R v David Hanna

The Sentence Hearing 14The Crown tendered a bundle on sentence hearing (exhibit A) which included a Certificate pursuant to s 166 of the Criminal Procedure Act 1986. It certified that the offender had been charged with a related offence as follows: (1)Sequence 3 - Dishonestly obtain financial advantage, the particulars of which were tendering a stolen debit card as payment for goods to obtain a financial advantage, namely, $79.92. 15The Crown bundle included the offender's lengthy criminal record. It contained from 2002 numerous traffic offences, offences for possession of prohibited drugs, drive whilst disqualified, take/detain person in company with intent to obtain advantage, demand property in company with menaces, possess unauthorised firearm offences, together with possess ammunition offences, manufacture prohibited drugs, possess prohibited weapon, custody of a knife in a public place, and goods suspected of being stolen. In respect of those offences he had been fined on numerous occasions, given the benefit of a s 9 Bond and periodic detention, disqualified from driving on a number of occasions and sentenced to a number of terms of imprisonment since 2005, together with suspended sentences pursuant to s 12. 16The Crown relied on a Victim Impact Statement of Jeremy Henley in respect of the impact on him of the offending. 17The offender relied on a report of Anna Robilliard dated 11 November 2014 (exhibit 1). Ms Robilliard is a psychologist who interviewed the offender on 7 November 2014. She took a family background history from the offender who was brought up in a stable family environment. He completed the Higher School Certificate and thereafter attended TAFE to complete a business certificate. He worked as a salesman and also in his father's workshop. He was born on 6 October 1974 and had spent the years from age 30 to 35 in custody. He then met his partner, Celeste Giles, and they have a son aged three and a half. He commenced using illegal drugs at 26 years of age until he was imprisoned at age 30. Upon release he went straight back to using amphetamines which he used regularly until his arrest. He has not been using drugs in custody and reported that he was determined not to resume using drugs when he was ultimately released. 18The offender admitted to the author of the report that he had become angry and intimidating and demanded the victim's car. He said he felt stupid and angry at himself for "being an idiot" in carrying out the offending. 19Whilst in custody, the offender has expressed a willingness to commit to accept professional assistance for his substance abuse. Upon release from custody he intends to return to live with his parents initially, and then with his partner and child. The author of the report recommended a period of management and support by Community Offender Services. 20The offender also relied on testimonials from his partner, Celeste Giles, (exhibit 2) and the offender's younger sister, Rosemary Hanna (exhibit 3). Those references spoke of the emotional consequences to the offender's loved ones and family of his incarceration.

The Crown Submissions 21The Crown submitted that a full time custodial sentence was appropriate here. A substantial aggravating feature of the offending was that the offences were committed whilst the offender was on bail awaiting sentence in respect of three matters. Further, the offences in Count 1 and Count 3 of the Indictment were separate offences, both involving substantial criminality. The principle of totality in sentencing meant that some level of accumulation was required in sentencing in respect of the matters. 22With respect to the offender's subjective case, the Crown submitted that exhibit 1, being the report of Ms Robilliard, would give the Court little comfort. For example, in [8] of the report, the author stated that the offender maintained that having a child had changed his thinking towards criminal behaviour, however, on closer questioning, he agreed that his son was over 12 months old when he committed the subject offences. 23The Crown submitted that the offender had shown no substantial remorse or acceptance of responsibility. He was prepared to maintain untruths to both the psychologist and the Court. 24The Crown submitted that the offender had attempted to minimise his role to the psychologist. Whilst he had admitted to her that he had become angry and intimidating and had demanded the victim's car, he did not tell her that he had bashed the victim. 25The Crown acknowledged that the offender was entitled to some discount for past assistance given to the investigating authorities, based on an affidavit contained in an envelope handed to me at the sentence hearing. That affidavit spoke to the assistance provided by the offender to investigating police by the provision of reliable information which had led to a number of arrests. 26The Crown submitted that the statutory ratio would provide the offender with substantial time in the community under supervision to ensure his return to a productive place in society. The Crown further submitted that there was clearly planning here as confirmed in the evidence which the jury clearly accepted that the offender said to his co-offender when he arrived on the scene, "Haven't you done it yet?" A rational inference arose that they had discussed what they were about to do. Further, the offence involved real violence corroborated by the victim's impact statement and his evidence at trial that he "thought he was going to die". 27The Crown submitted that general deterrence must play a very significant role in respect of the violent offending. The punishment should, in the circumstances, reflect the seriousness of the offending. 28The Crown submitted that whilst the victim was not a vulnerable person as defined in the Crimes (Sentencing Procedure) Act 1998 ("C(SP)A"), he had a number of health issues, including ADD and ASD and was generally a vulnerable and naïve young man. He had been used by the co-offender under the guise of employment, but had not been paid and was bashed and then had his credit card and cash stolen. 29Finally, the Crown submitted that in respect of the offence on the s 166 Certificate, the Court would make a finding of guilt based on the evidence at trial and would impose a concurrent short-term sentence.

The Offender's Submissions 30It was submitted on behalf of the offender that there should be some level of accumulation on sentence because of the separate offences, however, they did occur simultaneously. The corporal violence involved in Count 3 was at a lower level by comparison to other cases. That level of violence was demonstrated in the photographs of the victim which were tendered at trial and clearly showed minor injuries. 31It was submitted that the Court would not accept the victim's description that he had been "flogged" by the offender. The jury had already rejected his evidence that he had a gun pointed at his head. It could therefore be inferred that the jury rejected the level of violence that he said was used on him. There was no medical evidence in the Crown case to back up his evidence about that violence. 32Counsel submitted in respect of Count 1 on the Indictment that the offending fell within the lower range of objective seriousness of offending for such offences. The Court would have regard to the circumstances in which the vehicle was taken when the offender and co-offender knew the victim, and the vehicle was only used to purchase baby food and other items. It was clear from the evidence that there was little planning involved and no evidence of substantial planning. That was reflected in the small amount of money taken. In respect of Count 3, it was submitted that the objective seriousness of the offending was again in the lower range. It was submitted that it was in fact simultaneous offending and therefore any sentence should be concurrent. 33Counsel referred to the subjective features of the offender having recourse to employment in his father's business on release from custody, together with family support, which meant that he had good prospects of rehabilitation. Exhibts 2 and 3 spoke to the hardship that his partner and family members had suffered since his incarceration, particularly his mother, who relied on him as a carer. 34It was submitted therefore he had a lot of responsibility once he was released from custody, more than most, because the people closest to him relied heavily on him. This submission was put by way of a submission that it amounted to some form of extra curial punishment which should be reflected in the sentencing process. 35In respect of the offence pursuant to s 95 of the Crimes Act the Court was referred to Sheather v R [2009] NSWCCA 173 where a non-parole period of 1 year and 4 months and a total sentence of 3 years imprisonment was reduced to a non-parole period of 12 months with a balance of term of 12 months. The Court was also referred to R v Black [2001] NSWCCA 41 where a head sentence of two and half years was imposed with a non-parole period of 16 months. 36It was submitted that there was little or no planning or preparation involved, and that the offender was entitled to a discount for both past and future assistance to the investigating authorities. Further, he was being held in protective custody and would continue to be in protective custody. 37In respect of the offence certified in the s 166 Certificate, the parties agreed that there should be a finding of guilty in respect of that offence and a short fixed concurrent term of imprisonment was the appropriate penalty.

Determination 38In respect of the offence in Count 1, for an offence pursuant to s 154C(2) of the Crimes Act 1900, I find, having regard to all of the circumstances of the offending, that the objective seriousness of the offence here fell below the mid-range of objective seriousness of offending for such an offence. However, it was still serious offending and just below the mid-range of objective seriousness. 39With respect to the offence in Count 3, pursuant to s 95(1) of the Crimes Act 1900, I find that the offending was within the lower range of offending for such of offence. The victim suffered physical injuries from which he had recovered within a period of two weeks. He was personally vulnerable by virtue of him having been previously been diagnosed with Autism Spectrum Disorder (ASD) which had amplified the psychological impact on his life of the violence perpetrated on him. 40I have also had regard to the victim's impact statement tendered by the Crown (exhibit A) and the impact that these offences have had on both the victim's physical and psychological state. I note that there is no medical evidence against which to assess the victim impact statement, however, it is clear from the manner in which the victim gave his evidence that the offences have had a substantial impact on him. I have therefore taken the victim's impact statement into account, but I make it clear that I have done so not to aggravate the offender's culpability. 41I have had regard to the maximum penalty in respect of Count 1 of 14 years imprisonment and the standard non-parole period of 5 years imprisonment, and the maximum penalty in respect of Count 3 in the Indictment of 20 years imprisonment. These are guide posts which I take into account in the sentencing process. 42I accept the Crown's submission that the offender was engaged in a joint criminal enterprise. I am satisfied beyond reasonable doubt on the evidence that the offender and his co-offender agreed to carry out that joint criminal enterprise and therefore that each is equally guilty of the crime, regardless of the part played by each in its commission - see R v Cotter [2003] NSWCCA 273 at [87]. It is therefore inappropriate to assess, with any degree of precision, the role played by the offender in the criminal enterprise - see R v Hoschke [2001] NSWCCA 317 at [18]. It is, however, relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced - see R v Sukkar [2011] NSWCCA 140 per Davies J at [36]. 43In respect of joint criminal enterprise, Latham J, (with whom Whealy JA and Harrison J agreed) said in KR v R [2012] NSWCCA 332 at [19]: "19 What emerges from the statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participants level of culpability stands to be assessed by reference to his/her particular conduct. 20 Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. 21 Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. 'The concurrence of will and physical and the concurrence of intent and physical act suffices to attract criminal liability': R v O'Connor (1980) 146 CLR 64 at [72], per Barwick CJ. 22 Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt (2004) NSWCCA 19; R v Henry & Ors (1999) 46 NSWLR 346." 44These principles were adopted by Bellew J (with whom Hoeben CJ at CL and Adams J agreed) in Manly v R [2014] NSWCCA 59 at [143]. 45Consistent with those principles, the culpability of the offender here, given his involvement in inflicting the violence upon the victim, was greater than that of his co-offender. 46Further, the offender here has a lengthy criminal record which has to be taken into account. 47In Veen v R No. 2 (1998) 164 CLR 465 at p 477 the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." 48It is clear from the offender's antecedent criminal history here that he falls within the latter category of case. 49The subjective features here, as outlined above and set out in exhibits 2 & 3, do not warrant a finding of extra curial hardship on behalf of this offender. The fact that he will be required to spend his time in protective custody is, however, a matter that should be taken into account in arriving at an appropriate sentence. I find that the fact that the offender was on bail awaiting sentence in respect of the three matters with which he was charged in July 2011, is an aggravating feature to be taken into account. A further aggravating factor is that I am satisfied beyond reasonable doubt there was a degree of planning involved, involving an agreement between the offender the his cooffender to carry out the offence. This is supported by the offender saying to the co-offender, "Haven't you done it yet? I'll do it". 50I do not find that special circumstances are made out pursuant to s 44(2) of the C(SP)A so as to warrant an alteration of the ratio of the usual non-parole period to the head sentence. 51I do, however, find that the offender is entitled to a discount on sentence for the assistance provided by him to the investigating authorities up until the date of his sentence hearing. I find that he is entitled to a further discount on penalty for the continuing assistance that he is providing the authorities. However, I note that that assistance has not extended to any undertaking by him to give evidence at any future trial. In the circumstances, the offender is entitled to a discount of 15% on sentence in respect of the past assistance provided and 10% on sentence in respect of any future assistance, a total of 25%.

Sentence 52Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 53I have had regard to the maximum penalty of 14 years imprisonment and the standard non-parole period of 5 years in respect of Count 1 and the maximum penalty of 20 years imprisonment in respect of Count 3. These are guide posts to be taken into account in the sentencing process. 54I also take into account that the offender is entitled to a discount of 25%, and I am mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v The Queen (1998) 194 CLR 610. 55With respect to the principle of totality, there is no general rule as to whether the sentences should be served concurrently or cumulatively, and I acknowledge that the issue is one of totality - see Cahadi v R (2007) 168 AcrimR 41. 56It is clear, as set out above, that the criminal antecedents of the offender disentitle him to any leniency on sentence. Rather, both general deterrence and specific deterrence have a role to play in the sentencing process here. As also set out above, the subjective features referred to do not amount to extra curial punishment, but I have taken into account that he will serve his custodial sentence in protective custody. 57In respect of Count 1, I intend to sentence you to a total term of 3 years imprisonment. Your non-parole period will be 2 years and 3 months imprisonment to commence on 1 October 2014 and to expire on 31 December 2016. You will be sentenced to a further period of 9 months imprisonment commencing on 1 January 2017 and expiring on 30 September 2017. 58In respect of Count 3, I intend to sentence you to a fixed term of imprisonment of 12 months from 12 December 2014 and expiring on 11 December 2015. 59In respect of the offence pursuant to the s 166 Certificate, being Sequence 5, I intend to sentence you to a fixed term of imprisonment of 3 months commencing on 12 December 2014 and expiring on 11 March 2015. That sentence will be served concurrently with the above sentences. 60Your parole eligibility date will be 31 December 2016.

Orders 61I make the following orders: (1)You are convicted of the offence in Count 1, that you, on 21 June 2013 at Prospect in the State of New South Wales, whilst in the company of each other, assaulted Jeremy Henley with intent to take a motor vehicle, namely, a Holden Commodore registration AFB 23V without the consent of the person in lawful possession of the motor vehicle, namely, Jeremy Henley, then took and drove the said motor vehicle. (2)I sentence you to a non-parole period of 2 years and 3 months commencing on 1 October 2014 and expiring on 31 December 2016. (3)I sentence you to a further period of imprisonment of 9 months commencing on 1 January 2017 and expiring on 30 September 2017. The total term of imprisonment for this offence is 3 years. (4)You are convicted of Count 3 on the Indictment, namely, that on 21 June 2013 at Prospect in the State of New South Wales you robbed Jeremy Henley of his property, namely, a sum of cash and key card, and immediately before the robbery, used corporal violence upon Jeremy Henley. (5)I sentence you to a fixed term of imprisonment of 12 months commencing on 12 December 2014 and expiring on 11 December 2015. This sentence is to be served concurrently with the above sentence. (6)In respect of the offence referred to in the Certificate under s 166 of the Criminal Procedure Act 1986, Sequence 5, I sentence you to a fixed term of imprisonment of 3 months commencing on 12 December 2014 and expiring on 11 March 2015, to be served concurrently with the above sentences. (7)You will be eligible to be released on parole on 31 December 2016. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2014