R v Hitch

Category: Sentence

Parties: NSW DPP – Crown
Kieran Hitch - Offender

Representation: Mr L Dowling for Crown
Ms G Jewison for Offender

File Number(s): 2023/438839, 2023/446388

remarks on sentence

1. Mr Kieran Hitch is for sentence in relation to a number of offences that I will set out in a moment. In referring to the offences, I will refer to the various H numbers. There are two particular H numbers that are the foundation for the charges. One is H95008506, which I will simply refer to as H number 506, which has various sequences associated with it. And the other H number is H95729176, which, for simplicity, I will just refer to as H number 176, which also has a number of sequences associated with it.

2. The offences for which the offender is to be sentenced are as follows:

3. H number 506 sequence 4, which is an offence of aggravated break and enter and commit serious indictable offence, namely intimidation, knowing that there were persons inside the premises. An offence under s 112(2) of the Crimes Act 1900. That carries a maximum penalty of 20 years' imprisonment and a five year standard non-parole period is specified.

4. H number 176 sequence 1, which is an offence of the same character, and carries the same maximum penalty and standard non parole period.

5. H number 176 sequence 7, which is an offence of intentionally choke. That is an offence under s 37(1A) of the Crimes Act and carries a

6. maximum penalty of five years' imprisonment.

7. H number 176 sequence 10, an offence under s 111(1) of the Crimes Act of entering a dwelling with the intention of intimidating. That carries a maximum penalty of 10 years' imprisonment.

8. There are also two offences which are to be dealt with on a s 166 certificate under the Criminal Procedure Act 1986 as follows:

9. H number 506 sequence 1, which is an assault, and carries a maximum penalty of two years' imprisonment.

10. H number 176 sequence 5, which is an offence of contravening the terms of an apprehended domestic violence order, which is an offence under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, and carries a maximum penalty of two years' imprisonment.

11. Furthermore, in relation to H number 506 sequence 4, I will take into account, on a Form 1 document, two offences, which are set out on that document, and in sentencing for H number 176 sequence 1, I will take into account three offences, which are set out on a Form 1 document.

12. The maximum penalties and, where applicable, standard non-parole period, are, of course, important yardsticks, or guideposts, in the sentencing exercise, and I have had regard to those in the sentencing exercise.

13. The offender pleaded guilty at the earliest opportunity, and therefore will be given a 25% discount by reason of the utilitarian value of that plea of guilty.

FACTS

7. The facts are agreed and, in summary, are as follows. The primary victim of the offences before the Court is a young woman, who I will call "AB". She was born in 1990 and is about five and a half years younger than the offender. At the time of the offences, the victim and the offender had been in an on and off relationship for about eight months. The victim lived in Muswellbrook with her three children, and the offender was staying there, but was not on the lease.

8. On 1 December 2023 the victim told the offender that she no longer wanted to be in a relationship with him. The next day, 2 December, the victim and the offender were talking, during which the victim reiterated that she did not want to be with him. Between 2 and 4 December there were a number of incidents that are the subject of the offences before the Court. The first incident was as follows, and occurred on 2 December.

9. The offender became angry with the victim, and aggressive, and said, "Why me? Why are you doing this to me?" and threw a Milo tin in the direction of the victim, which hit a wall, leaving a dent in it. He also threw a milk bottle, which hit the wall above where the victim was sitting. The victim became upset and the offender then smashed one of her ornaments. After this he said he was sorry and that he did not mean it. However, the victim said she hated him, because he had broken something that meant a lot to her, and the offender said, "I'll smash this whole house up", and started "carrying on", which prompted the victim to say she would call the police.

10. The offender's actions in damaging property are the subject of H number 506 sequence 2 offence, which is on a Form 1 document. His threat to smash up the house is the subject of H number 506 sequence 3, intimidate offence, which is also on a Form 1.

11. After these events, the offender kept saying sorry to the victim, but then, while she was sitting on a lounge using her mobile phone, he kicked her and knocked the phone from her hand. While the victim said this "sort of hurt", she did not suffer any injuries. The offender again said sorry, but then called the victim "a dog" and kept "carrying on". The victim was, at this time, on the phone to a female friend, but due to the offender's actions she hung up and called the police. The offender's actions in kicking the victim are the subject of the H number 506 sequence 1 assault offence, which is to be dealt with on a s 166 certificate.

12. The offender ended up leaving the property. Police arrived about 2pm, but the victim, at that time, was not prepared to provide a statement, saying that she just wanted the offender out of the house. When two of the victim's friends attended at around 2.15 that day they found her to be quite upset and crying.

13. It was shortly after this that the second incident occurred. This incident is the subject of the H number 506 sequence 4 offence of aggravated break and enter and commit serious indictable offence.

14. At around 2.55pm on 2 December 2023 the victim's two female friends saw the offender at the fence in the property next door. He was walking back and forth, looking up at the two women who were on the veranda having a cigarette. The women then, however, went inside the house and locked the door. The offender jumped the fence and tried to get through the back door, but was unsuccessful. The victim yelled at the offender telling him to go away, and went around ensuring that the house was locked.

15. The offender, however, tried to get in through a bathroom, and when the victim shut the window the offender said to her, "What the fuck do you think you're doing", and entered through a window in the victim's daughter's bedroom. He came into the lounge room and "started carrying on again" at the victim while her two friends were present. The offender said, "Why did you call the police? You're a copper dog."

16. The victim repeatedly told the offender to leave, but he refused and said he wanted to talk, to which the victim responded, "No. I've got nothing to say to you." The offender tried hugging the victim, but she said no. The offender then threw a box of Pokémon cards across the room, which hit a wall, and the victim called police. The offender then grabbed a large suitcase and walked to the veranda, but then turned and said, "I'm going to burn your house down", before leaving without the suitcase.

17. Police arrived at about 3.10pm. The statement of facts notes that the incident left the victim and the other occupants of the house feeling scared. While the victim's baby son was in the house at the time, he remained asleep and was, therefore, not directly affected by these events. Throughout the incident the offender kept trying to "bear hold" the victim and say sorry. The statement of facts notes that the offender ripped the victim's phone from her, and, in doing so, also pulled her hair.

18. The third incident occurred as follows. The next day was the Sunday 3 December 2023. The victim went with her three children to her sister in law's house. However, at about 11am, within an hour of her and her children returning home, the offender was at her door crying and begging to talk with her. The victim, however, said, "No, Kieran. Just go away. I'm not letting you in." This went on for about three minutes before the offender walked to the back of the house and entered through a window, which he opened. In entering the window, the offender knocked a curtain to the floor, although it is not suggested that this caused any real damage. The offender's action in breaking into the house is the subject of the H number 176 sequence 1 aggravated break and enter with intent to commit serious indictable offence of intimidation offence.

19. The offender then went to the victim and hugged her, saying "I'm sorry. Talk to me please", and, "Why are you doing this to me?". This made the victim uncomfortable and scared that the offender may do something and she called the police. The offender then threw a Pokémon box, which caused no harm or damage, and then walked out the front door. The actions of the offender in taking hold of the victim and throwing the Pokémon box are the subject of the H number 176 sequence 2 intimidate offence that is on a Form 1.

20. That night, the offender contacted the victim several times asking to come over, but the victim said no. She again called police due to the offender's threats to come over again, although he did not do so. After this, the offender was constantly contacting the victim using different numbers and different accounts.

21. That then brings me to the fourth incident. On the morning of 4 December, a Monday, the offender was, again, calling and messaging the victim saying that he knew that "forensics" were over this morning, which made the victim believe that the offender had been watching the house. Later that day, the victim pulled up in her car at the premises of a female friend, Elizabeth, who had invited the victim and another woman, Julie, over for coffee.

22. It was around 4.30pm when the victim got out of her car at her friend's house and when the other friend, Julie, who lived across the road, saw the victim she, that is Julie, started walking over to join her at Elizabeth's house. At this time, Elizabeth was in the backyard of her house with her dog, and when she did not answer the door Julie and the victim entered the house. The victim carrying her infant son. Upon entering the house, Julie saw the offender hiding in the kitchen. I note that the offender's entry into the house is the subject of the H number 176 sequence 10 offence of enter with intent to commit serious indictable offence of intimidation offence.

23. The offender then jumped out at the victim and slammed the front door closed. The offender screamed at the victim, "Give me your fucking phone", and was asking the victim about a male person she had been talking to. The victim, however, refused to hand over the phone and the offender yelled several times, "I will fucking kill you", and "I'm going to fucking stab you." He grabbed the victim by the throat, pushed her against a wall, and threatened to stab her. At this point, the victim was still holding her son. The victim, however, said, "Go on. Do it." When the offender responded, "I will", she said, "Well, do it." The offender's actions in threatening the victim are the subject of the H number 176 sequence 3 intimidate offence, which is on a Form 1 document.

24. At this point, Julie said to the offender, "Let her go, Kieran", and referred to the fact that the victim was holding her child, and then took the child from the victim who moved into the kitchen. The offender then grabbed the victim by her arms and slammed her into a wall, causing a crack in the wall. This assault is the subject of the H number 176 sequence 4 assault offence on a Form 1.

25. The victim fell to the ground and started crying while the offender took hold of her phone, which had fallen from her pocket. At this point, Julie walked outside with the child. The offender, however, started talking about messages and accusing the victim of talking to blokes, asking her why she was "doing this to him" and what had he done. The victim stood up and told the offender to leave her alone, and pushed and kicked at him to get off her. The offender, however, kept coming at the victim and choked her while she was standing up.

26. The victim asked for her phone to be returned, but the offender said, "No. You're not fucking getting it back", and threatened again to kill the victim. At this point, the offender had the victim in a chokehold, which hurt the victim. He said to her, "Say it again", and at this stage, with the offender's arm still around the victim's neck, they fell onto a lounge, where the victim said, "Go on, kill me", while the offender kept saying, "Say it again", as he tightened his grip. The victim was, at this point, struggling to breathe. Her heart was pounding and she was scared. The offender's actions in choking the victim are the subject of the H number 176 sequence 7 offence for which he is to be sentenced.

27. Elizabeth then walked in and told the offender to leave. She then ran to the front door and the offender yelled at her, "Go on. Ring the coppers, you dog", before the offender left the house with the victim's phone. Police were then called.

28. The statement of facts notes that Elizabeth was formerly in a relationship with the offender's brother, and was the named person in need of protection under an Apprehended Domestic Violence Order, which had been served on the offender on 20 November 2023. The conditions of that order included that the offender not approach Elizabeth, or contact her in any way.

29. The offender breached that order by his in person contact with the protected person at her home, as I have just described, and also by his actions in making other contact with her by telephone calls and Facebook. The offender's actions in breaching that order are the subject of the H number 176 sequence 5 offence for which he is to be dealt with on a s 166 certificate.

30. The statement of facts notes further that, during this incident with the offender, the primary victim, in other words, the person I have referred to as AB, tried to defend herself by kicking the offender and pushing him away, and trying to hit him. The incident made her feel scared and more so than she already was. She said that her children were also afraid, and did not want to stay at home anymore.

31. Police arrested the offender on 9 December 2023 and he has been in custody since that time. Those, in summary, are the agreed facts.

OBJECTIVE SERIOUSNESS

32. I then turn to consider the objective seriousness of the various offences before the Court. The first, what I will refer to as the first two offences, those being H number 506 sequence 4 and H number 176 sequence 1, are offences of the same type. That is, break and enter with intent to intimidate, aggravated by a reason that the offender knew that there were persons inside.

33. Any offence involving breaking and entering a person's home is a serious offence. Such offences ordinarily require significant punishment so as to acknowledge the invasion of the sanctity of a person's home, which such offences involve. It is also relevant to have regard to the nature of the offence that was the subject of the offender's intention.

34. In this regard, each of these offences involved an intent to intimidate. That offence, itself, carries a maximum penalty of five years' imprisonment, which places it at the lower level of serious indictable offences. Nonetheless, it is appropriate that I have regard to all of the circumstances in making my assessment of the objective seriousness of each offence. Neither of these offences involved any sophistication or planning, and they were not accompanied by the use of any weapons or other dangerous implements.

35. With respect to H number 506 sequence 4, I make the following observations and findings. The entry was to the victim's home, where she was entitled to feel safe. It involved very persistent efforts by the offender, who ultimately got in through a bedroom window. The intimidating acts included the very serious threat to burn the house down, in circumstances where there were people in the house. The offender remained in the house despite the victim's repeated requests that he leave, which he only did when police were called. I assess this offence as being just below the mid-range.

36. There are two matters to be taken into account on a Form 1 document for this offence. Neither of these increase the objective seriousness of the primary offence. However, as was set out in the Attorney-General's application of 2002, reported at (2002) 56 NSWLR 146, offences on a Form 1 can be taken into account so as to potentially increase a penalty for an offence by reason of the need for personal deterrence and also the community's entitlement to extract retribution for serious offences. Of course, it is not an automatic process. In taking into account matters on a Form 1, each case will depend upon the circumstances. In this particular matter, each of the offences on the Form 1 were, themselves, relatively serious, particularly the threat to smash up the house. In my view, they should operate so as to increase, to some extent, the penalty for the substantive offence.

37. Turning then to H number 176 sequence 1, this offence also involved breaking and entering the victim's home where she was entitled to feel safe. The entry was, again, after the offender had repeatedly been told to go away. The act of intimidation, upon which the Crown relies, is the offender's action in taking hold of the victim with an unwanted hug, which places the act of intimidation at a somewhat lower level of seriousness. I assess this as an offence that is above the low range, but comfortably under the mid-range of objective seriousness.

38. Again, there are matters on a Form 1, and, in this particular case, there are three of those. As I have said, these do not increase the objective seriousness of the substantive offence. However, it is open to the Court to take them into account in the manner that I have already described. Two of the offences are, themselves, serious, namely the assault and the threat to kill the victim. It is appropriate that I take them into account in the way I have already discussed. I remain conscious, however, of the need to avoid double counting, given that the assault and the threat to kill were committed at the same time as the H number 176 sequence 7 offence of choking the victim, and were really part of that one incident.

39. That then brings me to the H number 176 sequence 7 offence of intentionally choke. This was obviously a very serious offence. The offender's arm was around the victim's neck and he was tightening his grip while, at about the same time, repeating his threat to kill the victim. The choking hurt the victim, who was struggling to breathe, and caused her real fear. The offence was committed in a home where the victim ought to have been safe. The exact duration of the choking is not known, but it was not brief. Fortunately, the offence did not involve any long term physical harm, although I have no doubt that it will remain a traumatic experience, which the victim is unlikely to forget. I regard it as an offence around the mid-range of objective seriousness.

40. Turning then to H number 176 sequence 10, which is an offence of entering a dwelling with intent to intimidate. As I have already noted, the serious indictable offence of intimidate sits towards the lower end of serious indictable offences. The entry was made into a home, and part of the offence occurred in the presence of the victim's young son. There is no suggestion that the offence involved any damage to property. I regard it as an offence that is slightly below the mid-range.

41. H number 506 sequence 1, is an offence of assault. That is to be dealt with on the s 166 certificate, and carries a maximum penalty of two years' imprisonment. This involved the offender kicking the victim, knocking her phone from her hand, in apparent response to her indication that she would call police. It occurred in a home where the victim was entitled to feel safe from violence, and was accompanied by continual verbal abuse. I assess it as falling slightly below the mid-range.

42. The H number 176 sequence 5 offence is one of contravening an Apprehended Domestic Violence Order, which was in place for the protection of the person, Elizabeth. That offence carries a maximum penalty of two years' imprisonment. The offending involved an in person contact breach, as well as contact via telephone calls and Facebook. As I noted, and as was agreed during the sentence hearing, I have disregarded the implicit threats made to the person in need of protection not to speak to police, because they may amount to a more serious offence, and therefore a De Simoni error. I regard this offence as a mid-range offence.

SUBJECTIVE MATTERS

43. Turning then to subjective matters relating to the offender himself. He turns 29 next week. At the time of the offences he was aged 27. He has some criminal history, but it is fairly limited, and this is his first experience of prison. The subjective case is set out in the report of psychologist, Dr Rebecca Smith. The offender is the youngest of seven brothers, and was raised, primarily, by his mother, with whom he developed an extremely close relationship. His early childhood involved significant disruption, however, and his parents separated when he was very young. There had been significant domestic violence perpetrated on the offender's mother by the offender's often drug affected father.

44. As a result, the offender had no real relationship with his father until he was 11, and his relationship with his father is now very limited. The offender does, however, have a good relationship with his mother's current partner, who the offender refers to as "Dad", and who provides positive support and good role modelling. Regrettably, and as noted in a letter from the offender's mother, the offender's stepfather has recently been diagnosed with some form of cancer and the offender is desperately keen to be reunited with him as soon as possible.

45. The offender attended school to year 9, but displayed significant behavioural problems leading to his frequently being sent home from school. The psychologist notes that this seems to have been a pattern engineered by the offender, so as to allow him to spend more time with his mother. He has a history of some significant relationships with women, but these have involved a pattern of instability and complexity. He has two daughters from these relationships, although he has contact with only the younger one, who is aged about three. It was after these earlier relationships that the offender entered a relationship with the victim of some of the offences now before the Court.

46. The offender commenced using cannabis at age 15, but by age 16 or 17 he was using methylamphetamine on a regular basis, and this escalated in the period leading up to the offences. He told the psychologist that, at the time of his offences, he was experiencing severe anxiety and that he was delusional and hearing voices. The psychologist suggests that these symptoms "appear to have contributed to paranoid ideation about his partner's fidelity". The offender told the psychologist that he had largely avoided substance use in custody, although with one transgression. She notes that the offender's reported delusional symptoms appear to have resolved since his incarceration.

47. Given the behaviour described in the statement of facts, it seems probable, in my opinion, that the offender was affected significantly by drugs at the time of the offences. However, while this provides some context, the intentional use of drugs does not excuse, or mitigate, the offending in any way.

48. The psychologist concludes that the offender presented with symptoms consistent with depression and anxiety, and for which he is prescribed the drug, Zoloft. I have taken these mental health diagnoses into account, in that they are likely to have made, and to continue to make, the offender's experience of custody more difficult. In this regard, I reference the principles discussed in the Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. There is no suggestion, however, by the psychologist that these mental health conditions contributed to the offending in any significant or material way.

49. In determining the sentence I have also given weight to the fact that the offender's childhood upbringing was a relatively unstable and disruptive one, by reason of his parents' separation and his early exposure to domestic violence. I accept that this background likely made some contribution to the offender's development, and to his disrupted attachment, anxiety and depression, and operates to reduce his moral culpability to some limited degree.

REMORSE

50. Turning to questions of remorse. The offender told the psychologist that his behaviour was disgraceful and claimed it was out of character. The psychologist concluded that he has emerging insight into the gravity of his offending, and showed understanding that his responses had been disproportionate to the situations he was in. This is consistent with his expressions of remorse to his mother and friend, Ms Towler. I accept that there is genuine remorse in this case.

PROPSECTS OF REHABILITATION

51. Turning then to prospects of rehabilitation and future risk of reoffending. The psychologist lists a number of protective factors that are relevant to the offender's prospects of rehabilitation and his future risk of offending. These include family support; some prospects of employment; avoidance of drugs while in custody; completion of some courses in custody; and his developing insight. However, she also notes a number of risk factors. These include a history of instability and domestic violence; substance abuse; emotional regulation problems; social communication problems; and limited education and employment history.

52. It is positive that, according to the offender's mother, he is motivated to engage with Alcoholics Anonymous and Narcotics Anonymous upon his release. A further positive factor is that his brother and his sister-in-law are both engaged with these organisations, and that the offender intends to attend such meetings with them. The psychologist concludes that the offending behaviour is contextually related to a substance induced psychosis and underlying difficulties with emotional regulation and relationship management. Of course, the fact that the offences may have been contributed to by the effects of drugs is not a matter that operates to reduce the seriousness. Nonetheless, and as I have already said, it provides some context.

RISK OF REOFFENDING

53. The psychologist suggests that the offender has the potential for reduced risk of reoffending with appropriate and comprehensive intervention. Of course, this comprehensive intervention has not yet happened. Until it does, it seems to me that his prospects of rehabilitation must be seen as guarded, and he remains a material risk of reoffending.

YOUTH

54. In determining the sentence I have also had regard to the offender's relative youth. He is not a child, or an adolescent. However, he is still a relatively young man, and, as has been said in a number of cases, emotional maturity and impulse regulation are matters that develop progressively and may not be fully developed in young persons, particularly males, until their early to mid-20s: see, for example, BP v R [2010] NSWCCA 159 at para 4.

55. I have earlier made reference to the offender's diagnoses of depression and anxiety, and, in accordance with the principles discussed in the De La Rosa case, I have taken that into account in the sense that the existence of those conditions is a matter that is likely to have made the offender's experience of a custodial environment more difficult and will continue to do so for any further period during which he is to be in custody.

DETERMINATION

56. Coming then to my final decision. In setting the sentence I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which I do not intend to recite in any detail. However, I do note that, in my view, the importance of general deterrence is decreased to some degree by reason of my finding that the offender's moral culpability is reduced by reason of his difficult upbringing.

57. I am satisfied that the threshold in s 5 of that same Act is crossed with respect to the six offences on which the offender must be sentenced.

58. I intend to impose an aggregate sentence, given that there are six offences. I have made a finding of special circumstances for adjusting the ordinary ratio between head sentence and non-parole period. I have done that on the basis that this is the offender's first experience of custody, and, furthermore, by reason of my conclusion that he should be subject to a reasonable period on parole once he is released into the community.

59. As I am imposing an aggregate sentence, I am required to set out the indicative sentences with respect to each of the offences for which he is to be sentenced. Each of these indicative sentences are after the application of the 25% discount for plea of guilty.

60. The indicative sentences are as follows;

61. For H number 506 sequence 4, aggravated break and enter, and taking into account the matters on the Form 1, a head sentence of two years eight months. A non-parole period of 18 months

62. For H number 176 sequence 1, a further offence of aggravated break and enter, and taking into account the three matters on the Form 1, a head sentence of two years five months. A non-parole period of 16 months

63. For H number 176 sequence 7, intentionally choke, a head sentence of one year eight months

64. For H number 176 sequence 10, enter dwelling with intent to intimidate, a head sentence of 18 months

65. For H number 506 sequence 1, which is on the s 166 certificate, a head sentence of three months

66. For H number 176 sequence 5, four months' imprisonment.

67. In determining the ultimate sentence, which I will announce in just a moment, I have had regard to totality principles. In other words, the importance of examining and considering the totality of the criminality involved, and determining the extent, if any, to which the various sentences should be notionally accumulated, or whether it is appropriate that they be served concurrently. In my view, there is a need for a degree of notional accumulation by reason of the fact that these offences were committed over a series of incidents. However, I have taken into account the importance of imposing a sentence which addresses the various factors in s 3A, but also does not have the effect of crushing any prospects of rehabilitation in the offender. In my view, rehabilitation is an important factor in this sentencing exercise.

68. I impose an aggregate head sentence of three years three months. I impose a non-parole period of one year ten months. The sentence will date from 9 December 2023. The head sentence, therefore, will expire on 8 March 2027. The non-parole period will expire on 8 October 2025.

69. Anything that either of the advocates need to raise?

70. DOWLING: No, your Honour.

71. JEWISON: No, your Honour.

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