R v Hurley

Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146
Bugmy v R [2013] 249 CLR 571
R v VR [2025] NSWCCA 36
TM v R [2023] NSWCCA 185

Category: Sentence

Parties: NSW DPP – Crown
Michael Paul Charles Hurley - Offender

Representation: Mr A Barnes for Crown
Mr S Bouveng for Offender

File Number(s): 24/122276

remarks on sentence

1. Mr Michael Hurley is for sentence in relation to two substantive offences, those being as follows: The sequence 6 offence, which is one of breaking and entering a dwelling house with intent to commit a serious indictable offence of larceny, in circumstances of aggravation, namely knowing that a person was in the premises. That is an offence under s 112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. Furthermore, a standard non-parole period of five years is specified.

2. In dealing with that offence, he asks that I take into account, which I will, on a Form 1 document, four other offences set out on that document.

3. The second substantive offence is the sequence 9 offence of breaking and entering a dwelling shed with intent to commit a serious indictable offence of larceny, in circumstances of aggravation, namely that he was in company with another person. The maximum penalty for that offence under s 113(2) is 14 years imprisonment.

4. The maximum penalties and, where applicable, standard non-parole periods are, of course important guide posts in the sentencing exercise to which I have had regard.

5. The offender pleaded guilty at the earliest opportunity and will be given a 25% discount by reason of the utilitarian value of those pleas of guilty.

FACTS

6. The facts of the offences, including the Form 1 matters, are set out in an agreed document and, in summary, are as follows:

7. Between 12.30am and 4.30am on 25 March 2024, an unknown person entered some premises in Bushland Street, Tamworth and stole a handbag containing the keys to a 2023 Land Rover Defender, which is said to have been valued at about $120,000, which was then driven from the location. That vehicle was reported stolen to police on that morning.

8. Two days later, on 27 March 2024, police attended an address in Tingira Street, Tamworth and conducted a search pursuant to a search warrant and there they found the stolen vehicle. The offender was at that location also.

9. Police found two videos on the offender’s mobile phone, which showed him as a passenger in the stolen vehicle at around 5am on 25 March 2024. Also, his fingerprint was found on an external passenger window of the car.

10. Those are the facts of the sequence 1 offence, which is set out on the Form 1 document.

11. The facts note also that, while executing the search warrant at Tingira Street, Tamworth, on 27 March 2024, police found a .22 long rifle calibre bolt action rifle in the main bedroom of the residence. They also found a video on a phone of somebody who lived at the house, which depicted this offender holding that firearm whilst on a bed. That video was dated 20 March 2024. The facts note that the offender was not a holder of a firearms licence or permit which authorised his possession or use of any firearms.

12. Those facts are the facts relevant to the sequence 2 offence which is on a Form 1 document.

13. The facts then go on to describe the sequence 9 offence, which is one of the substantive offences for which the offender is to be sentenced. Those facts are as follows:

14. Around 5.22am on 31 March 2024, CCTV at some premises in Edgeroy Street, Tamworth, captured the offender and another male approaching those premises, holding objects. This offending was holding a golf club. The home owners were not present at the home at that time.

15. The offender and the other male attended the back of the property and looked through some windows. The offender and the other male then attended a shed at the back of the property that was secured, and they broke into the shed. The facts do not describe any items having been stolen, however. Testing of the area later identified the offender’s DNA profile.

16. As I say, those are the facts of the sequence 9 offence.

17. The facts then go on to describe the sequence 10 offence of entering land armed and with intent to commit an indictable offence, which is to be dealt with on a Form 1 document. The facts are as follows:

18. At approximately 1am on 1 April 2024, CCTV captured the offender approaching the front door of some premises in Hilda Street, Tamworth, armed with a crowbar. After a short period of time, however, the offender left the premises without breaking in or stealing anything.

19. That then brings me to the facts of the sequence 6 offence, for which the offender must be sentenced. That offence occurred just a few minutes after the events that I have just described and relate to premises that appear to have been next door to the premises that I have just referred to.

20. CCTV captured this offender opening the front gate of the house, in Hilda Lane, Tamworth, still armed with a crowbar. There he removed a flyscreen from the front lounge room and gained entry into the residence by the window at the front of the property. Once inside, the offender searched through the property while the female homeowner and her children slept inside. The offender spent about an hour inside the residence while the victims were sleeping and he did not leave until about 2.04am.

21. While inside, the offender stole a moneybox containing about $100 in coins, as well as a $100 note from a children’s bedroom, a football jersey valued at about $60 and some pain medications. Also, a can of alcohol had been removed from a refrigerator, which the offender had consumed and had then left the empty can in a hallway. A swab from the drinking can was found to match the offender.

22. That then brings me to the sequence 7 offence of being carried in a conveyance without the consent of the owner, which is a matter to be considered on a Form 1 document. That matter occurred in the following circumstances:

23. In the early hours of 31 March 2024, a Toyota Camry had been stolen from out the front of some premises in Edgeroy Street, Tamworth. The registered owner realised the vehicle had been stolen not long afterwards and reported the matter to police.

24. At about 8.30pm on 2 April 2024, police observed the stolen vehicle and activated a pursuit. The vehicle eventually stopped and a number of occupants ran from the stolen car, one of them being this offender who got out of the front passenger’s seat of the vehicle and ultimately was apprehended and arrested.

25. Those are the relevant facts of the offences and the Form 1 matters.

OBJECTIVE SERIOUSNESS

26. It is important, of course, that I make an assessment of the objective seriousness of the offences to which the offender has pleaded guilty, those being the sequence 6 and sequence 9 and I have also, of course, made some assessment of the matters that are on the Form 1 document.

27. Commencing with the sequence 6 offence, which is the offence of breaking and entering a dwelling house and committing a serious indictable offence of stealing in circumstances of aggravation, namely knowing that persons were present. This is the most serious offence before the court, it seems to me, which is confirmed by the maximum penalty and the specification of a standard non-parole period. Offences of this kind must obviously be treated very seriously, especially given the invasion of the safety and privacy of a person’s home that such an offence involves. Not all offences of breaking and entering involve residential premises. In this case, not only was the building a residential house, but the owner and her children were asleep inside, which obviously raised the risk of a frightening confrontation. That risk was increased by reason that the offender spent about an hour inside the premises, during which time he was armed with a crowbar.

28. On the other hand, the nature of the offence, being larceny or stealing, which was committed inside the premises, is one that is towards or at the lowest end of serious indictable offences.

29. The amount of property taken was fairly limited but not trivial. Whilst a flyscreen was removed, there is no suggestion that there was any damage done as such to the property.

30. While there was some degree of planning involved in selecting the premises and being armed with a crowbar, I regard the planning to be minimal and the offending was, as counsel for the offender remarked, somewhat amateurish, the offender allowing himself to be recorded on CCTV and leaving behind his DNA.

31. In my view, the objective seriousness of this offence lies below the mid-range but is not in the low range, especially given the amount of time that the offender was in the premises.

32. There are four matters to be taken into account on a Form 1 document. I have had regard to the facts of those admitted matters and the potential maximum penalties that would have been applicable if they were being dealt with as substantive offences. I note, however, that for three of them, those being sequences 1, 2 and 7, these came to this Court pursuant to s 166 of the Criminal Procedure Act 1986 and that these three matters would, therefore, have been subject to the Local Court jurisdictional limit of two years imprisonment.

33. As was noted in the well-known 2002 case of Attorney-General’s A**pplication under s 37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146*,* a court is entitled to take into account matters on a Form 1 document, in either or both of two ways: Firstly, to reflect the need for personal deterrence, which the commission of other offences will frequently indicate; and secondly, to take into account the community’s entitlement to extract retribution for serious offences.

34. This is not, however, an automatic process and it is really a matter for the assessment of the individual sentencing judge as to whether either or both of those matters should result in some increase in the ultimate sentence to be imposed for the relevant offence.

35. In this regard, and as noted by the Crown, the two offences of being carried in a conveyance were not particularly serious, given the relatively short period of time that the offender was in each vehicle.

36. In relation to the sequence 10 offence of enter land with intent, this was, as the Crown submitted, an offence committed just before the sequence 6 offence and was effectively part of the offender looking for a suitable property to break into. It did not involve any actual entry, which places it towards the lower end of seriousness.

37. The sequence 2 offence of possessing a firearm without authority must be treated with some seriousness, as all firearms offences must be. However, it seems to me that it is towards the lower end of the scale of objective seriousness.

38. As I have said, while Form 1 matters do not automatically result in an increase in the sentence for substantive matters, I am of the view that, in this case, the Form 1 matters should result in some slight increase in the sentence, given that they involve separate criminal acts to the substantive sequence 6 offence. When I say “some slight increase in the sentence”, I refer, of course, to what will be the indicative sentence that I will announce in respect of the sequence 6 offence at a later stage in these remarks.

39. The sequence 9 offence of breaking and entering into the shed, being in company with another offender, must be treated seriously, given that it involved a building attached to residential premises. The offender was also armed with a golf club, but fortunately there was no confrontation, as the occupiers were not at home. The offending did not involve any real planning and was rather amateurish, with the offender again being caught on CCTV and again leaving behind his DNA.

40. The serious indictable offence of stealing was in the lowest range of offences and there is no evidence that any property was actually taken. I regard this as an offence that is towards the lower range of objective seriousness.

41. The original Crown written submissions, which were not drafted by Mr Barnes who appeared for the Crown today, suggested that the objective seriousness of the two offences could be assessed having regard to the fact that the offender was on parole and that at the time he had a lengthy criminal history of similar offending. While these matters are relevant in the overall sentencing exercise, they are not relevant to my assessment of objective seriousness.

42. The written submissions of the Crown also suggested that the offending involved an “ongoing series of criminal acts”. However, I do not assess the two offences before the court as fitting into that description.

43. The Crown written submissions also suggested that the court would take into account the offender’s plea of guilty in assessing the objective seriousness. While this is a highly relevant matter on sentence, it does not inform the objective seriousness of any offence.

44. I understood the Crown, in oral submission today, to accept the correctness of the propositions that I have just set out.

45. While the fact that the offender was on parole and has a history of similar offences is not relevant to the objective seriousness of any offence, these are significant matters that I must take into account in the overall sentencing exercise. They are important, particularly in terms of personal and general deterrence and the protection of the community.

46. SUBJECTIVE MATTERS

47. I turn then to subjective matters relating to the offender himself.

48. The offender’s subjective case is before the court by means of the psychological report of Ms Ivanka Manoski.

49. He is now aged 23. The report notes that he is a First Nations man who is the younger of two children born to his parents’ relationship. He was born and raised in Narrabri with his parents and older brother. However, the parents’ relationship ended when the offender was a teenager. The offender was exposed to domestic violence in the home, especially when his father was intoxicated, and he reported to the psychologist that the worst event was when he was about eight years old and his mother was rendered unconscious. Police attended the family home to remove his father, who would often return to the home and perpetrate further discord and violence. His father, apparently, was gaoled at some stage due to domestic violence offences.

50. The offender was also exposed to violence, racism, crime and substance abuse in the areas where he lived, and recognised, when speaking to the psychologist, that this sort of anti-social behaviour became normalised for him. His family life and school attendance were unstable and disruptive and the offender, at times, lived with relatives.

51. He left school in Year 10 and told the psychologist that he believed he was diagnosed with Attention Deficit Hyperactivity Disorder. He reported two particularly significant negative events that affected him at a young age.

52. When he was 11 or 12 years old, he attended with his family at the home of his maternal grandmother, only to find that she had passed away. This event was not handled well by his family, and it was not discussed, and the offender started using cannabis to cope.

53. Another significant negative experience was when he was about 15 or 16 and he was sexually assaulted on two occasions whilst in Juvenile Justice custody.

54. Despite his violent and disrupted family life, largely due to his father’s actions, the offender now reports having a good relationship with both parents. I note that his mother and another friend or relative are present in support of him today.

55. The offender has no real history of employment and has been an habitual user of various drugs from a young age. He told the psychologist that he committed the offences before the court so as to obtain drugs and to support himself. Troubling is the fact that he also told the psychologist that he enjoyed the “thrill” and justified his offending somewhat by saying that he had to offend, as he was not going to walk around the streets “starving”.

56. Ultimately, the psychologist concluded that the offender does not currently meet the criteria for any clinical disorders in the Diagnostic and Statistical Manual of mental diseases 2022 version. She says that mental health did not appear to be a factor associated with the offences before the court, which were committed, she says, to obtain money and to support the offender’s lifestyle. She did conclude, however, that the offender meets the criteria for Anti-social Personality Disorder and Stimulant Use Disorder.

57. As already noted, the offender has a history of multi-drug use from a young age and has been diagnosed with Stimulant Use Disorder. He has previously commenced rehabilitation programs but has not completed any, although he claims he is open to engage with rehabilitation in the future.

58. Relevant to his risk of reoffending is the fact that, as noted in the psychological report, the offender continues to remain in contact with a group of people who he calls “brothers”, and who tend to be involved in crime. It is of concern that the psychologist noted that the offender did not appear to understand the association between his anti-social contacts and his commission of offences.

59. On the positive side, the offender continues to have the pro-social support of his girlfriend, with whom he says he can live upon his release and, as I have already noted, he continues to have the support of his parents.

60. The offender’s girlfriend is reported to be a person who tries to discourage him from hanging around with anti-social peers. However, this relationship is a somewhat “on and off” relationship.

RISK

61. Ultimately, the psychologist concluded that the offender presents with a very high risk of general re-offending. In my view, this is, regrettably, a fairly realistic assessment. I think the offender is a considerable risk of re-offending and I am not able to form a favourable view of his prospects of rehabilitation.

REMORSE

62. In terms of remorse, the psychologist’s report notes that, although the offender said he “felt bad” about his offending and that he “wouldn’t like it if it happened to me”, she noted that he impressed as being “shallow in his remorse”. In my view, any remorse in this case is, at best, minimal.

BUGMY

63. I have earlier set out a summary of the offender’s background. His childhood was such that invokes the principles in Bugmy v R [2013] 249 CLR 571. I consider also that his experience of childhood sexual abuse adds to the relevance of those principles.

64. In Bugmy, it was said that,

“An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

65. In referring to that passage from Bugmy, I am conscious, of course, that none of the offences before the court involve direct violence. Nonetheless, the general principle relating to difficulties in impulse control remains highly relevant.

66. The relevance of child sexual abuse was also discussed in the relatively recent case of R v VR [2025] NSWCCA 36 and I have had regard to the principles set out by her Yehia J, at para 78 of that decision.

67. In this case, while I do not think that there is any direct connection between the offender’s childhood experiences, the sexual abuse and the offences before the court, I do accept that these things made a contribution to the behavioural norms of the person now before the court and reduced his capacity to make sensible and considered decisions. They made him more likely to engage in drug taking and risk taking and to have a reduced capacity for empathy. These are matters that reduce the offender’s moral culpability to a material degree.

YOUTH

68. There is also the offender’s relative youth. He is 23 now and was only 21 at the time of the offences. As was noted in the recent case of TM v R [2023] NSWCCA 185, youth or relative youth is also relevant to the assessment of moral culpability. It is a separate consideration to an offender’s deprived or traumatic background. The offender is not a child or youth but he is still fairly young. I consider that this also reduces his moral culpability, to some degree, by reason of his less than fully developed capacity to make mature and sensible decision and think through the consequences of his actions.

69. However, and having made these findings of reduced moral culpability, based on youth and Bugmy type factors, I remain mindful of the need to consider whether the offender’s reduced capacity for self-control and for making pro-social decisions is a matter that increases his risk of re-offending, such that community protection must be given greater weight.

70. In my view, this is an important factor here, especially given my findings about the offender’s risk of re-offending.

71. In conclusion then, while the offender’s moral culpability is reduced, I have balanced this against the important aspect that he continues to be, in my view, a material risk to the community of committing serious offences in the future.

DETERMINATION

72. In determining the ultimate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. All of the matters referred to in that provision are of importance, subject, of course, to what I have said about the reduction in the offender’s moral culpability which, to some degree, decreases the importance of personal deterrence.

73. As I have said, all of those factors remain of relevance, as does, however, the protection of the community and also the need to provide for rehabilitation, so far as the court can, of this relatively young offender.

74. I am satisfied, for the purposes of s 5 of that Act, that no penalty other than imprisonment is appropriate for the two offences that the offender must be sentenced for.

75. In determining the ultimate sentence and the indicative sentences, I have had regard to statistics kept by the Judicial Commission to which my attention was drawn, to the extent that those fairly blunt pieces of information can provide assistance.

76. I intend to impose an aggregate sentence, given that there are two matters to be sentenced.

77. I make a finding of special circumstances for adjusting the ordinary ratio between head sentence and non-parole period, based on the need, as noted in the psychological report, for a significant period of monitoring on parole and based also on the risk of institutionalisation.

78. I need to indicate the indicative sentences and I will do that now. These are not the ultimate sentence. The ultimate sentence I will make clear in just a moment.

79. The indicative sentences, after 25% discount for the plea of guilty, are as follows:

80. For the sequence 6 offence, and taking into account the Form 1 matters, a head sentence of two years, two months. A non-parole period of one year and nine months.

81. For the sequence 9 offence, the indicative term is one year, 10 months .

82. Given that there are two substantive offences for which the offender is to be sentenced, I have had regard to totality principles. While the two offences were committed in close proximity in terms of time to one another, nonetheless they involve separate decisions and distinct criminal incursions. In my view, this needs to be recognised and there needs to be some degree of notional accumulation in setting the aggregate sentence.

83. Mr Hurley, if you would just stand and I will announce the actual final sentence.

84. I impose a head sentence of three years, two months. I impose a non-parole period of two years, two months.

85. I have given careful consideration to the date upon which that sentence should commence. The offender has been in custody since 2 April 2024 . However, his time in custody has not been due solely to the offences before the court. That is because his parole for previous offences was revoked as from 25 March 2024. He has, therefore, since his arrest on 2 April 2024, been both serving the remainder of that sentence and awaiting sentence for the current matters. I have a discretion to exercise.

86. While counsel for the offender submitted that I might backdate the sentence fully to 2 April 2024, he candidly conceded that that was a somewhat optimistic submission. The offender’s current sentence does not expire until 20 August 2025.

87. In my view, the appropriate course is to backdate the current sentence for part of the period between 2 April 2024 and today, by about eight months.

88. The sentence will, therefore, commence on 12 September 2024. The head sentence will expire on 11 November 2027. The non-parole period will expire on 11 November 2026.

89. I direct that a copy of the psychological report of Ms Manoski be sent to Corrective Services and to Justice Health.

90. I further recommend that the offender be given favourable consideration for inclusion in programs, such as those referred to in para 46 of the psychological report.

91. Mr Crown, Mr Bouveng, anything to raise about any of those numbers or anything else?

92. BARNES: The numbers seem correct to me, your Honour.

93. BOUVENG: I agree, your Honour.

94. HIS HONOUR: Thank you. Mr Hurley will have to be taken back into custody.

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