R v Stewart Hudson aka Anu

The sentence hearing

1. The sentence hearing took place on 17 May 2017.
2. The Crown Sentence Summary became Ex A on the sentence hearing. It contained a chronology of events as follows: DATE EVENT 1 October 2015 [Seq 2] Aggravated break & enter and steal at 90 Mima Street, Glenfield Park (H63865539) [Seq 15] Aggravated break & enter and steal at 1/14 Bulolo Street, Ashmont. 31 October 2015 [Seq 13] Attempt aggravated break & enter, with intent to commit serious indictable offence (steal) at 1/13 Bulolo Street, Ashmont. [Seq 14] Aggravated break & enter and steal at 3/13 Bulolo Street, Ashmont. Between 1 November and 2 November 2015 [Seq 17] Break & enter and commit serious indictable offence (larceny) at 45 Maher Street, Mount Austin. Between 1 November and 4 November 2015 [Seq 18] Receiving - Samsung mobile phone. [Seq 4] Aggravated break, enter and commit larceny in company at 147 Brooklyn Drive, Bourkelands. [Seq 5] Take and drive conveyance without consent - 2014 KTM 500 motorcycle. [Seq 7] Police pursuit [Seq 9] Police pursuit 4 November 2015 [Seq 6] Never licensed person drive [Seq 8] never licensed person drive [Seq 12] Resist arrest [Seq 11] Assault police officer in execution of duty [Seq 10] Possess housebreaking implements Arrested. Bail refused. 10 February 2016 Parole reviewed - revoked 13 April 2016 Committed for sentence - Sequences 4, 5, 7, 9 and 12. Sequences 6, 8 and 10 placed on a section 166 certificate 23 November 2016 Arrested and charged (H 63865539) 6 March 2017 Listed for trial - Wagga Wagga District Court 8 March 2017 Pleas of guilty entered - Sequences 11, 13, 14, 15, 17 and 18. Sequence 20 placed on a Form 1 in relation to Sequence 17. 10 May 2017 H 63865539 - Plea of guilty entered at Wagga Wagga Local Court. Committed for sentence.

1. Exhibit A also contained a Statement of Facts which may be summarised as follows.
2. At approximately 1am on Thursday 1 October 2015, the offender broke into premises at Mima Street, Glenfield, by gaining entry through the garage door. Before entering the premises, he rummaged through the victim's motor vehicle, which was in the garage, and once inside the premises, stole a handbag and Samsung S5 mobile phone.
3. The offender then returned to the garage, and using a pair of red pliers he found there, manipulated the locking mechanism of a gun safe. He stole the following items from the safe;

• 1 x Miroku 10 grade 1 "Under and Over Double-Barrel Shotgun" (valued at $3,975);
• 1 x El Gamo "Shadow 1000" rifle (valued at $495);
• 1 x Lithgow "1B" rifle (valued at $325); and
• Approximately $6,300 in cash

1. The total value of property stolen from the premises was approximately $11,695.
2. At approximately 7am that morning, the victim realised the items were missing and telephoned the police.
3. DNA recovered from the red pliers was a mixture that originated from at least three individuals, one of the victims, the offender, and another person. The offender was arrested and charged with this offence on 23 November 2016.

Sequences 13, 14 and 15

1. On 31 October 2015, the victim was at his home in Bulolo Street, Ashmont, when he heard someone kicking at his front door. The victim opened his front door and saw an Aboriginal male in a blue-coloured singlet, who later identified as the co-offender, Cutmore. The victim realised his garage roller door had been forced open, and property inside his garage disturbed. He then contacted police, who attended the location and were informed that the offenders had also broken into another unit within the same complex. That unit had been ransacked and two i-pads, a jewellery box and assorted jewellery were missing.
2. CCTV footage showed two male offenders at the location who were identified by their clothes and footwear. Police also received a report from another victim, who owned a unit nearby, stating that his property had been broken into on the same night. Entry had been gained by opening a bedroom window and a Samsung tablet had been stolen from the premises.

Sequence 18

1. On the morning of 1 November 2015, an unknown person gained entry into a home in Wren Street, Mt Austin. That person removed a Samsung Galaxy mobile phone, which was later found on the offender's person at the time of his arrest on 4 November 2015.

Sequence 17 - Break enter and commit serious indictable offence.

1. Between 11pm on 1 November 2015 and 7.10am on 2 November 2015, the offender entered premises at Maher Street, Tolland, and ransacked the home whilst the occupants were asleep. The offender removed house and car keys from the house and stole a 2009 Holden Captiva vehicle, registration number CHJ 20R from the outside of the premises, and left the scene.

Sequences 4 and 5

1. On the morning of 4 November 2015, the offender and a young person were sighted in the vicinity of premises at Brooklyn Drive, Bourkelands. They were observed to approach premises next door where they successfully gained entry into the house by smashing a rear laundry window. They then ransacked the premises before locating a KTM 500 motorcycle, registration OIT-42. The offender pushed the motorcycle out onto Brooklyn Drive, and started its engine. The offender then drove the motorcycle, with the young person sitting on the back of the motorcycle as a pillion passenger away from the premises.

Sequences 8 and 9 Police pursuit (two counts), never licenced to drive person (two counts)

1. The offender was sighted by police patrolling the area in marked police vehicles, who activated their warning devices. The offender sped away and engaged in a pursuit between Ashmont, Mt Austin and neighbouring suburbs for more than 45 minutes. The offender ignored the police lights and sirens, and continued riding the motorcycle in an erratic manner, crossing onto the incorrect side of the road and riding on footpaths. Police terminated pursuit on two separate occasions due to the nature of the offender's driving. At the time of these incidents, the offender was not the holder of a current New South Wales driver's licence, nor has he ever held a driver's licence in any jurisdiction. The offender stopped the motorcycle and proceeded on foot and was arrested shortly thereafter.

Sequences 10, 11 and 12

1. After being arrested, the offender kicked out twice, striking Constable Sharrock in the arm and chest area. Constable Sharrock instructed the offender to get on the ground, which instruction was ignored. The offender was searched by police and various items were located upon him, including a screwdriver, socks and a set of gloves.

The offender's evidence

1. The offender tendered a report of Ms Anna Robilliard, forensic psychologist, dated 9 May 2017 (Ex 1). Ms Robilliard interviewed the offender on 4 May 2017. The report contained the offender's family background, and educational, employment and relationship history. The offender is a 23 year old indigenous man whose father died when he was two or three years of age. He grew up on the Dareton Mission in the care of his mother, who drank a lot. He described the home as "pretty wild … there were people drinking a lot … our house was a gathering place … there was lots of fighting too". The offender reported that he used to go to his maternal aunt who also lived on the Mission, but did not drink or smoke.
2. From age 11 he spent time in boys' homes for juvenile offences. Since age 19, he has been in and out of adult custody, and has been on parole on two occasions. He completed one satisfactorily, and was two months short of completing his second period on parole, when he was re-arrested for the index offences. He has a de-facto partner and a 15 month old daughter.
3. The offender was diagnosed with Attention Deficit Disorder and hyperactivity in early childhood at about age three or four. He was placed on a medication regime which was ceased after he left school in year 9, and never re‑prescribed. He was educated to primary level at the Dareton Mission, and then attended Dareton High School, where he used to fight a lot. He has never had paid employment, although he completed a number of skills-based vocational training courses in juvenile detention.
4. The author reported that the offender drank alcohol a lot from the time he was in year 8 at school, at approximately 14 years of age. By age 16 he was a daily drinker. He reported using cannabis from 12 or 13 years of age, every day with his mates. Most of his prior offences were committed to support his perceived drug needs. At age 20, when he relocated to Wagga Wagga, the offender stated that he was introduced to methylamphetamine. Although he had had difficulty avoiding drug use in custody, the offender reported that he was adamant that he wanted to maintain abstinence from drugs in the future. He has not been involved in any substances rehabilitation. Following testing, the author reported that "the aetiology of his criminal behaviour could be largely associated with his perceived need to support his substance dependence". He has no mental health issues and did not demonstrate any symptoms of undue anxiety or depression. It was recommended that he would benefit from participating in courses encouraging pro-social habits and lifestyle, and controlling impulsive behaviour, including addiction.
5. The offender gave evidence, confirming his dysfunctional childhood on the Dareton Mission. He said that his mother drank a lot, and had people over who were drinking a lot. He was often too tired to go to school every day and witnessed drinking during the day and night, arguments and violence. The fighting took place between both males and females, or both. He confirmed that he started drinking alcohol at high school with his mates. He did not know what had happened to his father, who he had been told was a talented footballer and "a good bloke".
6. The offender said that living with his aunty was good, but he got into trouble because he was smoking cannabis. At the start of high school he was smoking cannabis daily. "It got out of hand", and he started stealing at age 14 or younger to support his habit.
7. The offender now wanted to live with his partner and look after their baby. When asked how he was going to change, he said that he would "find work or something". He acknowledged that he needed support to get work, but he felt bad about not seeing his daughter being born. Being a parent made him want to stop doing crime and drugs. He acknowledged Probation and Parole had helped him a bit, but when he became stressed he would go back to drugs. He was 16 years when he left school, having completed year 10, and can read and write.
8. In cross-examination, the offender agreed that he had not been charged with possession of drug offences at all. He had been charged with driving with illicit substances in his blood, and said he had used illicit drugs in custody "a few times".
9. He had left his mother when he started to get into trouble. However, he had continued to commit criminal offences, particularly breaking and entering houses and stealing property. Even when he was on probation, and bonds to be of good behaviour, he had breached these and continued to commit offences. Although he knew the Juvenile Justice support system was there to provide guidance and assistance, he had not sought help from them, or Probation and Parole.
10. He was asked about the present offences and his arrest on 4 November 2015. He said that he tried to get away from police because he was using drugs, however, he agreed that when police searched him, he had no drugs on him. He did not know whether he would have stopped offending if the police had not caught him.
11. In re-examination, the offender gave evidence that in October 2015 he was using ice daily. He would smoke one gram and consume the whole of the drug until there was nothing left. He had first tried ice when he was out with some mates in Wagga Wagga drinking. Before that he had smoked cannabis in a bong. It was his habit to have three or four bongs per day, which would cost him $20 each time, or close to $100 per day. He gave up smoking cannabis when he started to use ice.

The offender's submissions

1. Learned Counsel submitted that the offences were related to the offender's drug use, and were committed for the purpose only for funding his drug habit. He was now motivated to work to address his drug and alcohol dependency, and if he were to tackle that issue, there was some degree of hope for him. It was acknowledged that whilst in custody there was occasion where he used "Bupe". However, he had abused alcohol since he was 11 or 12 years of age. From age 16 he was drinking daily and he had had no rehabilitation opportunity as yet. Further, throughout his life he had been without guidance. There was no pro-social guidance during his formative years, his father having died when he was two or three, and his mother having abused alcohol on a daily basis. He had been exposed to violence and quickly went into juvenile detention. It was submitted that he needs to have the cycle of drug dependency broken. On a positive note, it was noted on assessment that he was not guilty of anti-social behaviour. His partner had remained supportive of him and was in regular contact, as was his mother. He now wanted to start life again to support his family.
2. It was submitted that the court would take into account the lifetime of deprivation suffered by the offender, relying on Bugmy v R [2013] HCA 37. There was ample evidence of his background, exposure to alcohol and drug abuse, and domestic violence on an almost daily basis. Further, his motivation for the offending was borne of his addiction to illicit drugs.
3. This was an appropriate case for an aggregate sentence pursuant to s 53A, however, any sentence should not be a crushing sentence for him. He was still a very young man, aged 23, and would require both rehabilitation and relapse prevention support. A finding of special circumstances should therefore be made, based on his need for guidance.

The Crown submissions

1. The Crown accepted that the offender had not had, what it described as an "ideal upbringing", and that there were elements of the Bugmy principle which would apply. However, the offender had been given many chances over the years and had not responded to any of them. Any sentence to be imposed needs to reflect the criminality of the offending here. In a period of six days, there was a large amount of criminal conduct which comprised offences where the total maximum penalties were approximately 100 years. Three of those offences carry maximum penalties of 20 years imprisonment with a Standard Non‑Parole Period of 5 years imprisonment.
2. It was submitted by the Crown that there was a need for specific deterrence here, as many of the offences had occurred whilst the offender was on conditional liberty.
3. The only difference in his life now was that he had a child. That, however, could not alleviate the court's task of reaching a proper sentence.
4. The Crown submitted that caution should be used in addressing the offender's evidence as to his drug habit. In his short criminal history, he had had 41 different arrests in which, except for one, there was no suggestion of involvement in drugs. There is no explanation for his conduct which is obvious.
5. The Crown submitted that an aggregate sentence was appropriate, however, the sentence must show some accumulation for the serial offending. Also important was general deterrence and denunciation of the offender's conduct.
6. The Crown submitted that specific deterrence looms large here because the offender had been incapable of breaking his cycle of offending. He needed an impetus to break that cycle. Further, his criminal history involved a number of offences of destroying property, which was indicative of anger management issues. This also was manifested in the assault police matters.

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. In assessing the objective seriousness of the offending here, I intend to assess the matters in the same chronological order as set out in [8] above.
3. Sequence 1, which occurred on 1 October 2015, was an offence pursuant to s 112(1)(a), and involved break and enter house, where he stole the three weapons referred to above, together with $6,300 in cash, as well as the owners mobile phone. This constituted serious offending, and was just below the mid‑range of objective seriousness for an offence pursuant to s 112(1)(a) of the Crimes Act 1900.
4. Sequences 13, 14, and 15, which occurred on evening of 31 October 2015, involved one course of criminal conduct, namely, three adjacent properties. At the first of those premises, no goods were stolen, and thus the offence pursuant to s 113(2) of the Crimes Act 1900 was at the lower range of objective seriousness for such an offence. At the second of those premises, where the premises were ransacked and two i-pads, a jewellery box and assorted jewellery were stolen, the offence was below the mid-range of the objective seriousness for an offence pursuant to s 112(2) of the Crimes Act 1900, but still constituted serious offending.
5. At the third premises (Sequence 15), entry to the victim's home was gained by opening a bedroom window and a Samsung tablet was stolen from the premises. This represented offending towards the middle of the low range of objective seriousness for an offence pursuant to s 112(2) of the Crimes Act 1900.
6. The objective seriousness of the offending for Sequence 17, involved the offender entering the victim's premises and ransacking the home whilst the occupants were asleep. The offender removed house and car keys from the premises and stole a Holden motor vehicle from outside the residence. It constituted serious offending pursuant to s 112(1)(a) of the Crimes Act 1900 and was at the bottom of the mid-range for an offence under that section.
7. The objective seriousness of Sequence 18, which involved receiving stolen property, namely, a Samsung mobile phone, was towards the lower end of the range of objective seriousness for an offence under s 118(1) of the Crimes Act 1900.
8. The offences that occurred on 4 November 2015 were serious criminal offending. Sequence 4 involved an aggravated break and enter of premises at Bourkelands where the offender and young person entered those premises, ransacking them, and then stole the KTM 500 motorcycle, registration number OIT-42 (Sequence 5). The objective seriousness involved in Sequence 4 was just below the mid-range of objective seriousness for an offence pursuant to s 112(2) of the Crimes Act 1900, and the objective seriousness in respect of Sequence 5, was just below the mid-range for such an offence, pursuant to s 154A(1)(a) of the Crimes Act 1900.
9. The offending involved in the police pursuits (Sequences 7 and 9) was serious offending, in which the offender was involved in two distinct high-speed pursuits, in which he ignored police warning devices and continued to ride the motorcycle in an erratic manner, crossing onto the incorrect side of the road and riding on footpaths. At the time he had a young person as a pillion passenger, and he was not the holder of a current New South Wales driver's licence. The objective seriousness of the offending was therefore within the mid-range for such an offence, on each occasion, pursuant to s 51B(1) of the Crimes Act 1900, but towards the lower end of that mid-range.
10. The offending in Sequence 12, resist arrest, involved the offender ignoring instructions from Constable Sharrock after being apprehended. The objective seriousness of the offending was within the low-range for an offence pursuant to s 58 of the Crimes Act 1900.
11. The offending in Sequence 11 involved the offender striking Constable Sharrock in the arm and chest. The objective seriousness of that conduct was in the low range for an offence pursuant to s 60(1) of the Crimes Act 1900.
12. The offences on the s 166 certificate, namely, (Sequences 6, 8 and 10), were all offences at the lowest end of the range of objective seriousness for such offences.
13. I have taken into account, as guideposts in the sentencing process, the maximum penalties proscribed for each of the offences set out above. Three of those offences, namely, Sequence 4, 14 and 15, also carry Standard Non-Parole Periods of 5 years imprisonment, which I have also taken into account as guideposts in the sentencing process.
14. I have also taken into account the principle of parity in respect of Sequences 13 and 14, where the co-offender was sentenced by Judge English on identical offences, as set out above, by way of indicative sentences of 12 months and 15 months respectively.
15. General deterrence is important in the sentencing process here. A clear message must be sent to like-minded persons in the community that Parliament has proscribed severe penalties for all of the offences with which the offender has been charged, and the courts will impose lengthy sentences of imprisonment in relation to them, particularly where there are numerous offences committed.
16. Specific deterrence is also important here, given the criminal history of the offender, and the number of offences in which he was involved.
17. There is no issue that the offender is entitled to a 25% utilitarian discount on sentence in respect of the offences in the first and third categories, referred to above. In respect of the second category of offences, pleas of guilty were entered on 8 March 2017, after negotiations which took place in the week prior to the commencement of a trial, and therefore the offender is entitled to a minimum discount of 5% on sentence.
18. I accept that the offending, which took place between 1 October 2015 and 4 November 2015, was borne of the offender's drug use. The offender had a lamentable criminal history, commencing in the Children's Court, involving offences of dishonesty, violence and numerous break and enter offences. Suffice to say, the record disentitles him to any leniency whatsoever. The focus, however, of the offender's submissions was the evidence of his dysfunctional upbringing, his exposure from an early age to alcohol abuse, drug abuse and domestic violence, and the effect of that lifetime of deprivation on his moral culpability for the offending.
19. These are significant subjective matters which have to be taken into account.
20. In Bugmy v R, supra, the High Court held: 1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40]. 2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44]. 3. A background of that kind may leave a mark on a person throughout life and compromise a person's capacity to mature and learn from experience [43].
21. The High Court also noted that Aboriginal Australians, whether they live in remote or urban communities, may be subject to the grave social difficulties discussed in R v Fernando (1992) 76 A Crim R 58 and Kennedy v R [2010] NSWCCA 260. I am satisfied here that there is ample material establishing the offender's deprived background. I am satisfied that he was subjected to violence, drug abuse and neglect from an early age, such that his moral culpability for his criminal conduct must be substantially reduced.
22. I have also taken into account the matter on the Form 1. That matter was towards the lower end of objective seriousness of the offending, and the offender has admitted his guilt in respect of it. I have certified the Form 1, however, there must be some accumulation on sentence in relation to that matter.
23. I propose to proceed to sentence by way of an aggregate sentence pursuant to s 53A of the Crime (Sentencing Procedure) Act 1999 ("CSPA). The court is required to indicate the sentence that would have imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process. Indicative non-parole periods are given only for offences which carry a Standard Non-Parole Period. I note that any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour - see Mill v R (1988) 166 CLR 59 at [63].
24. The indicative sentences are as follows: Sequence 1 - 2 years and 6 months imprisonment Sequence 13 - 12 months imprisonment Sequence 14 - 15 months imprisonment with a non-parole period of 12 months imprisonment Sequence 15 - 12 months imprisonment with a non-parole period of 9 months imprisonment Sequence 17 - 3 years imprisonment Sequence 4 - 3 years imprisonment with a non-parole period of 2 years and 3 months Sequence 5 - 18 months imprisonment Sequence 7 - 6 months imprisonment Sequence 9 - 6 months imprisonment Sequence 12 - 1 month imprisonment Sequence 11 - 1 month imprisonment Sequence 18 - 1 month imprisonment
25. The indicative sentences in respect of the matters contained in the s 166 certificate (Sequences 6, 8 and 10), are that in relation to each matter, I proceed to conviction with no further penalty pursuant to s 10A of the CSPA in respect of each offence.
26. I find special circumstances established, pursuant to s 44 of the CSPA based on the offender's young age, his need for drug and alcohol rehabilitation, including counselling and relapse prevention, and the need for him to have a lengthy period of supervision to train him for some employment opportunity upon his return to the community.
27. I therefore intend to sentence the offender to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months, to commence on 28 February 2016.

Orders

1. I make the following orders: You are convicted of the following offences: Sequence 4 - Aggravated break and enter and commit serious indictable offence (steal) in company, pursuant to s 112(2) of the Crimes Act 1900. Sequence 5 - Take and drive conveyance without consent of owner, pursuant to s 154A(1)(a) of the Crimes Act 1900. Sequence 7 - Police pursuit - not stop - drive dangerously - first offence, pursuant to s 51B(1) of the Crimes Act 1900. Sequence 9 - Police pursuit - not stop - drive dangerously - first offence, pursuant to s 51B(1) of the Crimes Act 1900. Sequence 12 - Resist officer in execution of duty, pursuant to s 58 of the Crimes Act 1900. Sequence 11 - Assault officer in execution of duty, pursuant to s 60(1) of the Crimes Act 1900. Sequence 13 - Attempt aggravated break and enter with intent to commit serious indictable offence (larceny) in company, pursuant to s 113(2) of the Crimes Act 1900. Sequence 14 - Aggravated break and enter and commit serious indictable offence (steal) in company, pursuant to s 112(2) of the Crimes Act 1900. Sequence 15 - Aggravated break and enter and commit serious indictable offence (steal) in company, pursuant to s 112 (2) of the Crimes Act 1900. Sequence 17 - Break and enter and commit serious indictable offence (steal) value less than or equal to $60,000, pursuant to s 112(1)(a) of the Crimes Act 1900. Sequence 18 - Receive stolen property, pursuant to s 118(1) of the Crimes Act 1900. Sequence 1 - Break and enter and commit serious indictable offence (steal) value less than or equal to $60,000, pursuant to s 112(1)(a) of the Crimes Act 1900.
2. I impose an aggregate sentence pursuant to s 53A of the CSPA as follows: 1. I set a non-parole period of 2 years and 6 months commencing on 28 February 2016 and expiring on 27 August 2018. 2. I impose a balance of term of imprisonment of 2 years to commence on 28 August 2018 and to expire on 27 August 2020. 3. The total sentence is 4 years and 6 months imprisonment, comprising the non-parole period and the balance of term. 4. In respect of each of the offences on the s 166 certificate, namely, Sequences 6, 8 and 10, you are convicted of those offences and I sentence you by way of conviction but no further penalty pursuant to s 10A of the CSPA. 5. Sequences 7 and 9, I order the mandatory licence disqualification period for 3 years on each. 6. I have certified the matter on the Form 1.
3. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

---

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: 29 June 2017