R v Hill

Facts for sentence

1. There were seven offences committed on the night or morning of the 20 and 21 April 2020: 1. An attempt was made to break into a hairdressing solon. The door frame was damaged. The offender was seen on CCTV: Sequence 1. 2. Another attempt was made to enter a nearby cafe. The metal door frame was damaged. Again the offender was seen on CCTV: Sequence 2 on Form 1. 3. The front door of a nearby restaurant was forced and Hill took 3 bottles of wine and $100 was taken from a safe he had ripped from a wall: Sequence 3. 4. Another cafe had its front door forced open and damaged. The offender damaged a microwave oven and a cash register as he rummaged through the property. About $200 was taken from the staff tip jar: Sequence 4 on Form 1. 5. Hill made another unsuccessful attempt to break into another hairdressing salon. Its door was damaged and cost $350 to repair: Sequence 5 - Form 1. 6. Hill made an unsuccessful attempt to break into another cafe. Its heritage style door was damaged and cost $1000 to repair: Sequence 6 - Form 1. 7. Yet another cafe was broken into and rummaged through. Food, alcohol confectionary and a cash tin containing about $1,000 were taken: Sequence 7.
2. There were two offences committed on the night or morning of the 12 and 13 May 2020. 1. Hill attempted to force the door of a restaurant causing damage to the front door and its lock: Sequence 8 - Form 1. 2. Hill forced the door of a clothing store. He then forced open the cash register. He took some cash and caused damage to a number of items in the store. It took some weeks before he door could be repaired. Fixing the damage cost not only time but about $6,500: Sequence 10.
3. There were two offences committed on the night or morning of the 4 and 5 June 2020. 1. An attempt was made to enter a clothing store. Hill damaged the lock. He was captured on CCTV: Sequence 11 - Form 1. 2. A Spa was broken into. Hill rummaged through the premises taking some tablet computers and other property valued at about $1,900: Sequence 12.
4. There was one offence committed on the night or morning of the 6 and 7 June 2020. Another hairdresser had its front door forced open. A fire extinguisher was activated. The property was rummaged through and some property taken including $100, and $80 in a charity tin: Sequence 13.

Objective seriousness

1. The degree of criminality of break and enter offences is not underrated by sentencing judges: R v Hayes (1984) 1 NSWLR 740 at 742. General deterrence is a particularly important sentencing consideration for break and enter offences. Courts are required "to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely:" R v Maher [2004] NSWCCA 177 at [44]; R v Scott [1999] NSWCCA 434
2. Break and enter is not just a crime against property, it is a crime against people. When shops are broken into and valuables taken it can have a terrible impact on a business and those who own and or run it. When property is damaged in doing so it can have a terrible impact on businesses and those who own and or run it.
3. The owners of the businesses here worked hard for what they had. Offences such as this have an immediate effect on them. Even if property is replaceable; replacement generally causes considerable inconvenience. Not all property is insured but where it is, it is a notorious fact that business owners face huge premiums, as well as the expense of making their businesses secure. Crimes such as these make owners and workers feel less safe and less confident in the services they provide the community. Offences such as this make us all feel less safe.
4. If crimes like this are not appropriately punished people lose confidence in public institutions. They can feel that the police and Courts cannot protect them. They can learn to fear others and lose trust in others. Where people are fearful, the entire community suffers. As one victim from another matter (coincidently also Kiama) told the Illawarra Mercury: "You work your bum off and someone just comes in, and do and take what they want,… it teaches you not to be so trusting."
5. Care is required here. There is a Court of Criminal Appeal Guideline judgment that must be considered: Ponfield v R [1999] NSWCCA 435; 48 NSWLR 327; s42A Crimes (Sentencing Procedure) Act 1999. As Mr Anderson, counsel for Hill, noted one guide to assessing the relative seriousness of the offences now before me is the absence of the aggravating features, some of which were set out in Ponfield, at [48]. Without attempting to trivialise the seriousness of the offending he pointed to the absence of any evidence indicating the harm suffered was "dire" or "substantial" as the prosecution originally submitted. The absence of an aggravating feature does not mitigate a crime but as the guideline points out s112 Crimes Act breaking and entering and committing a felony offences apply to the full range of felonies. This renders the maximum penalty less useful as an indicator for sentencing, particularly where the felony involved is not one of the more serious felonies. While the victims here might disagree, particularly given they must have suffered during the pandemic, none of the matters here involved the more serious felonies, and the amount of property taken was relatively modest.

Other relevant factors

1. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalties prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individual victims and the community.
2. The sentence must take into account that each was committed while on parole, and in breach of an implicit promise to be of good behaviour. The earlier sentence also included punishment for break and enter offences. The offender's criminal history is relevant to determining the proper sentence. It indicates that this offending is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
3. Two matters have a Form 1 attached. The matters on the Form 1 here do operate to increase the sentence that would otherwise be appropriate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No 1 [2002] 56 NSWLR 146 at [39] - [42]. Sometimes, as here, that increase can be substantial: Attorney General's Application No. 1 at [18]; Grube v R [2005] NSWCCA 140.
4. There are multiple offences for sentence. As there will be an aggregate sentence I must indicate a sentence for each. I must also ensure that the reduction for the guilty plea is not eroded by the process of accumulation
5. Each count involved discrete criminal acts. However the purposes of sentencing apply to each and those purposes overlap. The sentences should be partly cumulative and the aggregation of all of the sentences must be a "just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26; Cahyadi v Regina [2007] NSWCCA 1.
6. The severity of the combined sentences should not operate to destroy prospects of rehabilitation and reform. Further it is recognised that the severity of a sentence increases at a greater rate than any increase in the length of the sentence: R v M.A.K. & R v M.S.K. [2006] NSWCCA 381. That said public confidence in the administration of justice requires the Court avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112].
7. The minimum period for which the offender should be imprisoned must properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. It is common ground however that here are a number of factors here that justify a finding of special circumstances allowing for a long period of parole supervision.
8. Hill is now serving balance of parole until 24 October 2021. His parole review date is 3 August 2021. He must suffer some consequences for his breach. His sentence must commence today or at some earlier date going back to when he came into custody. In fixing an appropriate start date I must take care not to double punish him by taking account both his breach of parole in aggravation of sentence and misapplication of the totality principle noted above.
9. The present COVID-19 pandemic has increased apprehension by prisoners about infections in gaols as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Personal visits were suspended for over a year reducing any capacity to remain in direct contact with pro-social friends and family, such as those who provided references to the court. They had just resumed, only to be suspended again. Access to telephone calls and AVL links has increased but here for reasons that are not clear, Hill has not been able to have video visits with his mother who is ill and in care.
10. CV-19 has not entered our gaols. If it does Hill falls into a category that might be considered for early parole: s276 Crimes (Administration of Sentences) Act 1999. The offender has endured over a year of COVID restrictions. He faces them now. He may face them again. The lack of personal visits, and that heightened anxiety and concern, are relevant factors that must be synthesised along with all other matters.

The case for the offender

1. I have the benefit of reports from two forensic psychologists Ms Duffy (20 August 2018) and Ms Grujoska (19 April 2021). The offender's partner and two friends wrote references on his behalf. Hill also wrote a letter to me.
2. While a Judge is entitled to be sceptical of opinions unsupported by any factual detail there is no reason here to doubt the professional opinions of the psychologist, they appear well founded: Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209, at [9] and [10]. The reports did not uncritically parrot claims by an offender who does not give evidence. Nor were any expressions of good intentions, by him reported without proper evaluation in a professional context; unlike that described Basten JA in R v JDX; JDX v R [2017] NSWCCA 9.
3. The offender's letter however did make such claims and they were not well founded. He tells me that what he did was "brainless and reckless" and a product of his drug abuse and concerns about his precarious financial position and that of his partner. He says he wants to move forward and promises to take advantage of engaging in programs if I allow a long non-parole period. He says he wants to spend time with his partner, kids and his mother who is ill and in care. Sadly, what he sets out in his letter must be viewed with scepticism. He has made such promises before. He has broken them time and time again. He now promises as he promised me in 2018 and Judge Conlon in 2013 that this time it's for sure.
4. Hill was born in 1980. I accept he had a difficult relationship with his father and suffered ADHD. Hill says he suffered sexual and physical abuse when he was young. He gave his psychologist examples of other traumatic experiences involving grief and loss. Mr Anderson submitted that this background reduced Hill's moral culpability. He relied on Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. No other evidence was presented to support these contentions but I will take full account of Hill's childhood problems which I am sure left their mark. However, with respect, there is no evidence of profound deprivation of the type presented in Bugmy. Hill took drugs. He may well have done so as a "maladaptive coping mechanism" as his psychologist suggests. He fell in with an outlaw motorcycle club. He still suffers some ill effects from those associations as he has voluntarily sought a form of protective custody (SMAP). He went to gaol while young and immature. He never recovered. He has had few opportunities to work or live a productive life the community. He never had a real opportunity to live a normal life in the community.
5. Hill has had, for many years, symptoms consistent with major depression and anxiety and Post Traumatic Stress Disorder. Drug taking is now well entrenched as a "maladaptive coping strategy" for those conditions. He will need psychiatric help and he must engage with a drug rehabilitation programme on release; preferably a residential programme such as that recommended by Ms Grujoska. He will need to engage in EQUIPS and RUSH programmes in custody. He must be supervised and monitored by Community Corrections on release for as long as possible and practicable. None of this is controversial.
6. Similarly, it is not controversial that he has been effectively institutionalised. Hill first went to gaol in August 2001. Since then he has spent about 15 of the last 20 years in custody. Apart from three periods in 2005-2006, 2007-2009 and 2010-2011 the longest time spent out of gaol has been 5 months! He must serve more gaol time, further entrenching his dependence on gaol and further distancing him from any prospect of a normal life in our community.
7. When Hill was released to parole in February 2020 he reported, as directed to Community Corrections on a weekly basis. He had three meetings with the Violent Offender Therapeutic Program on 8 April 2021, 4 May 2021 and 19 June 2021. He had two intake sessions with the Illawarra Drug and Alcohol Service on 12 May 2020 and 23 June 2021. His offending occurred on 21 April 20201, 13 May 2021, 5 June 2021 and 8 June 2021.
8. Those dates indicate that during his short time in the community he was living a lie. He was not taking the help offered. He was not engaged with a rehabilitation process. He was not unduly concerned about his ill mother, his friends or his partner; rather he went back to drug use and crime very soon after his release. Now, I have enough experience to realise that his psychological problems, his long term drug addiction and his institutionalisation all contributed to this situation. Drug taking and crime are his default positions. Further, to date, punishment and has achieved little other than Hill's removal from the community so that he cannot commit crimes. He must be released. I cannot gaol him for longer than the objective circumstances of his offending demand but if the cycle is not broken he will re-offend against the community again.

Submissions

1. Mr Anderson took me carefully through the through Ponfield guideline. He drew my attention to the offender's background and Hill's demonstrated incapacity to learn from experience. He urged me not to give up on Hill but give him one more chance to join our community. He noted Ms Duffy's opinion from 2018 that Hill needed intensive support while in custody and particularly on release. He submitted that what help was provided was less than optimum, given Hill's demonstrated incapacity to cope with normal community life.
2. He pointed to evidence that Hill is now on the buprenorphine program, he has a job and has expressed both remorse and a resolve not to re-offend. He appears highly motivated and asked that that resolve not be undermined or discouraged by too long a non-parole period.
3. Mr McGonigal, for the Director of Public Prosecutions, spoke to Ms Azad's written submissions. The prosecution acknowledge Hill's longstanding drug abuse problems, his mental conditions and the insight into his offending now shown. They accept that hope for his rehabilitation should not be abandoned but stressed that; adequate punishment was required for a large number of offences and the combined impact of them on their victims also be acknowledged.

Synthesis

1. There must be adequate recognition of the harm done to so many in the Kiama business community by Hill's crimes. He is not a good prospect for rehabilitation but the attempt should not be abandoned. While in gaol he recognises there are people who love and respect him and that in gaol he cannot reciprocate that love. He has while in gaol shown appropriate remorse
2. It is in his interests, but more importantly the community interest, that he be given every opportunity while in custody and on release to deal with his long standing drug abuse and other mental health problems. While it will be for the State Parole Board to determine it seems essential that there be some transition to normal community life via a residential drug rehabilitation programme. Significant intervention is required. If it is not forthcoming he will fail. He cannot do it alone. If left to his own devices with only weekly parole meetings, despite his professed intentions, I can have no confidence Hill will not use drugs on release to cope with his many underlying personal and psychological problems. And if he uses drugs he will, regardless of any promises he has made, offend against the community again.

Orders

1. In relation to each matter for sentence you are convicted. I indicate the following sentences:- 1. Sequence 1 Attempted Break & Enter: 9 months 2. Sequence 3 Break & Enter and steal, taking into account the matters on the Form 1: 3 years 3. Sequence 7 Break & Enter and steal: 2 years 4. Sequence 10 Break & Enter and steal: 2 years 5. Sequence 12 Break & Enter and steal, taking into account the matters on the Form 1: 2 years 7 months 6. Sequence 13 Break & Enter and steal: 1 year 10 months
2. There will be an aggregate sentence of 6 years imprisonment. It will commence on 29 October 2020. There will be a non-parole period of 3 years and 6 months. A parole period of 2 years and 6 months will commence on 29 April 2024 and expire on 28 October 2026. Total sentence 6 years; eligible for consideration for release to a parole on 28 April 2024.

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: 22 July 2021