Mr Jamie Hitch is for sentence in relation to an offence of breaking and entering the house of Marie Mott and committing in that house a serious indictable offence, namely, intentionally damaging property in circumstances of aggravation in that he knew that there was a person or persons present inside the premises. The maximum penalty for that offence is 20 years' imprisonment and a standard non parole period of five years is prescribed. That maximum and the standard non parole period are, of course, important legislative guideposts to which I must have regard when determining the sentence.
The offender pleaded guilty to the charge in circumstances where his trial was listed to commence on 1 September 2020 and, at that stage, involving two charges. However, on that day it was indicated that a plea of guilty would be entered to an amended indictment the next day, and on that next day, 2 September 2020, the offender pleaded guilty to the current indictment containing one count. It is agreed that in those circumstances he is entitled to a discount of 5% by reason of the utilitarian value of his plea of guilty.
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FACTS
The offence occurred at a house in Erina Place, South Windsor, on 2 January 2019. The residents of that house were Ms Marie Mott and her two sons, Kevin Mitchell and Paul Mitchell. Paul Mitchell was also known as PJ.
At about 11.30am that day Kevin Mitchell was in the house when he heard a knock at the door. When he answered the door he saw a woman named Emily Heffernan who was a friend of Kevin's brother, PJ. At that time Emily was in a domestic relationship with the offender, Mr Hitch, and they had been living together in a converted garage on a property in Jamieson Road, Penrith.
On that morning of 2 January 2019 Ms Heffernan had been dropped at the house in Erina Place, South Windsor, by her mother after her mother picked her up from the address in Jamieson Road, Penrith, having received a call in which Ms Heffernan was distressed and crying after an argument with the offender. After being dropped at the house in South Windsor, Paul Mitchell, also known as PJ, came downstairs and spoke with Emily and took her into the house to wash up. She then fell asleep on a lounge until about 2.30pm. At about 3.30pm Emily and PJ left the house intending to travel to the home of PJ's sister in Penrith. At about 4.45pm Marie Mott arrived home to the house at Erina Place and she and her son, Kevin Mitchell, had dinner.
Shortly afterwards there was a knock at the door which Kevin answered. At the door was an unknown female who asked if PJ was home, and upon being told that he was not home the female asked, "Where is Emily?" Kevin then told the woman that Emily was with PJ and he did not know where they had gone. As this was happening the offender appeared and approached the front door. In his hand he was holding a black baton. When Kevin tried to shut the security screen door the offender ripped it from its hinges and yelled out, "Where's PJ? Where's Emily?" Although Kevin managed to close the front wooden door the offender smashed the glass panel in that door and then broke open the front door while continuing to yell, "Where's PJ? Where is Emily?" Although Kevin Mitchell replied, "He is not here, man," the offender nonetheless entered the foyer of the house. At that point Marie Mott, whose house it was, ran downstairs and yelled, "He is not here." The offender then used his baton to smash some glass on an entertainment unit near the front door. Ms Mott told him, "Stop smashing up my home. Go away and leave us alone please." The offender however went to the bottom of the stairs yelling, "Where's PJ? Where is he?" to which Ms Mott again said that he was not there, leading to the offender yelling, "He fucking is. Where is he?" Ms Mott, at this point, again asked the offender why he was smashing up her home and told him to get out.
The offender then smashed another glass panel in the entertainment unit and said, "I'll be back in five minutes. He better be here. He is with my missus. I am Jamie Hitch." Ms Mott replied, "I don't know, mate, I've been at work." The offender again asked where PJ was and made threats to come back and cause harm to PJ. The offender then walked to the front door where he smashed a window next to the door using his baton before exiting the door. The entire incident that I have just described lasted about two to three minutes. Police were called by Ms Mott and they attended shortly thereafter.
The next day, Thursday, 3 January 2019, police saw the offender walking along a street in Penrith and arrested him and took him to Windsor Police Station. On Friday, 4 January 2019, police attended the address at Jamieson Road, Penrith, where the offender had been living with Emily Heffernan. Police searched the converted garage with the consent of the offender's sister but nothing of interest was seized, however while at the property police took photographs of a silver/gold coloured Holden Commodore parked in the driveway. Police subsequently obtained CCTV footage from a house in Erina Place, South Windsor, which showed that on the day of the offence a car of a similar appearance had entered the street shortly after 6pm. Those are the factual matters on which I must sentence Mr Hitch.
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OBJECTIVE SERIOUSNESS
The offence, as I have said, carries a maximum penalty of 20 years' imprisonment and a standard non parole period of five years. These are, of course, important guideposts in the sentencing exercise and also confirm that any offence of breaking and entering and committing a serious indictable offence knowing persons are in a house is ordinarily an objectively serious one. The facts of this particular matter involve a relatively serious form of that type of offence.
It is a fundamental principle behind offences involving breaking and entering that the law and our society places great value on the sanctity of a person's home. A person is entitled to feel safe there and an offence like this, which effectively amounted to a home invasion, would clearly be regarded in the community as very concerning. The community is entitled to expect that persons who commit this type of offence will receive appropriately severe penalties.
In the circumstances of this case the Agreed Facts make it clear that the offender knew of the presence of persons inside the house, that being the circumstance of aggravation pleaded in the indictment. In fact it is clear from the words that the offender used when he attended the house that he was actually expecting someone to be in the house.
In determining the appropriate sentence I have had regard to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 although, as was observed in the later case of Mapp v R (2010) 206 A Crim R 497, the decision in Ponfield has largely been overtaken by statute, primarily s 21A of the Crimes (Sentencing Procedure) Act 1999. Having regard to that section, s 21A, I note first that the offence is attended by a degree, although only a limited degree, of planning, by reason of the fact that the offender armed himself beforehand with the baton. The fact that he was armed with that offensive weapon is itself an aggravating feature of the offence.
I note the decisions of the Court of Criminal Appeal in R v Li (unreported, NSWCCA 9 July 1997), and Marshall v R [2007] NSWCCA 24 which indicate that there is no De Simoni v R error involved in me taking into account this additional circumstance of aggravation. I note, for the sake of clarity, that I have been careful not to treat the baton as a "dangerous weapon" as that is defined, because that would involve a more serious offence under s 112(3).
This particular offence was also committed in the victim's home. This is not an element of the offence under s 112(2) and so it is an additional aggravating feature of the offending: see Palijan v R [2010] NSWCCA 142; R v Bennett [2014] NSWCCA 197.
As the Crown submitted, no doubt this would have been a terrifying experience for the two victims who were at home at the time and who were unable to secure their premises after the offender left, threatening to return as he departed. As the Crown also submitted, the offence was unprovoked. The two victims did not know the offender and were innocently going about their normal routine when he arrived at the house uninvited and did what he did. The duration, as the Crown said, of the offence was relatively brief, being about two to three minutes, but it certainly was not fleeting.
The type of serious indictable offence is also of relevance in assessing the objective seriousness. In this case a serious indictable offence of intentionally damaging property carries a maximum penalty of five years' imprisonment and is therefore at the lowest end of the threshold of the definition of serious indictable offence.
In my view, this particular offence, committed by Mr Hitch, is certainly above the lower range but is slightly below the mid-range of objective seriousness.
Although not a matter that goes to the objective seriousness of the offence, I note that the offender's criminal behaviour is aggravated because he was on parole at the time of the offence and has a record for offences of a fairly similar nature.
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SUBJECTIVE MATTERS
The Court has been provided with two psychological reports by Mr John Nolan and I note that in the second of those reports, in summarising Mr Hitch's background, which I will come to shortly, the psychologist refers at para 43 to a number of possible mitigations to the offending: including that Mr Hitch was raised virtually without parental guidance and his parents were largely absent from the home; that his parents separated very early and were in and out of gaol; that he was living, in his very early years, in a pro criminal household; and, that he felt abandoned for much of his life; and that his only significant carer as a young man and boy was his grandmother, who died when he was in his late teens.
I note that when sentencing Mr Hitch in December 2015, his Honour Judge Hanley SC, who at that stage had the benefit of the first report prepared by the psychologist Mr Nolan, referred to the principles stated by the High Court of Australia in Bugmy v R [2013] HCA 37, and said:
"Where an offender has been raised in a household where both parents were heroin or drug dependent and the offender endured a period of time where both were incarcerated, as was the case here, this may mitigate his sentence because his moral culpability is less than the culpability of an offender whose formative years have not been marred in that way."
His Honour then quoted the further decision of Bugmy v R. His Honour went on to say, "The effects of profound deprivation do not diminish over time and should be given full weight in determining sentence." His Honour went on, "A background of the offender's crime may leave a mark on a person throughout life and compromise the person's capacity to mature and learn from experience" and, "I accept this is the case in respect of this offender and that his sentences should be mitigated when taking these factors into account."
I have taken into account the background of Mr Hitch also in determining the sentence in this matter and in my view, similar to the conclusions of Judge Hanley SC, it is a matter that does reduce to some extent the offender's moral culpability for his offending.
Mr Hitch is currently 32 years of age. His background, to which I have just referred briefly, has been placed before the Court in part by means of the psychological reports of Mr John Nolan of December 2015 and October 2020. Those reports describe a troubled childhood in which his mother was a heroin addict, in and out of gaol regularly, and included a stepfather who served an approximately 11 year sentence for armed robbery. The offender told the psychologist that he was raised in a criminally minded and fractured family.
One of the offender's main caregivers as a young child was his maternal grandmother. However, regrettably she died when he was only about 16 years of age. The offender left school at the end of year 10 but has apparently been fairly regularly employed since then. The offender has been assessed by the psychologist as slightly above average in intelligence, however his life since his teenage years after his grandmother passed away had been, at least until about 2014, dominated by the use of drugs, the most damaging one being methylamphetamine. The psychologist in 2015 noted a number of potentially mitigating factors arising from the offender's background to which I have referred briefly already but including being raised virtually without parents, who were in and out of gaol regularly, living in a criminal household, losing his primary carer at age 16 and feeling abandoned for much of his life.
The psychologist expressed the opinion in 2015 that the offender's period in gaol had been beneficial for him in that it had assisted in motivating him to seek treatment and to extract himself from the lifestyle into which he was born. When interviewed in December 2015 the offender presented in a positive fashion indicating that his time in remand had enabled him to avoid drug use and improve his physical and mental health. He indicated to the psychologist in 2015 that he intended to seek qualifications to enable him to commence his own IT business and he displayed a significant level of knowledge and ability in this area of activity. Ultimately the psychologist expressed the view in 2015 that the offender had insight into his problems, that he was remorseful, motivated to study and had career goals and that his probability of reoffending violently was low.
It is apparent from the remarks on sentence of his Honour Judge Hanley SC in December 2015 that the positive findings by the psychologist in 2015 about the offender's prospects of rehabilitation were influential in that his Honour made fairly generous allowances in terms of concurrency of sentence and a finding of special circumstances for varying the ratio between non parole and head sentence.
Regrettably the 2015 predictions of the psychologist were not borne out by subsequent events. The offender was released to parole on 27 May 2017 and, while subject to that parole, he committed a number of offences including the matter for which I must sentence him.
On 29 August 2017, three months after his release to parole, he committed an offence of damaging property for which he received a fixed term of two months' imprisonment which expired on 28 October 2017. About four weeks after being released on 28 October 2017 he committed another serious offence of intentionally distributing an intimate image without consent for which he was sentenced to 13 months' imprisonment with a non-parole period of seven months. After being released on 28 June 2018 he was then effectively subject to two parole orders. The first being the remainder of the 5 year head sentence imposed by Judge Hanley SC in 2015 and the second being the remainder of the 13 month head sentence imposed on 12 March 2018, the latter of which expired on 28 December 2018.
On 2 January 2019 he committed the offence that is before the Court today, and on 3 January, an offence of contravening an ADVO and using an offensive weapon to avoid arrest. As a result, the State Parole Authority made an order on 27 February 2019 revoking his parole effective from 2 January 2019.
A somewhat unusual feature of this offender is that his first offence of any kind did not occur until he was aged about 26. However since 2017, when he was in his late twenties, the longest period he has spent out of gaol is about six months. His recent history therefore does not immediately instil confidence that he will not reoffend in the future.
It is also a matter of concern that during his current period in custody the offender has been dealt with for a number of correctional centre offences, the most recent of which was in January 2020. Furthermore, he has been assessed as a medium high risk of reoffending. On the other hand there are some positive indications which have emerged relatively recently. Firstly, the psychologist indicates that when assessed on 16 October 2020 the offender was happy, relaxed and optimistic regarding his future. The psychologist also noted that the offender indicated a motivation for treatment, a positive attitude towards personal change and towards the value of therapy, and the importance of taking personal responsibility for his actions. He also showed some insight by stating that his offending was caused by his anger and that this is something he needs to address.
The psychologist also formed the view that the offender was remorseful and emphatically sorry for what he called a purposeless lack of emotional and behavioural control.
The offender has provided a letter of apology to the Court which refers to his wish to participate in anger management and to turn his life around as this is not the life, he says, he wants for himself and his two children who currently live with their mother.
He gave evidence on sentence in which he affirmed these things and his self-report to the psychologist. He said in his evidence that he intends to live with his mother after release, to pursue IT studies, and to obtain full time employment.
It is positive that he has a place to live, namely, with his mother, who appears to have stabilised her life and it is also positive that he has the support of a large number of family and friends who were present in Court here last Friday, many of whom I note are again here today. Of course it is early days yet and the real test will be when the offender is living in the community and is faced with a challenging situation in which he may become frustrated or angry. Having regard to all the material I think his prospects can be described as guarded but reasonable.
The offender has been in custody for approximately one year ten months. He has been in custody solely on this matter since 20 January 2020 when his fixed term of three months for the offence of using an offensive weapon to prevent detention expired. In the period since his arrest on 3 January 2019 he was in custody, bail refused, on the current charge but was also serving, until about 29 November 2019, the balance of parole for the offence on which Judge Hanley SC sentenced him and from 13 August 2019 until 20 January 2020 he was serving fixed terms of imprisonment for other offences.
It is a matter for my discretion as to the extent that I backdate the commencement of the current sentence. In exercising that discretion I have had regard to totality principles and the importance of taking into account the total period of custody to which the offender will be subject so as to avoid imposing a sentence which, when taken together with other sentences he has served, might be said to crush any motivation for reform.
I then turn to the actual sentence.
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DETERMINATION
I convict the offender. There is no dispute that the offence in this matter calls for the imposition of a full time custodial sentence. In determining the appropriate sentence I have had regard to the principles of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, in particular the need for general and personal deterrence, the importance of retribution, but also the importance of rehabilitation.
After taking into account the 5% discount I impose a head sentence of three years and four months' imprisonment. I intend to find and I have found special circumstances for varying the ratio between that head sentence and the non-parole period. I find special circumstances based on the need for a lengthy period of monitoring of Mr Hitch in the community. I impose therefore a non-parole period of two years. I intend to backdate the sentence to some degree having regard to the totality principles to which I have referred. Those sentences will date from 20 October 2019. The head sentence therefore will expire on 19 February 2023 and the non-parole will expire on 19 October 2021. I note that the offences on the s 166 certificate, that being sequence 1 of using a prohibited weapon and sequence 2 of possessing a prohibited weapon, are withdrawn and they are dismissed.
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Decision last updated: 11 February 2021