R v Hamilton

Offender's Subjective Case

I turn then to the offender's subjective case. The offender is not yet 20 but he will be in a few days' time. He was still only 18 at the time of the offences, he is therefore a young adult offender and the principles associated with sentencing a young adult offender still have application here. That is despite the fact he had reached his age of majority and his considerable prior association with the criminal justice system which I will discuss shortly. The principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of relevant principles in Bullock v The Queen [2016] NSWCCA 131 referring to BP v The Queen [2010] NSWCCA 159.
I mentioned a moment ago that the offender has had a considerable prior association with the criminal justice system. In October 2015 he was sentenced by my sister judge, Judge Yehia, in relation to offences of threaten to use offensive weapon with intent, two counts of common assault, intimidation, destroy property and two counts of aggravated break, enter and steal. I have been provided with her Honour's remarks on sentence; with great respect to her Honour they are a comprehensive set of remarks. The offender was a juvenile when sentenced by her Honour; her Honour imposed a total aggregate sentence of two years and nine months with a non‑parole period of nine months. He was directed to be released to supervised parole on 19 February 2016. The current offences occurred while on parole for aggravated break and enter offences which is clearly an aggravating factor. Her Honour noted that the offender was on parole when he committed the aggravated break and enter offence that she was to sentence him for. He has many offences on his juvenile record dating back to when he was only 12 years of age. He has received custodial sentences within the Juvenile Justice system. When he was sentenced by her Honour it was the first time he was dealt with in the District Court. Given his young age, I do not find that his criminal record is an aggravating factor but it disentitles him to any significant leniency here.
There was tendered on behalf of the offender a report dated 20 February 2018 by Anne Lucas, a forensic psychologist. Ms Lucas's report is based on a two-hour interview conducted with the offender on 12 February 2018 at the Wellington Correctional Facility. The report contains the following background concerning the offender:
The offender is an Aboriginal man born in Dubbo and is currently 19 years of age. His family comprises his mother, two sisters and two brothers. His father was an infrequent visitor to the home. The offender told Ms Lucas that both his mother and father had been heroin users. The offender said that severe family violence took place in the family home and the psychologist's report said it appeared children in the offender's family were subject to neglect as a result of parental substance abuse.
The offender said that he lived with his mother until aged nine when one evening while staying in a refuge with his siblings his mother failed to return. The children were then taken into care and raised in the care of the State. The children were mostly separated whilst in care but occasionally the offender resided in foster homes with one of his brothers. The offender reported living with strangers from nine to 18 years of age when he was not in juvenile detention. The offender estimates that he only spent three months at a time outside of detention during his mid teenage years. The offender described some difficult foster placements where he was subjected to neglect and psychological cruelty. During one placement the offender and his brother were expected to eat from the rubbish bin. At around 13 years of age the offender said that he began running away from foster homes "trying to find his way home to Dubbo and his grandmother". It is at this time the offender reports that he fell in with a bad crowd and started committing break and enters.
Prior to his incarceration the offender has lived in a variety of locations and sometimes on the street supporting himself through crime. The offender described some of his time in juvenile detention as being settled and that he enjoyed the stability and routine, however he also reported becoming distressed and self-harming. The offender told Ms Lucas that he established associations with other anti-social youth in detention which he continued upon his return to the community.
The offender reported that he attended multiple primary schools depending on his foster home placements. He told Ms Lucas that he had been suspended frequently and that he acted out to impress others and in order to be accepted. His high school education has been completed mostly in juvenile detention. The offender described having difficulty with everyday reading and writing and his numeracy skills are restricted. He has never held down formal employment but expressed an interest in one day training to be an automotive mechanic.
Ms Lucas administered the Wechsler Abbreviated Scale of Intelligence to assess the offender's overall intellectual functioning. The offender scored in the low average to average range on the composite full score IQ estimate. He scored in the average range for verbal comprehension and low average to average range for perceptual reasoning. The testing did not indicate that the offender has an intellectual deficit or disability.
The offender told the report writer that he commenced using cannabis around the age of 13. From 11 he started binge-drinking infrequently. He was introduced to ice in his mid-teens and has always used the drug intravenously. He realises that taking ice makes him impulsive. The offender has participated in drug and alcohol counselling at least seven times but only as a juvenile. He noted that previous programs have not been a good fit for him and is rarely offered support after discharge. Ms Lucas reports that the offender expresses interest in being involved in a drug rehabilitation program which has an indigenous focus. He believes that support after discharge will make a difference to his ability to remain drug-free when back in the community. Ms Lucas says the information supplied by the offender indicates that his drug-use is likely driven by an attempt to address the emotional distress he experienced as a result of his childhood.
In terms of his psychiatric history, the offender reported that he had been diagnosed with depression during his most recent incarceration and is currently being treated with Avanza following a suicide attempt in the last two months while in custody. He has experienced symptoms of depression for as long as he can remember and provided a history of self-harming or "cutting". The offender told Ms Lucas that anxiety has been a significant problem for him for as long as he can remember and symptoms included panic attacks, avoidance, self-consciousness, difficulty thinking clearly and solving problems without second-guessing himself. He reported that smoking cannabis lessened his anxiety as did using amphetamines.
The report writer notes that the offender suffers pervasive thoughts of worthlessness and personal failure and his symptoms include sadness, hopelessness, loss of interest in engaging in activities and a loss of ability to derive pleasure. In regards to his anxiety Ms Lucas reports that relatively mild stresses may be sufficient enough to precipitate major life crises for the offender. He described high levels of suspiciousness and mistrust in his relations with others. The offender told Ms Lucas that his past criminal behaviour is undertaken in an attempt to finance his drug use and supply himself with basic needs such as food.
In relation to his offending on this occasion he advised Ms Lucas that he committed the offences in an attempt to obtain money for drugs. He told Ms Lucas he knew he was doing the wrong thing but was drug affected at the time. He said "When I'm on ice, I turn into a different person, not a good person".
The offender intends for things to be different when he is eventually released from custody on this occasion. He is "Sick of letting his family down" and "Sick of living the life" he has up until this point. Ms Lucas reports that treatment of his mental health issues, stable accommodation, employment and avoidance, his antisocial associates and substance abuse are important factors in the offender's rehabilitation. Without attention to these factors Ms Lucas says that his risk of reoffending would be considered moderately high, assessed by factors identified within the level of service inventory.
Ms Lucas reports that on the basis of information provided during the interview it appears the offender suffers from a persistent depressive disorder with prominent anxiety. He also displays characteristics associated with Cluster B personality disorder. In her opinion early disruption in the offender's attachments and exposure to the harmful effects of parental substance abuse and violence have had notable effects on his mental health and interpersonal functioning. Ms Lucas notes that this is the offender's first time in an adult prison and he has indicated that he is struggling emotionally. She suggests regular monitoring of his mental health status. Whilst the intellectual screening Ms Lucas conducted did not indicate that the offender has an intellectual disability it is suggested that this literacy and numeracy assistance would improve his functional capacity, employability and self-esteem.
In terms of the offender's background I note the following from Yehia DCJ's remarks which I consider appropriate to have regard to in this sentence. Her Honour found that the offender is a young person who: "Had a history of being exposed to domestic violence and alcohol abuse in his formative years until his father was incarcerated in about 2006. Since being in the care of Family and Community Services he has had over 20 placements. While many of those placements were with family members the constant disruption of his home life and the absence of continuity in his parental supervision and care matters relevant to his development".
I adopt her Honour's distillation of the Bugmy and Fernando principles. Her Honour said: "Because of the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending it is right to speak of giving full weight to an offender's deprived background in every sentencing exercise".
I also adopt what her Honour said at p 13 of her Honour's remarks: "I am satisfied that the young person's background and history of disadvantage reduces his moral culpability. I am also satisfied that his deprived background over the years to violence and alcohol abuse is relevant to his capacity to mature and his capacity to appreciate the wrongfulness of consequences of his behaviour".
I have already referred to the fact that the offender gave evidence and confirmed the details of his background as described in both the pre-sentence report and the psychological report. I noted earlier the evidence he gave as to his involvement in the offences. The evidence he gave in relation to the aggravated break enter and steal offence might be thought to be contrary to his interest as he took full responsibility for the offence and admitted to, in effect, recruiting some juvenile offenders. Although there was nothing in his custodial history suggesting that he has used drugs while in custody on this occasion he frankly admitted in the witness box that he had used buprenorphine whilst in custody. Again that was the evidence he gave concerning what might be thought to be against his interest, yet when in the witness box he was clearly determined to tell me the truth. Overall his evidence seemed very genuine to me and he was an impressive witness. I note that when he gave evidence before Yehia DCJ back in 2015 she too found that he was an impressive witness. I have no doubt that his expressions of remorse, in the witness box, are genuine. I also have no doubt that he wants to give up his drug use and to live a law abiding life in the community. The question is can he do that even with considerable support.
It is unfortunate that I was not provided with any reports as to how the offender performed when initially released on the parole as set by Yehia DCJ. The offender's own evidence, however, suggests that he failed to engage with the drug rehabilitation which was a condition of his parole. Given his record and the fact that when he committed the offences he was sentenced by Yehia DCJ, he was on parole for aggravated break and enter offences when he committed the offences I am to sentence him for, his prospects of rehabilitation can be no more than guarded bordering on poor. I am reluctant to find that such a young person has poor prospects of rehabilitation. I note her Honour considered the prospects of rehabilitation were guarded when she sentenced him as a juvenile.
There is evidence before me that the offender has an evasive depressive disorder and has during his current period in custody attempted suicide. He is now taking Avanza for his condition. I do not think the evidence here supports a finding that his mental health is the cause of his offending and reduces his moral culpability. I do consider though that it means he has and will find his time in custody more arduous than those offenders who do not suffer from similar conditions.
In general terms the fact that an offence is committed while under the influence of a prohibited drug or drug addiction is not a mitigating factor. However, where an offender is young and has turned to drug use due to disturbing events that if occurred in their young life, in a short life, it can be appropriate to give greater weight to the rehabilitative objective of sentencing. That is an appropriate approach to take here when all the evidence is considered. See the discussion by Simpson J as her Honour then was in R v Henry (1999) 46 NSWLR 346 and more recently by Wilson J in Hayek v R [2016] NSWCCA 126.
As I observed earlier he pleaded guilty in the Local Court and I will allow a twenty-five per cent discount in his sentences for the utilitarian value of his pleas. For the reasons I gave earlier I consider that his expressions of remorse are genuine and thoughtful. Clearly there should be a finding of special circumstances given his age and the fact this will be his first time serving a sentence as an adult. He will need considerable assistance in the community when released to ensure that he does not relapse into illicit drug use and further offending. I consider that he will be assisted in his rehabilitation by having a longer period on parole than that provided by the statutory ratio. He has been in custody since 9 January 2017. He served the balance of parole until 19 February 2018. Having regard to the principles of totality and the fact that but for the commission of the current offences he may have been released to parole I propose to commence his sentence from 9 April 2017. Given the three offences occurred in two separate incidents there should be some accumulation of the sentences.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act and have determined that the only appropriate sentence is one of imprisonment. The maximum penalties and in relation to the aggravated break and enter offence and the standard non-parole period have been taken into account as the legislative guidepost. I will impose an aggregate sentence, I will firstly record the indicative sentences and in relation to the aggravated break and enter offence an indicative non-parole period.

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