent allowance of 229 days reduction in sentence to reflect 229 days of restricted liberty on bail. Time spent by an offender residing in his or her own home in the community prior to trial or sentence cannot be directly equated to time spent in the much harsher environment of a prison.
We do not regard the 60 day reduction of sentence allowed to the applicant as capable of demonstrating error.
We would not grant leave to advance ground four.

[12]

Ground Seven: "His Honour erred when he took into account I played lesser part, then Moulds is given a lesser sentence"

The applicant submitted that the sentencing judge erred by imposing a shorter sentence on the applicant's co-offender, Darrin Moulds, than the sentence he received, despite the fact that the applicant's culpability was assessed as being less than that of his co-offender, Mr Moulds.
His Honour was well aware of the parity principle. He made a careful assessment of the culpability of each of the offenders, and of the subjective circumstances of each.
Whilst the culpability of Darrin Moulds was assessed as being higher than that of the applicant, his Honour regarded his subjective case as more favourable. He said (at [52] - [53]): "A disturbing aspect of Moulds' situation is the callousness revealed in the text messages to which I have made earlier reference. Overall, an objective assessment of Moulds' capability including striking the victim, non fatally, with an iron bar, would tend to make his culpability higher in scale than that of Hoskins but of course less than Sutcliffe who performed the stabbing. However, taken altogether I consider Moulds' favourable subjective factors exceed those available to Hoskins with a result that I would consider a similar head sentence."
This assessment resulted in a head sentence (of 12 years) that was the same for both the applicant and his co-offender.
A sentence of 10 years imprisonment was ultimately imposed on Darrin Moulds. The sentence was calculated after a reduction of 33 per cent from a proposed sentence of 18 years imprisonment, with a further reduction of 2 years to reflect past and future assistance (at [56]). That sentence took into account what his Honour regarded as the more favourable subjective circumstances of the co-offender. Mr Moulds was 28 years old at the time of the commission of the offence. He had a minor criminal record which was of no relevance to the sentencing task. He had been diagnosed as having a developmental disability, and psychological testing assessed him as functioning at a level consistent with a mild or borderline intellectual disability. Like the applicant, he was held in protection, and was likely to remain in protective custody for the duration of his sentence. His Honour concluded that the co-offender's prospects of rehabilitation were favourable.
The applicant was aged 36 at the time of the murder, and had a criminal history which included offences of violence. His health problems and the onerous nature of custody were features taken into account in his favour. Unlike the situation of Darrin Moulds, his Honour was not able to conclude that the applicant had favourable prospects of rehabilitation.
The different features of Mr Moulds' circumstances distinguished his case from that of the applicant and, together with the reduction of sentence specifically reflecting assistance to the authorities, justifies the disparity.
As was observed in Wong at 608 ([65]): "To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (per Gaudron, Gummow and Hayne JJ, emphasis in original)
The cases of the two men differed in relevant respects, leading to differing outcomes.
Whilst the applicant referred in his submissions to his current willingness to provide information concerning "a known paedophile", that was not evidence before the sentencing judge, and not something that could have ameliorated the sentence to be imposed.
We would not grant leave to advance ground seven.

[13]

Ground Eight: "His Honour erred when he failed to consider my family situation"

The applicant submitted that he should have received a specific allowance in the sentence imposed to reflect the hardship his incarceration was causing to his family. In support of this, the applicant brought to the attention of this Court a number of unfortunate matters relating to his children which we have carefully considered but do not detail here. Most of those issues have arisen since his incarceration, and were not matters the subject of evidence before the sentencing judge.
A term of imprisonment will, unfortunately, always cause hardship to an offender's family but, except in circumstances where that hardship is extreme, it is not ordinarily a relevant consideration on sentence. In R v Edwards (1996) 90 A Crim R 510, at 515, Gleeson CJ said: "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment."
There was no evidence before the sentencing judge to suggest the applicant's family would suffer any unusual or extreme hardship. Events that have taken place since sentence was imposed in 2013 cannot assist the applicant in demonstrating error by the sentencing judge.
We would not grant leave to advance ground eight.

[18]

Ground Thirteen: "His Honour erred when he failed to consider special circumstances"

The applicant's only submission addressing this ground was as follows: "I feel I should have been given a shorter sentence with a longer court ordered parole period due to my circumstances."
A submission was made to the sentencing court that a finding of special circumstances should be made, but rejected by his Honour. At [39], his Honour said: "Application is made to vary the formula for division of head sentence from that specified in the applicable statute by reason of special circumstances. I accept that health can operate as such but I am unpersuaded to make a special circumstances finding in this instance."
A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act is a discretionary matter for the sentencing judge. It is a finding in respect of which this Court will be slow to interfere: Jiang v R [2010] NSWCCA 277, at [83].
The fact that there are features of an offender's circumstances which could establish a finding of special circumstances does not impose an obligation on the sentencing court to make such a finding: R v Cramp [2004] NSWCCA 264, at [36]. An error in the exercise of that discretion must be shown. No such error was pointed to by the applicant here.
For a finding of special circumstances to be made, there must be some particular utility in a period of parole longer than that which would flow from the ordinary operation of statute. It is difficult to see any utility in this instance other than a simple reduction in the non-parole period. Mere reduction in the period of the sentence to be served in custody is not a proper basis for a finding of special circumstances.
Whilst in addressing earlier grounds of his appeal, the applicant has pointed to the challenges he faces in custody, including in relation to his health and his concerns for his safety, he has not demonstrated that the sentencing judge erred in exercising his discretion to decline to make a finding of special circumstances.
Leave to advance this ground should not be granted.

Hoskins v R

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Cited By (28)