R v Hunter

OBJECTIVE SERIOUSNESS

1. Those in summary are the facts upon which he is to be sentenced. Clearly, each of the aggravated break, enter and commit serious indictable offence matters are objectively serious, given the 20 year maximum penalty and standard non-parole period that applies. So too is the offence of aggravated enter with intent which carries a 14 year maximum. However, the objective seriousness of the offences also involves an examination of the particular circumstances of each crime. Offences involving breaking and entering premises and stealing property have been regarded as serious by the Courts and the community for a very long time. This is in part due to their prevalence and because also of the harm that they cause. Victims lose property sometimes of great monetary value, or with great sentimental value far beyond its monetary worth.
2. A very significant factor in sentencing for these types of offence is the psychological harm which these types of offence involve by the loss of a feeling of security or sanctity in the home and also the invasion of privacy which such offending involves. This is particularly the case with offences of entering premises where the offender knows that there are persons inside: "Even where the victim is unaware at the time that the burglar is in the house it can be a frightening experience to learn that a burglary has taken place". That being a quote from an earlier English case which was cited with approval in the Court of Criminal Appeal decision in R v Ponfield [1999] NSWCCA 435. Offences of this kind have also led to the prevalence of bars on windows, burglar alarms, CCTV cameras, and of course increased insurance premiums. Offences of this kind must therefore be dealt with in a manner which gives substantial weight to deterrence.
3. In this particular case all of the offences were committed against a background of the offender being significantly affected by drugs. While this is not an excuse or a mitigating factor, it provides relevant context that goes to explain to some degree the offending behaviour. In my view the sequence 1 offence, that is the offence of 20 December involving Mr Soulby's premises, lies somewhere below the mid-range of objective seriousness but does not approach the lower range. While the value of property stolen was considerable both in monetary and sentimental terms, the breaking and entering did not involve any damage or any ransacking and there was no gratuitous vandalism committed. Also, the offence did not involve any confrontation with the occupant, who was unaware of the invasion until after the offender had left. The offence, however, did involve some planning in that the offender confessed to police that he had watched the victim inside the house for about two hours before entering through the sliding door.
4. In relation to the sequence 5 offence of aggravated break, enter and commit serious indictable offence at the premises of Mr and Mrs Kollar, I accept the Crown's submission that the objective seriousness for that offence is above the lower range, but below the middle range of objective seriousness. This offence did involve damage to property in that the rear glass door was smashed in order to gain entry before stealing the victim's wallet. The offence also involved considerable disturbance and no doubt fear in the victim, Mr Kollar, who no doubt would have been very concerned not only as to his own safety, but that of his wife and children. Although the property stolen was of a lesser value than the offence committed on 20 December, the damage committed by the offender, together with the fact that Mr Kollar was no doubt fearful that someone was in his house, means that this offence is also a relatively serious one.
5. The sequence 8 offence committed on Christmas Day 2019 at the home of Mr and Mrs Stevens, which I have noted involved the theft of keys after entering through an open door, was an offence that did not involve any gratuitous vandalism or any confrontation with the occupants. I agree with the Crown's submission that this offence lies towards the lower end of objective seriousness
6. Of course, in sentencing for this offence I must also take into account the three matters on the Form 1 document, which means that more emphasis must be given to the need for specific deterrence and retribution. However, in that regard I accept the submissions made on behalf of the offender that the Form 1 offences in this particular case should not impact significantly on the sentence to be imposed. That is because, as was submitted in the case of the offence of take and drive conveyance, that being the Holden Commodore, the offender only drove the car about 500 metres or so from the victims' home after which he alighted from it and fled the scene, although admittedly he did apparently take the keys with him. However, there was no damage done to the vehicle and it seems as though the vehicle was returned to its owner.
7. As to the offence of riding without a helmet, it is obviously an offence at the lower end of the criminal calendar, if not at the lowest end, and carries a fine only. In terms of the offence of resist police, I agree that the objective seriousness of that is very much at the lower end of seriousness given that it involved effectively only the offender breaking free from the police officer's attempted grasp of his arm.
8. In assessing the objective seriousness of each of the offences described in sequence 1, sequence 5 and sequence 8, I have taken into account that each of them were committed in the home of the victim. As the Court of Criminal Appeal noted in Palijan v The Queen [2010] NSWCCA 142, the offence of breaking and entering does not require as an element that the premises be the home of the victim. This is, therefore, an aggravating objective feature.
9. While not relevant to objective seriousness I note that all of the offending is aggravated in this case because the offender has a record of previous convictions for similar matters and also significantly because the offender was on conditional liberty at the time having been released on parole on 29 April 2019 for an offence of armed robbery.
10. In terms of mitigating factors there are the pleas of guilty for which the offender is entitled to a discount of 25%. Furthermore, in relation to the sequence 5 offence committed at Mr Kollar's home on 5 January 2020, I am satisfied the offender is entitled to an additional discount by reason of the fact that it was only by his own confession that the offender's responsibility for that offence was able to be detected: see R v Ellis (1986) 6 NSWLR 603 and s 23 of the Crimes (Sentencing Procedure) Act 1999.)

SUBJECTIVE MATTERS

1. Mr Hunter's subjective case has been placed before the Court by means of a psychological report and some other written material, as well as evidence on oath from him, and also Mr Nicholson, a past President of Rainbow Lodge.
2. The psychological report notes that the offender is now almost 31 years of age. He is of Aboriginal background, but was adopted out at about the ages of 1 to 2 years, and was raised initially by his adoptive parents. His adoptive mother is of Aboriginal background, and his adoptive father is apparently of Scottish background. The psychological report goes on to note that when Mr Hunter was about 15 years or so he began to engage in some criminal behaviour and this resulted in his adoptive father asking him to leave the home. Since then it appears his adoptive father has made little or no attempts to mentor him or engage in any useful treatment or other intervention and it appears that he currently has little, if any, relationship with his adoptive father and adopted sister, who regrettably have not visited him in gaol or attempted to contact him.
3. The psychological report notes that for the past approximately 14 years Mr Hunter has spent the majority of his time in custody, a matter about which he expressed considerable regret. The psychological report goes on to note that after Mr Hunter was released into the community in 2019 on parole the relationship between he and his on again/off again partner involved a situation where he initially believed that he was the father to the child with whom his partner was then pregnant. However, some time later he was, as noted in the psychological report, told by his ex-partner that he was not the father of the child, a matter which, he told the psychologist caused him an extreme emotional reaction, and a matter which he believes largely contributed to his relapse into cannabis and ice use which ultimately led to the events that bring him before the Court today.
4. The psychological report notes that after Mr Hunter's release from gaol in 2019 he attended Rainbow Lodge, which is a drug and alcohol centre, and in fact, completed a three month program from which he was discharged on 25 August 2019. During his time in that program his performance apparently was quite good. At the same time he was also working doing scaffolding and playing football at a very highly proficient level. Regrettably, however, some months after his discharge from Rainbow Lodge, as I have noted, he relapsed essentially in the context of the information given to him by his then partner. He told the psychologist that after he had been given that information he just did not care what he did and he thought, "Fuck this, I'm going back to gaol. I wouldn't care if I died. I just didn't care about the consequences." He told the psychologist that after this he became largely homeless and was smoking large quantities of ice and that the offences that he committed were largely so as to support his then drug habit.
5. He expressed to the psychologist some remorse and some regret for his offences saying that he felt terrible that he had let down all the people who had supported him including the people at Rainbow Lodge as well as his football coach and his employer. He said that he thought it was disgraceful that he had spent the most part of 14 years in custody.
6. He did express some empathy saying that he felt bad for the victims, and in particular the fact that one of the houses he had broken into was one where young children were present. The psychologist did, however, note that in her assessment the offender's empathy was perhaps somewhat superficial in terms of his understanding and that he actually told her that he found committing break and enters to be somewhat addictive. That is a matter that I will return to briefly at a later stage.
7. Ultimately the psychologist concluded that the offender met the diagnoses for Stimulant Use Intoxication with Stimulant Use Disorder, Cannabis Use Disorder, Major Depressive Disorder, Substance Induced Psychotic Episode and Personality Disorder with Antisocial and Borderline Features. She also expressed the view that at the time of the offences Mr Hunter was experiencing aspects of those mental conditions and disorders.
8. She notes that upon his release from prison in 2019 the offender did make a concerted and genuine effort to live a better life in that he completed rehabilitation, made good use of his recreational time playing football and worked in a scaffolding job. Ultimately she concluded that the offender, upon release, will require case supervision and treatment if he is to avoid reoffending in future.
9. The offender also gave evidence in the proceedings today and confirmed the history given to the psychologist, stating that he had been adopted out when he was still very young and that he had only spoken to his natural mother twice and that these occasions were very awkward and that more recently he had actually asked her the name of his father, which she at that stage refused to tell him. He said he had never been to Lake Cargelligo where his natural family apparently lives, although he does wish to go there. He said that his adopted mother who, as I have noted already, was of Aboriginal background, had a stroke when he was still quite young and so he did not really have much of a relationship with her given that she was confined to a wheelchair and was living in a nursing home. He gave evidence that because he has had little contact with natural family, his current situation is that he struggles somewhat with his Aboriginal culture because in part, as I have noted, he was brought up by his adoptive father who was not of Aboriginal background.
10. He said that his time at Rainbow Lodge was the best change he has ever made in his life and described the various things that they did for him, including finding him a place in a football team, encouraging him in his art, and giving him access to alcohol and drug counselling and other activities. He confirmed, as he told the psychologist, that he was somewhat shattered when his female partner told him he was not the father of the child and that it was this that led him back into a negative mindset such that he got back onto drugs, including ice. To his credit Mr Hunter has said that he has plans upon his release. He hopes to remain in contact with the outreach caseworkers at Rainbow Lodge, which apparently he still is at present in his custody situation and he hopes to be able to attend a further period of rehabilitation, either at Rainbow Lodge or at one of the other possible rehabilitation placements, including one at Balmain and one known as the Bourke Street Project, or similar. To his credit he said that once he got out of gaol and after receiving the devastating news from his former partner he effectively took what he had for granted and he said that in fact he had so much support available to him at that time and what he could have done, and should have done, was to call people such as the people at Rainbow Lodge or his parole officer or other people who were available to assist him. It is, I think, a very positive matter that he was able to say today that he was ashamed that he did not do that and that what he has learned now is that if he is in trouble in the future then he should pick up the phone rather than doing things like taking drugs.
11. He was cross examined about his statement to the psychologist where he said that doing break and enters can be a bit addictive and he agreed that he did say something to that effect. I think, however, it is to his credit that in answering that question he said that, well he not only acknowledged saying it but went on to say, showing some degree of insight, that it is "so easy to be bad; it is so hard to be good". He said that "it is a bit like a drug, you get an adrenaline rush from getting away with it." While on one level it is concerning that he would express that view, on another level it is indicative of some growing insight.
12. In terms of insight he also when cross-examined said that he thought the victims of his break and enters would have been terrified, especially when he smashed the window of the house where the children were. He, to his credit, said that of all his victims they would likely now still be terrified about future break-ins and probably locking their houses much more securely.
13. Evidence was also called today from Mr John Nicholson, who is a past president of Rainbow Lodge and of course also a retired judge of this very court. He gave evidence about the manner in which Rainbow Lodge operates and otherwise confirmed the terms of other material that has been placed before me. The most significant aspect in my view of Mr Nicholson's evidence, however, was his comments about his interactions personally with Mr Hunter. He said that he had developed somewhat of a personal relationship with the offender and he said that that was in part because Mr Hunter has some talent in regard to production of Aboriginal art, a matter about which Mr Nicholson himself has an interest. He said that when he came to know Mr Hunter he formed a view that he was "leadership material". He confirmed that since being discharged from Rainbow Lodge, and currently, the offender has maintained close contact with one or other of the outreach workers who are attached to Rainbow Lodge. He also confirmed that, although there is a policy that after about two years from discharge, outreach contact is terminated, in fact in practical terms this does not happen and that in circumstances where a former resident seeks continued contact, such as in this case, contact will be maintained, and in fact, as he put it, it never ends. He also confirmed that upon Mr Hunter's release to parole, and provided there is space available, he would be welcomed back to Rainbow Lodge for further rehabilitation if he was so motivated.
14. The Court also has a letter from the Rainbow Lodge Program, which confirms that up until last week staff from Rainbow Lodge maintained contact with the offender on a weekly basis and that they are more than happy to have him re-join their program once he completes any mandatory sentencing. The report from Rainbow Lodge is a very positive one in the sense that it confirms that the offender took advantage of the benefits that were offered to him while he was a resident there, but the report goes on to note that, regrettably, once out on his own and once confronted with the relationship issues involving his ex-partner, to which I have referred already, he then began to struggle. The report goes on to note that although the offender agreed to go to a further rehab in late 2019, just before Christmas, by that stage the information that they were receiving was that Mr Hunter was too far gone back into his addictive behaviours and sleeping in parks and at that stage they were unable to get in contact with him. The author, Mr Townsend, of that report however goes on to note that in their view, having worked with the offender for a significant amount of time, he believes that if the offender sets his mind to something he can achieve it, but that he needs.to set his mind to learning about the disease of addiction. These are sentiments which accord with my own assessment of the offender.
15. The Court also has a letter from Mr Glenn Cook, who is a Bundjalung Elder, and speaks very highly of the offender and also confirms the history about the offender being given information by his former partner about the child supposedly not being his.
16. Finally, there is a letter from the offender's former football coach, which again speaks very highly of him as an honest, respectful and genuine person of good character who was extremely focussed when playing in the UTS Wanderers Rugby League Club in 2019. He confirms that, in fact, the offender was selected to play in the New South Wales University side against Queensland at the end of the 2019 season, which presumably occurred not long before, regrettably, the offender effectively went off the rails in late 2019. The football coach, Mr Olson, however notes that on release from prison they would welcome Mr Hunter back to the team.
17. The Court also has a Sentencing Assessment Report, which confirms much of the history I have recited already, including an acknowledgment by the offender of the negative impact of his behaviour on those who are affected by his offences. Overall, his risk of future offending was assessed by the author of that report as being medium to high and perhaps even towards the high range. In my view, in terms of his future risk of reoffending, that question will very much depend upon how focussed the offender can remain on addressing his tendency to revert to drugs or potentially alcohol and on his resolution and development of maturity such that he is able to comply with his own advice that he should pick up the phone and speak to people when he finds himself in difficult circumstances rather than reverting to drug use.
18. In my view, his prospects of rehabilitation are reasonable - guarded but reasonable. I do accept that he has shown a degree of remorse in his evidence today, which in my view showed a degree of insight not only into his own behaviour but into the likely impact of that behaviour on victims of his criminal acts.
19. His background is such that consideration needs to be given to the principles discussed by the High Court of Australia in Bugmy v The Queen [2013] HCA 37, 249 CLR 571.
20. It seems to me that while this is not a clear case of the type discussed in cases like Bugmy and the New South Wales Court of Criminal Appeal decision in Fernando and Ors (1992) 76 A Crime R 58 involving extreme abuse and deprivation, it is, nonetheless, a case where there has been in Mr Hunter's background a significant degree of depravation essentially by reason of the fact that he has never had any real relationship with his natural parents and does not know who is father is, combined with the fact that his adoptive mother suffered a stroke when he was still a very young infant. There is also the fact that although he was raised by his adoptive father, his adoptive father was not somebody who was able to provide him with any of the cultural learning or background that otherwise might have been provided to Mr Hunter if circumstances had been different. In addition, there is the fact that when Mr Hunter was only a teenager he was effectively cut off by his adoptive father with whom he no longer has any real relationship.
21. I was taken to the decision of New South Wales Court of Criminal Appeal in Kentwell v The Queen (No. 2) [2015] NSWCCA 96. That was a case where the offender's background was one which had some parallels with Mr Hunter. Having regard to all of the evidence, it seems to me that, as I have said while not a case which is on all fours with the principles in Bugmy v The Queen, Mr Hunter's background is one that does involve significant cultural depravation and significant depravation in his family upbringing. In my view, that background does reduce his moral culpability to some degree, but importantly it is also a significant factor to be taken into account in assessing his future prospects and the overall sentence to be imposed in this case.
22. There is also in this case the factor of a risk of institutionalisation. As has been noted, Mr Hunter has spent approximately 70% of his adult life in custody, a matter which the Crown concedes. I, therefore, take into account in determining the appropriate sentence, the desirability of avoiding or minimising any such risk of institutionalisation. Of course, in saying that I still must have regard to the other principles of sentencing including deterrence and retribution and the others that are referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999.
23. There are four offences for which Mr Hunter is to be sentenced. Only three of them, however, carry terms of imprisonment. In determining the overall term of imprisonment, I need to give consideration to questions of totality and the question of the need for any accumulation on those offences which carry terms of imprisonment. I intend to impose an aggregate sentence for those three offences given that each of those three offences form part of a short crime spree associated with Mr Hunter's relapsing to drugs towards the end of 2019. It seems to me that each of those offences should be regarded as part of a course of conduct. In those circumstances, while there is a need for some accumulation among those three offences, in my view the extent of accumulation need not be great.
24. The offender has been in custody on these matters since 15 January 2020. However, part of the reason for his custody since then is that his parole on an earlier sentence was revoked effectively from 20 December 2019 due, in part, to these offences and in part, due to his failures to comply with supervision from about 5 December 2019. Part of his custody has also been due to a term of imprisonment imposed by the Local Court in August of this year.
25. I have a discretion as to the date on which any sentence should commence. In my opinion the circumstances that led to the offender failing to comply with his parole reporting conditions are inextricably tied up with the circumstances that led to his offending in these cases. In other words, the destabilising events associated with his former partner claiming that he is not the father of her child. As I have already noted, a substantial reason for the revocation of his parole was the commission of the offences before this Court today. In those circumstances, in my view it would not be appropriate to backdate the sentences in this matter to the date of his arrest, but I am satisfied that some degree of backdating is appropriate.
26. I intend to impose an aggregate term of imprisonment. In doing so, I have had regard to principles of totality and the importance that any sentence that I impose on Mr Hunter should not be one which crushes any incentive for him to rehabilitate himself. He is, in my assessment of him, a person, who as Mr Nicholson put it, has a potential for leadership. He is a person who is somewhat impressive and who, as has been said about him in other documents, is someone who could achieve things if he does put his mind to them. I take all of those matters into account in forming the appropriate sentence.
27. I am satisfied that the s 5 threshold has been crossed, that is that no penalty other than full-time imprisonment is appropriate. I have had regard for the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
28. In setting the sentence I make a finding of special circumstances which I note was conceded appropriately by the Crown given the need for there to be a reasonably long period of supervision of Mr Hunter once he is released. In making that determination of special circumstances I have not overlooked the fact that he has in the past received the benefit of findings of special circumstances. However, in my view, notwithstanding his relapse in late 2019, he is a person who has the potential and reasonably good prospects of bringing himself out of a cycle of reoffending, and it is, in part, for that reason that I make this finding of special circumstances. As I have said, I impose to impose an aggregate term of imprisonment for the offences described in sequences 1, 5 and 8.
29. For the sequence 4 offence, which is the offence of driving while never been licenced, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 I convict the offender, but I impose no other penalty.
30. In relation to the other offences, I convict the offender. I will impose an aggregate term of imprisonment. The indicative terms that I would have imposed had I not imposed an aggregate term are as follows.
31. For the sequence 1 offence, after a 25% discount, a head term of three years two months.
32. For the sequence 5 offence, after a 40% discount, that is a combined discount of 25% plus 15% on account of the Ellis discount, a head term of two years six months.
33. For the sequence 8 offence, taking into account the matters on the Form 1 document and after a 25% discount, a head sentence of two years seven months.
34. The aggregate sentence I impose is one of a head sentence of four years three months, and a non-parole period of two years six months.
35. Each of those will date from 20 April 2020.
36. The head sentence, therefore, will expire on 19 July 2024. The non-parole period will expire on 19 October 2022.
37. In relation to the sequence 1 offence the indicative non-parole period is 22 months, and the indicative non-parole period for the sequence 5 offence is 17 months.

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