Regina v Robert Samuel Hookey

Court of Criminal Appeal (NSW)|2004-07-01|Before: Studdert J, Dunford J, Howie J, Dr P

CITATION : Regina v Robert Samuel Hookey [2004] NSWCCA 223 HEARING DATE(S) : 1 July 2004 JUDGMENT DATE : 1 July 2004

JUDGMENT OF : Studdert J at 25, 27; Dunford J at 26; Howie J at 1 DECISION : Application for leave granted - appeal dismissed.

CATCHWORDS : Criminal Law - Sentencing - special circumstances - whether failure to find was an error - no lesser sentence warranted in law. LEGISLATION CITED : Crimes Act Justices Act CASES CITED : R v Fidow [2004] NSWCCA 172 PARTIES : Regina v Robert Samuel Hookey FILE NUMBER(S) : CCA 60116/04 COUNSEL : Dr P J P Power SC - Crown C Smith - Applicant SOLICITORS : S Kavanagh - Crown Legal Aid Commission - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0051 FILE NUMBER(S) : LOWER COURT Shillington ADCJ JUDICIAL OFFICER :

1 - IN THE COURT OF CRIMINAL APPEAL 60116/04

STUDDERT J DUNFORD J HOWIE J

Thursday, 1 July 2004 R v Robert Samuel HOOKEY Judgment 1 HOWIE J This is an application for leave to appeal against sentences imposed in the District Court by Shillington ADCJ. There is only one ground of appeal being in effect that his Honour erred in not finding special circumstances and thus not reducing the non-parole period below the statutory ratio. 2 The applicant pleaded guilty to three offences in the Local Court under s 51A of the Justices Act and was committed for sentence to the District Court. The first offence was the most serious being an offence of inflicting grievous bodily harm with intent to inflict grievous bodily harm. That is an offence contrary to s 33 of the Crimes Act for which a maximum penalty of imprisonment for 25 years is prescribed. The second offence was an assault occasioning actual bodily harm contrary to s 59 and for which the maximum penalty is 5 years imprisonment. The third offence was the least serious offence and concerned the stealing of $200 for which the maximum penalty is 5 years imprisonment. 3 In addition the applicant asked his Honour to take into account two offences on a Form 1 being a further charge of assault occasioning actual bodily harm and a charge of threatening a witness contrary to s 326(1) of the Crimes Act. 4 The applicant was sentenced as follows: for the s 33 offence and taking the matters into account on the form 1, imprisonment for 4 years with a non-parole period of 3 years; for the s 59 offence, imprisonment for a fixed term of 1 year; for the stealing offence, imprisonment for a fixed term of 6 months. Each of the offences was dated from 6 July 2003 and the applicant is eligible for release to parole on 5 July 2006. The sentences were backdated to take into account a period during which the applicant was in remand and before being granted bail. 5 The facts of the matters were set out in an agreed statement of facts. The first offence in time was that under s 59. On the evening of 8 January 2002 the applicant, in company with another unidentified person, attended premises where the two victims of the offences, Nakita Amey and Paul Brearley, lived together. The applicant was well known to these two persons and was allowed entry into their flat. He immediately asked Brearley, "Where is the money?" He then entered the bedroom where Amery, a transsexual, was asleep. He woke her and held a knife to her throat. He assaulted her by pulling her out of bed and throwing her against the wall. The applicant threw a lamp at her, but missed. He stabbed her in the arm resulting in a small wound. This assault gave rise to the s 59 offence to which the applicant pleaded guilty. The applicant then punched Amery in the nose causing it to bleed. This assault gave rise to one of the charges on the Form 1. 6 The applicant then left the bedroom. He searched a cupboard and found the sum of $200 that he took. He then left the flat in company of the other person who had waited outside throughout the assault upon Amey. The taking of the money gave rise to the charge of stealing. 7 The next morning, 9 January, at about 5.30am, the applicant returned to the flat in the company of another male. He was let in by Brearley, who had been lying on the floor reading. After the applicant entered, Brearley again resumed lying on the floor. The applicant asked him "Where is the money?' and, before Brearley could reply, commenced to kick him repeatedly to the chest and head. At one stage the applicant jumped on Brearley's head from a chair onto which he had climbed for that purpose. The applicant left the flat after the noise of the assault woke Amey who entered the room and contacted 000. 8 Brearley was taken to hospital suffering the following serious injuries: a fractured upper right maxilla; fracture of the left mandible and right ramus; right-sided traumatic pneumothorax, that is the presence of air in the pleural cavity; a partially collapsed lung. He also suffered numerous bruises and abrasions. He had imprints of the applicant's shoes to both sides of his face. Blood later found on the applicant's shoes matched the DNA of Brearley. 9 Amey was later that day seen by a doctor and found to have lacerations to the right side of her neck and lower face and bruising to her nose. She has a small scar as a result of the stab wound to her arm. 10 The applicant was arrested and later released to bail without making any statement to police. It was a condition of his bail that he not approach the victims. On 2 March 2002, when the applicant passed the two victims in a street in Surrey Hills, he said "Your dead cunt". This threat gave rise to the second offence on the Form 1. 11 Brearley was hospitalised from 9 January to 16 January 2002. He required the insertion of chest draining tube and surgical repair of the bones in his face by the insertion of metal plates. A medical report of 14 June 2003 indicated that he was continuing to suffer from jaw pain, constant discomfort and increased pain in cold weather. It is likely that he will have persistent long-term jaw discomfort. He was also suffering at that time from significant psychological symptoms. The effect of the assaults upon him, both mentally and physically, were set out in a victim impact statement in evidence before the sentencing judge. 12 The applicant's subjective case is conveniently set out in two paragraphs of a psychological report prepared in respect of the applicant for the sentencing proceedings: [25] [the applicant] is a 26 year old employed aboriginal man, currently separated from his 2nd de facto wife. He appears to have been brought up by different members of his extended family throughout much of his childhood and early adolescence, though at this stage it is unclear what impact this may have had on him. He gives a history of what might best be term episodic substance use over time, which was apparently particularly problematic some 4-5 years ago. His reporting was suggestive of the possibility of an alcoholic abuse problem and his offending on this occasion appears to be related to such abuse. I think that there is a need for further [drug and alcohol] assessment over time, with a view to treatment while in custody (if he is placed in detention), and to later placement in a residential rehab program if the assessment indicates that this is needed (which I suspect it might well be). I note his report that he is no longer using drugs and has limited his alcohol intake, though despite this I am not sure that he has insight into the issue of alcohol abuse, indeed he may still be in denial. [27]…………….I would respectfully recommend that [the applicant] undergo further D & A assessment, with a view to putting in place a treatment plan, more particularly for alcohol abuse, which might well include a release from prison (if placed in detention) into a residential rehab unit. I would further recommend that [the applicant] be involved in adult education classes if these are available, looking particularly at the issue of literacy, given that he speaks of an interest in obtaining his year 10 and 12 certificates (the first is certainly worth pursuing); and that he also have access to specific trade-training programs to broaden his work skills and qualifications. 13 It is clear that the applicant has abused alcohol throughout his adult life and it was this problem that apparently resulted in his separation from his de facto partner, because of his aggression and violence when under the influence of alcohol. He has a relatively minor criminal history from 1997 resulting in a number of appearances in the Local Court. On each occasion he was fined. The period on remand for the present offences was the only period he had spent in custody prior to being sentenced. The only matters of relevance in his antecedents are two offences of common assault one in 1997 and the other in 1999. 14 A pre-sentence report included the following in respect of the applicant's attitude to the offence:

[The applicant] said that he regretted the harm inflicted upon the victim and the negative example his behaviour will portray to his children. He said that he was shocked at the description of his behaviour as outlined in the Police facts and claimed that he had never committed an offence of such severity in the past.

Under the heading "summary and sentencing options" was the following:

[The applicant] appears to have maintained a stable lifestyle on the whole. He reports a close and supportive relationship with his paternal aunt and extended family, along with frequent involvement in his sons' sporting and social activities. He expressed a strong commitment to his parenting role and this was confirmed by his ex-partner. Although currently unemployed, it appears that [the applicant] has been employed for the majority of his working life and stated that he is actively seeking further employment. The matter now before the Court would appear to be underpinned by alcohol abuse which seems to be an ongoing issue in [the applicant's] life and would need to be addressed in order to reduce the risk of further offending. [The applicant] appears to have little insight into or awareness of both the significant problematic level of his alcohol use and related violence which has been demonstrated by the commission of this offence and by reports from his ex-partner in relation to the history of alcohol related violence during the terms of their relationship. 15 His Honour in his sentencing remarks referred to the fact that the applicant had pleaded guilty before the magistrate and stated:

It follows that he is therefore entitled to the fullest discount because of the entry of the early plea, and also does demonstrate some contrition on his part. 16 His Honour did not quantify the discount given. With respect, the sentencing remarks are inadequate from the point of indicating how it was that his Honour determined upon the sentence to impose upon the applicant. They contain little more than the history of the matter, a brief outline of the facts, and a summary of the material in the two reports tendered on behalf of the applicant. There was no real discussion of the various aspects of punishment that arose and no reference to any of the relevant statutory provisions either concerning the offences committed or the principles of sentencing. One assumes that his Honour was aware of the maximum penalty for the s 33 offence but he does not mention it. I raise these criticisms so that the remarks relevant to the finding of special circumstances can be seen in context. 17 One glaring inconsistency in his Honour's remarks is that just before imposing the sentences he stated, "the sentences I impose will be sentences partly concurrent". In fact each of the sentences commenced from 6 July and were wholly concurrent. 18 In my view, with respect, there is much to support a conclusion that the head sentence of 4 years was inadequate to address the criminality before the court even taking into account the plea of guilty and late remorse by the applicant. It was very probably inadequate to punish the s 33 offence taken in isolation. This was a serious offence with a number of aggravating factors, only one of which was mentioned by his Honour: that it occurred in a private home where the victim resided. More than that the applicant was in company, he had previous convictions for assault, the injury was permanent, and the psychological effect was substantial. The attack was unprovoked and cowardly because the victim was in a position where he could take no action to protect himself. 19 Further the offence committed upon Ms Amey was a distinct and separate act of criminality and was itself a seriously aggravated form of the offence and one coming within the top of the range of criminality for a s 59 offence. In my view the sentence of 1 year to be served concurrent was totally inadequate and a breach of the principle in Pearce. However, there is no Crown appeal. 20 So far as the ground of appeal complains about his Honour's failure to find special circumstances, it has technical merit. His Honour stated:

It is suggested that there should be in this case special circumstances found, in all the circumstances of this case I do not find that that is a possible conclusion that I can come to. 21 With respect, this was an inadequate examination of the issue of special circumstances and a failure to give sufficient reasons for determining why it was that a finding of special circumstances was not open on the evidence. I appreciate that the section only requires that reasons be given where special circumstances are found, but in a case, as the present, where it is clear that there are matters that might amount to special circumstances, it behoves the sentencing judge to say something as to why they do not justify a departure from the statutory norm. In a situation where 87 per cent of the prison population has had a finding of special circumstances made for its benefit, see R v Fidow [2004] NSWCCA 172, the applicant was entitled to know such a finding was not made in his case. 22 In the present case factors that could have amounted to special circumstances included the fact that the applicant had a long-term problem with alcohol and had never had the opportunity to receive assistance from the probation service or some other form of managed treatment to overcome his problem. The evidence seems to be that the attacks on the two victims were related to his violent disposition when under the influence of alcohol. The applicant at 27 had hardly reached the age where rehabilitation was not a relevant factor in sentencing him nor was his criminal record one that militated against some leniency in the non-parole period. 23 However, in my opinion the appeal must fail because a minimum sentence of less than 3 years would be inadequate to reflect the objective seriousness of the offences committed and the need for general deterrence. The applicant may need longer than 12 months on parole but it cannot be at the reduction of a non-parole period which is the very least he should serve in prison for the offences committed. I do not believe that any lesser sentence is warranted on the material presently before this Court including affidavits filed for the hearing of the application. 24 I propose that the application for leave be granted but the appeal be dismissed. 25 STUDDERT J: I agree. 26 DUNFORD J: I also agree. 27 STUDDERT J: The orders of the Court are those proposed by Howie J. **********

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