R v Jonathon Hancocks

District Court of NSW|2020-07-02|Before: Spigelman CJ

Contents Judgment Introduction Form 1 procedure Standard non-parole period The facts Objective seriousness Section 21A. Subjective case Psychologists report and Sentencing Assessment Report Criminal record Covid 19 Parity Special circumstances Sentencing considerations Orders

Introduction

Jonathon Hancocks, the offender, appears for sentence on one count of reckless wounding in company under s35(3) of the Crimes Act. The maximum penalty is 10 years imprisonment and there is a standard non-parole period of 4 years. Additionally there is an offence to be dealt with under the Form 1 procedure. That is an offence of affray under section 93C(1) of the Crimes Act which has a maximum sentence of 10 years.
The offender was born on 7 February 2000 and so is presently 20 years old. The date of the offending is 1 January 2019 so that the offender was 18 years old at the time of the offending. The offender was arrested for this matter on 18 July 2019, at which time he was in custody after being arrested on 14 January 2019 for breaching appeal bail. He has been in custody solely in relation to this matter since 31 October 2019.

Standard non-parole period

The standard non-parole period is a guidepost in the same way as the maximum sentence may be considered a guidepost. . The matter is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock v The Queen [2011] HCA 39 at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than 4 years. Division 1A of the Crimes (Sentencing Procedure) Act requires sentencing judges to state fully the reasons for arriving at the sentence imposed

The facts

In company with the offender at the time of the offending was Amaroo Davis, who was sentenced two days ago on 30 June 2020. It will be necessary to refer to that matter in relation to the issue of parity below. The agreed facts in that case were in almost exactly the same terms, but with some differences that should be noted. It assists to simply reproduce my summary of those facts, followed by highlighting the differences. That summary was as follows: The agreed facts form part of exhibit A. A number of young people attended a New Year's Eve party in 2018. Some of the young people moved onto the Toormina soccer fields to bring in the New Year. In the vicinity were members of a group known as the Coffs Koori Boys or CKB. Shortly after midnight a fight broke out between the partygoers and 2 of the CKB including Hancocks. The 2 CKB members came out for the worse and left saying they would be back. Subsequently there were 2 incidents. The first occurred when 4 or 5 CKB members including the offender arrived at the scene and got out of the car and began assaulting the partygoers, got back in the car and left. The second incident occurred about 3 minutes after the first when a second vehicle arrived followed by the same vehicle as in the first incident. About 8 males got out of the 2 vehicles including the offender. Some were carrying golf clubs and metal poles and the co offender Davis was carrying a knife in each hand. There is no evidence the offender was carrying a weapon. The males approached a different group of partygoers, including Jarred Massaad and Bailey Morgan. The offender began assaulting Massaad, after Massaad had said "Johnno, it wasn't us". These facts support the affray charge against the offender. The co-offender ran towards a person named Bailey Morgan holding the knives out in front of him. Morgan sheltered inside a house and the co-offender ran off when challenged by the occupant. The co-offender then held 2 knives towards approached Massaad and said "yeah come on". At this point it was only the co-offender and the offender immediately near Massaad. Massaad was then struck with something to the left side of his jaw, knocking him to the ground. Whilst on the ground the offender and co offender and others kicked, stomped on and struck Massaad with objects causing a wound to his head, and it is this conduct that founds the reckless wounding in company offence. This continued for 30 to 45 seconds. A nearby resident ran to the scene and told the males to "piss off" which was met with the reply "fuck off you white cunt". The resident replied "who are you calling a white cunt I'm a fucking black fella". The assaulting ceased and the males returned to the vehicles and left.
The injuries suffered by Massaad were a compound fracture to his middle finger requiring surgery and the insertion of a wire, a nail on a finger had to be reattached, his wrist was broken and the wound to his head required four staples.
The most significant difference in the present agreed facts to those of the co offender Davis is that it was submitted on behalf of Davis, and accepted by me, that the facts did not show Davis to have actually struck Massaad. Davis, and the offender are legally responsible for the reckless wounding on the basis of the conduct being a joint criminal enterprise. On the separate question of an offender's culpability it is necessary to give closer consideration to an offender's actual conduct; see KR v R [2012] NSWCCA 32, where Latham J said at [19]:
What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct
The present agreed facts seem to read as if the offender did actually strike Massaad: "while on the ground the two offender and others began kicking". It was accepted on behalf of the offender that this was so, in my view quite rightly. This results, all other things being equal, in the culpability of the offender being greater than that of Davis.

Objective seriousness

This is a charge of reckless wounding in company. To wound involves the breaking of the skin. The agreed facts here are that the skin of the skull was broken such as to require 4 staples. My view is that could not be described as a minor injury, nor could the injury to the wrist, albeit not a wounding. Furthermore the circumstances in which it was afflicted displayed absolute disregard for the well-being of the victim, as demonstrated not only by the wounding but also by the other injuries. At a time when the victim had fallen to the ground the offender and his companions kicked and struck the victim. The man Massaad was defenceless and posed certainly by the time he was on the ground no threat whatsoever to anybody.
The prelude to the attack, of having picked a fight and lost and returning with greater numbers, adds to the objective seriousness of the matter.
My view is that this offence is in the mid range of objective seriousness.
I would assess the form 1 matter as being in the low range of objective seriousness in all the circumstances of the matter and given the nature of the offence of affray. The facts do not disclose any particular concern caused to the public by the conduct, though the facts do disclose that residents of the area were about, and the conduct clearly would give rise to apprehension and fear. I note that unlike in the case of Davis the offender in this case was not brandishing knives at the time of the affray offence.

Section 21A.

An aggravating matter is that the offender was on bail at the time of the offending. This is not a matter which touches on objective seriousness but rather is a matter that affects considerations of punishment and deterrence and protection of the community; see Field v R [2020] NSWCCA 105. The actual or threatened use of weapons is also an aggravating feature.
As to mitigating factors the offender pleaded guilty in the local Court and is entitled to the 25% discount. The offender also relies on the fact that there was little planning, and that the offender has expressed remorse.
In terms of planning I do not think that assists the offender. I have taken into account in assessing objective seriousness the fact that the offender returned to the scene of the offence having previously lost the initial fight there.
As to the expression of remorse I will consider that in light of the psychologist report.

Psychologists report and Sentencing Assessment Report

The offender relied on a report dated 22 June 2020. That report sets out the offender's life history date. The Crown accepted the evidence bears out that the offender has a background of social disadvantage such that for reasons explained in Bugmy v The Queen [2013] HCA 37 it serves as a mitigating feature. This is because his background is such that the offenders culpability is less due to the fact that he has both witnessed and experienced significant abuse in his young life. Furthermore on the unchallenged material he has had seemingly no pro social male adult role model at any stage of his life and has had with the notable exception of his caring Auntie who gave evidence, Ms Carberry, no ongoing continuing adult caregiver.
This history is perhaps best summarised at paragraph 39 of the psychologist's report. It states that the offender was kidnapped by his father at a very young age for 2 years though other evidence suggests that a meeting later in life with his father was his first recollection of his father. He was then sent to live at Coffs Harbour with family members he did not know and was shortly after removed by the then Department of community services and spent the next 3 years in 6 foster homes before his aunt I presume Ms Carberry became his carer. This lasted till age 13 when he moved to his Cairns family but was rejected there leaving him homeless and in bush camps on his own at the age of 14. The report records a history of sexual abuse by foster carers and physical abuse by relatives. He was exposed to substance abuse and violence by caregivers and family. The Crown bundle included a document from Queensland showing offending at the age of 14 there. As I understand the evidence not long after that he was back with his aunt.
The offender's antisocial behaviour had well and truly commenced by mid adolescence. His closest associates his cousins and uncles abuse alcohol and other drugs and encouraged him to do so. He is described by the psychologist as generally disconnected and as seemingly a product of his environment and he now impresses a sceptical and suspicious of authority, lacks direction and has few skills to manage the legacy of his developmental experiences. He considers according to the psychologist that violence can be used to address problems. He appeared to the psychologist to be somewhat hopeless about his prospects and to maintain a permissive view of crime and criminal conduct.
Despite this Mr Hancocks did state that violence is no good though this seems to be due to it resulting in his incarceration rather than for any more insightful reason. Significantly in 2018 he was granted appeals bail to attend the Balund-a program. His custody record shows that he was admitted to that program on 10 November 2018 and was released from it on 5 December 2018. The offender described that intervention as unhelpful. Nowhere in the evidence is there any explanation for why that might be so.
As to his drug and alcohol history the sentencing assessment report states he has a history of daily illicit substance use but has been abstinent since entering custody where he has now been for some 15 months. In the sentencing assessment report he acknowledged his level of aggression and violent behaviour is linked to his use of alcohol and drugs. That report says his alcohol use increased to daily consumption and intoxication and that he was under the influence of drugs and alcohol at the time of the offending. On a more positive note he has been able to cease using cannabis prior to incarceration so that there are 2 examples of him becoming abstinent. There is no evidence of just how intoxicated or affected by drugs he was on the day of the offending but I accept that he had some degree of intoxication.
The sentencing assessment report under the heading attitudes says the offender continues to blame the victim though he also partially blamed family issues. He said that he was sensitive to being disrespected and did not like to lose face and considered his response in the circumstances to be somewhat justified although severe. He did say he did not intend for the victims to be seriously injured.
Whilst he said he was willing to engage in intervention his experience at the earlier intervention does not inspire confidence in that regard. Furthermore, he said he intended to reduce drug and alcohol consumption but not to cease it.
He was assessed as being a medium to high risk of reoffending. I accept that assessment.
In terms of remorse and contrition, it is difficult to make a positive finding in light of the regret seemingly stemming from the resulting incarceration rather than any considered acknowledgement of the wrongfulness of the behaviour. This is even more concerning when the evidence suggests that the victim was known to the offender. The most favourable view for the offender is to consider his expressions of remorse to be at best mild.

Criminal record

The criminal history of the offender is a significant one for a man of 20. In fact it appears from the custody record that the offender who is now 20 years and 5 months old has spent all but 4 months of his adult life in prison. His juvenile record suggests he spent time in custody before then. This supports the argument that a person of his background has a greater likelihood of becoming incarcerated than somebody who did not suffer the same social disadvantage.
The criminal history begins in 2013 so at the age of 13 with assaulting a school staff member and later that year resisting an officer and also aggravated break and enter. In 2014 there were offences in Queensland. In 2015 is a matter of larceny, and assault occasioning actual bodily harm, common assault and damage property. In 2017 there were further assault matters as well is an armed with intent to commit an indictable offence. In 2018 there was assault occasioning actual bodily harm in company.
At the time of this present offending he was actually on bail for this last mentioned 2018 offence which occurred in March 2018. The only offending after the present offending occurred on 9 April 2018 of resisting an officer which led to a community correction order and an enter dwelling with intent to steal on the same date. For that he was sentenced to 13 months imprisonment starting on 9 May 2019 and concluding on 8 June 2020 with a non-parole period of 5 months.
Unlike in the case of Mr Davis there are no facts provided as to those 2 offences. Although it would seem likely that the offender may have been affected by drugs or alcohol, there is simply no evidence to support that. Furthermore the offence for which he received a custodial term was of a distinctly different character and did not involve violence. I touch on the totality principle below and in my view the argument for some degree of concurrency between the 9 April 2019 offending and the current offending is much weaker in this case than it was in the case of Mr Davis.
I have accepted that on the occasion of the present offending the offender was intoxicated to some degree. In my view by reason of the provisions of section 21A (5AA) this cannot be taken into account as a mitigating factor. I do not understand the submission of the accused to be that it should be taken into account as a mitigating factor. It was submitted that the offender was intoxicated at the time, which I accept, and that this impacted on his ability to plan and may be a relevant factor for sentencing purposes in that regard. I do not accept that submission in this case due to the absence of any evidence of the degree to which the offender was intoxicated on the night of the offending. There was such evidence in the case of Mr Davis.

Covid 19

I accept that the current conditions in custody are more arduous for offenders than in nonpandemic times. There was no particular evidence as to how this impacted on the offender and no evidence of visits not being able to occur which would otherwise have occurred. It is nevertheless something I give some weight to it.

Parity

I need to ensure that the sentence I impose on Mr Hancocks is not one that could lead a legitimate sense of grievance to either he or Mr Davis. It was submitted that the case of Mr Davis was more serious as he was brandishing a knife in each hand at the time of the offending. There is merit to that argument. Overall however I consider the culpability of the offender Mr Hancocks to be greater. This is because it was he who instigated the entire incident at his first attendance at the soccer fields. He then returned with the other people including Mr Davis and in my view on the facts he plainly led the assault on Mr Massaad. On the material on which Mr Davis was sentenced I could not make a finding that he actually laid a blow on Mr Massaad. That finding is open in the present case against both Mr Hancocks and Mr Davis though not to the extent that I could say that Mr Davis had used the knives. In Mr Davis's case the use of the knives was prominent, indeed fundamental to the case of affray.
In Mr Davis's case I also took into account the principle of totality due to the fact that he had committed an offence just 6 weeks after this matter and the custodial consequences arising from that in terms of his overall head sentence and non-parole period.
In this case the custody matters do not quite so favourably effect Mr Hancocks as I have discussed above in connection with the criminal history.
The conclusion I come to is that the sentence for Mr Hancocks needs to be greater than it was for Mr Davis and that this would not cause either of them a justifiable sense of grievance.

Special circumstances

In my view the benefit to the offender in the sentencing process by reason of his background and his youth is best reflected by a finding of special circumstances. There is plainly a need for supervision of a lengthy period to try and instil in the offender some life skills to enable a pro social life. The purposes of punishment which pull in different directions in my view are most appropriately achieved by a term which involves a lengthier parole period than may otherwise be the case.

Sentencing considerations

There is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA.
Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
The purposes that attract the most attention in the present case in my view are protection of the community and rehabilitation.
The offender does not have a good subjective case with 2 exceptions. The reason I consider the subjective case is not a good one is because of a marked lack of insight by the offender. This is reflected in a number of ways. That he seeks to blame the victims for this offending is a frankly perverse way to view the situation. The suggestion that somehow he had lost face such that it was necessary to return with 7 other people to redeem himself is an unacceptable approach and plainly antisocial in the circumstances. The fact of the matter is that this man caused the initial incident and mindlessly returned to continue on violent illegal behaviour. The lack of insight is also reflected in the failure to fully take up the opportunity of attending at Balund-a. The offender is plainly in great need of assistance yet it is very difficult to provide that where there is resistance to it as reflected it would seem by the Balund-a experience. It is also reflected in his apparent intention to continue to use illegal drugs as well as alcohol although apparently to a lesser degree than presently.
The two exceptions referred to above assisting the subjective case are the offenders background of social disadvantage, and the fact that he has demonstrated on two occasions an ability to maintain abstinence. The first was before incarceration and giving up cannabis, and the second is having remained abstinent in custody.
This offender is a very similar age to his co-offender Davis. The same submission as to this young man being at a crossroads in his life was put as was argued successfully for Mr Davis. The difference here is that Mr Davis had not had so frank an opportunity of commencing on the path of rehabilitation as has this offender. At the same time my view is that the level of social disadvantage experienced by this offender is greater than that experienced by Mr Davis. I do not view this case so much as one of being at the crossroads but more of one of just what steps can properly be taken to give the offender some prospect of gaining the skills necessary to lead a pro social life. I do note the evidence of Ms Carberry that his behaviour towards her has always been respectful. At the same time I need to consider the purposes of sentencing beyond rehabilitation to properly carry out this sentencing exercise.
I take into account favourably to the offender the fact of his youth. I accept the submission that was to the effect that the hope of the offender becoming pro social should not be given up on. There plainly needs to be some intervention. The difficulty on the facts of this case is that the one meaningful attempted intervention was unsuccessful and no satisfactory explanation for that has been given by the offender.
I also accept that that one failure should not mean that no other opportunities at rehabilitation should be provided. There has been no evidence as to what other non-custodial interventions could now be engaged in. The effect of this submission really is to argue for a greater period of parole taking into account the factors of youth and the need for rehabilitation. The argument against that is that on the facts it would appear unlikely that that could be successful and also the need to protect the community.
The purposes of sentencing require me to take consideration of matters beyond the personal circumstances of the offender. A victim impact statement was provided which showed that this offending has caused ongoing anxiety to the victim, resulted in him undergoing a three-month period of rehabilitation, and put back the commencement of that young man's carpentry apprenticeship by 3 months. The community is entitled to expect to be protected from this sort of antisocial behaviour and any sentence must take this into account.
Consistent with that the sentence must have a degree of denunciation and general deterrence. I do not consider personal deterrence to be as dominant in this case as it may be in others simply because I do not consider the offender is able to properly understand how out of keeping his behaviour is with expected community standards.
The legislation requires that I state the reasons for the non parole period differing from the standard non parole period. This is perhaps especially so in this case given I have assessed the matter objectively to be in the middle of the range of seriousness. The non parole period will differ from the standard non parole period because of the 25% discount for the plea of guilty, the subjective matters addressed above and my finding of special circumstances.
The non-parole period for the offender in respect of the enter dwelling with intent to steal matter was 5 months expiring on 8 October 2019. In line with my comments above on this issue I consider the date of commencement for this current offending should be 8 September 2019 which allows a very modest discount due to applying the totality principle in considering the overall amount of time the offender is to be in custody in respect of the offending he has committed in all the circumstances discussed above.
What is concerning is that he has presently been in custody for 15 months and is presently 20 years old. Arguably the longer he remains in prison the more difficult his rehabilitation will be though that is somewhat speculative. I am of the view that his rehabilitation is better achieved under supervision in the community. Putting questions such as these aside my view is that there should be a minimum period of incarceration for this offence of 2 years with a balance of term of 2 years. In this case that would mean the offender will have been incarcerated for approximately 3 ½ years and at the age of 22 would have spent all but 4 months of his adult life in prison. I do not consider this to be in the best interests of the community at large or of the offender. For that reason I propose a non-parole period commencing on 8 September 2019 of 18 months expiring on 7 March 2021 and with a balance of term of 2 years expiring on 7 March 2023.

Orders

Taking all of the above matters into account, including the Form 1 matter and the 25% discount for the guilty plea, I arrive at a non-parole period of 18 months with a balance of term of 2 years.
I make the following orders: 1. Jonathan Hancock's, for the offence of reckless wounding in company you are convicted. 2. I sentence you to a non-parole period of 18 months to commence 8 September 2019 and expiring on 7 March 2021, with a balance of term of 2 years expiring on 7 March 2023. 3. I will make a further order that the psychology report of Ms Laura Dirkin dated June 2020 be forwarded to the relevant authorities to accompany the warrant I think is the expression or otherwise to make sure that they are aware of his circumstances as set out in that document.

Amendments 09 October 2020 - 09/10/2020 - Added Order 3 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2020

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