Michael Thomas HAWKINS v REGINA

Relevant background matters 37 The judgment of Hidden J conveniently refers to the material facts and, accordingly, I will seek in this judgment to confine my reference to particular matters which are to be read in conjunction with those referred to by Hidden J. 38 The applicant was born on 27 February 1958 and was accordingly aged between 44 and 45 years at the time of the commission of the relevant offences. He was 46 years of age at the date of sentence on 3 June 2004. 39 He has a minor criminal record and at the age of 46 was sentenced by the District Court in relation to the charges referred to in the tables below to a term of imprisonment in custody for the first time. His early history and background is conveniently summarised in the judgment of Hidden J. The sentencing judge characterised his subjective case as "indeed powerful". 40 The subjective considerations have been set out in paragraphs [17] to [23] in the written submissions of Mr Smith, of counsel.

The offences 41 The applicant pleaded guilty in all to six offences and 14 offences were taken into account on a Form 1. The Form 1 matters were taken into account on the fourth committal charge (aggravated break, enter and steal). The 14 matters in that respect related to the use of false instruments. They were committed between 20 December 2002 and 6 January 2003. 42 In relation to the abovementioned charge of aggravated break, enter and steal, taking into account the Form 1 matters, the applicant was sentenced to imprisonment for eight years with a non-parole period of four years and six months. As Hidden J has observed, the submissions on behalf of the applicant were primarily directed to the sentence in relation to the fourth committal charge, aggravated break, enter and steal offence committed at Ms. Harvey's unit. 43 The applicant, on 20 April 2005, filed grounds of appeal dated 19 April 2005 in respect of the sentence imposed upon him in the District Court of New South Wales (His Honour Judge Solomon) on 3 June 2004. 44 A total of six sentences were imposed and the abovementioned 14 offences were taken into account on the Form 1. All offences, but one, were committed in the period 1 November 2002 to 6 January 2003. The offence committed on 12 August 2003 was in breach of bail for the earlier offences. 45 On 23 May 2003, the applicant pleaded guilty before a magistrate at the Downing Centre Local Court to two offences of stealing property in a dwelling house, one offence of aggravated break, enter and steal, one offence of make false instrument and one offence of use a false instrument. 46 It is convenient to set out relevant particulars concerning the six offences referred to above.

Five offences committed in the period 1 November 2002 to 6 January 2003 Offence Offence date Maximum penalty Sentence Commencement Imposed of sentence 1. Steal 1 November 2002 to Seven years dwelling 4 December 2002 Crimes Act 1900 (NSW) - s.148 Three years 20 August 2003 house 2. Make false instrument 16 December 2002 10 years Two years 20 August 2003 Crimes Act 1900 (NSW) - s.300 3. Use false instrument 16 December 2002 10 years Two years 20 August 2003 Crimes Act 1900 (NSW) - s.300 4. Aggravated break, enter and steal 6 January 2003 20 years Non-parole period of four years and six months. Parole period of three years and six months 20 August 2003 Crimes Act 1900 (NSW) - s.112(2), s.105A(1)(f) 5. Steal dwelling house 23 December 2002 Seven years Two years 20 August 2003 Crimes Act 1900 (NSW) - s.148

Sixth offence committed on 12 August 2003 Offence Offence date Maximum penalty Sentence imposed Commencement of sentence Break, enter and steal and commit actual bodily harm 12 August 2003 20 years Non-parole period of two years and six months. Parole period of two years and six months 20 February 2008 Crimes Act 1900 (NSW) - ss.112(2), 105A(1)(d)

47 The effective sentence imposed upon the applicant was, accordingly, a non-parole period of seven years to date from 20 August 2003 with a parole period of two and a half years to expire on 19 December 2013. 48 It can be seen that all the sentences for the charge sheet matters (1 to 3) were concurrent and the sentence for charge 4 wholly subsumed the other offences for those charge sheet matters. 49 The sentence for the offence on the indictment was made wholly cumulative on the non-parole period for the fourth offence (aggravated break, enter and steal).

Factual matters 50 The applicant worked as an aged carer at the Peninsula Gardens Retirement Village in 2002. He had, in the past, had difficulties with heroin addiction and it is said that during the period he worked at the retirement village he relapsed into heroin use. 51 The applicant stole money and cheques from elderly residents at the retirement village and broke into two victims' homes. 52 On the second occasion, he was on bail for an earlier offence and on that occasion he maliciously inflicted actual bodily harm on a 90 year old man (the offence on indictment). 53 On 15 May 2003, the applicant pleaded guilty in the Local Court to one count of aggravated break, enter and steal, knowing that a person was in the premises being broken into, two counts of steal property in dwelling house involving two victims on separate dates, and one count each of making and using a false instrument involving the presentation of a cheque stolen from one of the victims. He requested that seven counts, each of making and using false instruments (being cheques stolen from victims) be taken into account. 54 On 23 January 2004, the applicant pleaded guilty to an offence of aggravated break, enter and steal in respect of the offence committed on 12 August 2003 whilst he was on bail, the aggravating feature in relation to that offence being the malicious infliction of actual bodily harm on the 90 year old male person already referred to.

Consideration 55 Counsel for the applicant accepted that the offences both alone and in combination were most serious. Each of the offences, it was also acknowledged, were committed in breach of trust and upon elderly victims and that those two factors constituted significant aggravating circumstances. 56 The first ground to the application was accepted by the Crown as valid. That ground identifies error in treating the earlier offences (the committal offences) as aggravated by their having involved multiple victims: see s21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge in that respect noted that the offences involved two victims. In relation to the first ground, see Regina v Tadrosse [2005] NSWCCA 145 at [28] and [29]. 57 Whilst error in this respect has been identified, the central question is its effect having regard, in particular, to the structure of the sentences imposed including the matter of accumulation. This includes, as the Crown submissions observe, the fact that the sentences for all the charge sheet matters were to run concurrently. 58 The sentence for Count 4, as earlier noted, wholly subsumes the sentences for the other charge sheet matters, a matter of some significance. Recognition also must be given to the fact that there were two victims in respect of the charge sheet matters (Ms Harvey and Ms Miller) and, as the Crown has pointed out, Ms Harvey was a victim at different points in time: the initial theft of her cheques (charge 1), the making and using of a false instrument (charges 2 and 3) and the later aggravated break, enter and steal at night in her unit (charge 4). 59 The Crown also correctly observed that the matters on the Form 1, taken into account in relation to count 4, involved an amount over $5,000 in cashed cheques and the sentencing judge was required to bring those matters into account with a view to increasing the sentence on that charge: Attorney-General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 137 A Crim R 180 at [42] per Spigelman CJ. These matters, as the Crown also correctly observed, involved very significant breaches of trust and enrichment by the applicant. 60 On any view of the facts, some degree of accumulation was required for charge 4 on the sentences for charges 1, 2 and 3. 61 Taking into account all of these circumstances, the question becomes, whether notwithstanding the identified error in terms of s21A of the Crimes (Sentencing Procedure) Act 1999, a lesser sentence than that imposed is warranted in law. 62 As Hidden J has observed, the sentence imposed in respect of the indictment offence, the aggravated break, enter and steal offence committed at the home of Mr. Wauchope (five years with a non-parole period of two years and six months) is by no means excessive, having regard to the gravity of that offence including that it was committed whilst the applicant was on bail in respect of the earlier offences. The only challenge made by the applicant in this respect was the fact that it was wholly accumulated upon the non-parole period set in respect of the fourth committal charge. 63 Whilst giving full weight to the subjective circumstances and the favourable prospects of rehabilitation, I am unable to accept that the sentence is manifestly excessive. The criminality involved in the offences, including, in particular, the fourth offence and the sixth offence, involved multiple and grave breaches of trust involving very elderly and therefore very vulnerable persons who are entitled to the security and the protection which the law intends should be afforded to them. In addition, the offences may be regarded as having been planned offences and, in this respect, with respect, I adopt the observation made by Sully J in his judgment at [11], that the particular assessments made and therein referred to suggest that the applicant undertook the offences in appreciation of what he was doing and that what he was doing was wrong. 64 In relation to the question of accumulation, I, with respect, also concur with the observations made by Sully J in his judgment at [9]. 65 I have accordingly concluded that no lesser sentence was warranted in law: s6(3) of the Criminal Appeal Act 1912. 66 Finally, in relation to the second ground which contends that the sentencing judge failed to give sufficient effect to the finding of special circumstances in the overall sentence, I accept the submission made by the Crown in its written submissions at [34] that the mere fact that a non-parole period is close to 75% of the head sentence does not necessarily result in appealable error. It remains, on a case by case basis, a question of considering whether the structure of the sentences where there are multiple offences involved fails to carry out the intention of the sentencing judge and whether the non-parole period or effective non-parole period is sufficient to reflect the objective gravity of the offending. Furthermore I accept the submission that it is an important factor in this respect to consider the length of the parole period or effective parole period in each case and whether that is sufficient to give effect to the applicant's rehabilitation. I consider that it does. 67 Whilst the applicant has submitted that the effective non-parole period is 73.63% of the overall sentence, I do not consider what is described as the "minimal variation of the statutory ratio" is inconsistent with the sentencing judge's reference to the applicant requiring ongoing rehabilitation into the community upon his release against the background of the overall structure and effect of the sentences imposed. I, accordingly, would dismiss this ground of appeal. 68 I accordingly agree, as proposed by Sully J, that the appropriate orders on this application are to grant leave to the applicant to appeal against sentence but to dismiss the appeal.

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