District Court New South Wales Medium Neutral Citation: R v Hura [2022] NSWDC 95 Hearing dates: 16 March 2022 Date of orders: 16 March 2022 Decision date: 16 March 2022 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Ex tempore reasons given in court Catchwords: CRIMINAL LAW – sentencing- aggravated break and enter with intent to commit serious indictable offence- damage property- robbery with an offensive weapon. Legislation Cited: Crimes Act 1900 (NSW) ss 97(1), 112(2) and 195 Crime (Sentencing Procedure) Act 1999 (NSW) ss 3A, 7 and 66 Cases Cited: R v Henry [1999] NSWCCA 111 Harris v R [2021] NSWCCA 322 Category: Sentence Parties: Regina (Crown) Dylan Charles Hura Representation: Crown: Ms K Thomson (Solicitor) Offender: Mr R Hussey (Counsel) File Number(s): 2020/251735 Publication restriction: None Judgment Introduction 1. The offender, Dylan Charles Hura, appears for sentence today in relation to a number of offences, two of which occurred on the same day and the third on a separate day. 2. The first matter for sentence is sequence 1 which is aggravated break and enter and commit serious indictable offence. The aggravation was by reason of the fact that the offender was aware that somebody was in the premises. That is in breach of s 112(2) of the Crimes Act 1900 and has a maximum penalty of 20 years imprisonment with a standard non‑parole period of five years. 3. The second principal count for sentence is sequence 3 which occurred on 15 June 2019 and is robbery armed with an offensive instrument, namely a brick, in breach of s 97(1) of the Crimes Act 1900. That offence carries a maximum penalty of 20 years imprisonment and there is no standard non‑parole period. 4. On a s 166 certificate the offender has admitted his guilt in relation to a charge of damage property, being sequence 2, and has asked that he be sentenced for that matter in this Court. In the Local Court it carries a maximum penalty of two years imprisonment and/or 50 penalty units. 5. The chronology in exhibit A includes that on 17 February 2019 the offending in relation to sequence 1 and sequence 2 occurred. The co‑offender, Mr Bottrell, was arrested and charged on 19 February 2019. 6. On 15 June 2019 the offending the subject of sequence 3 occurred. 7. The co‑offender of the 17 February 2019 offending, Mr Bottrell, was committed for sentence and eventually sentenced in this Court on 20 November 2019. 8. Mr Hura presented to Wyong Police Station on 27 May 2020 at which time a swab was taken and he was then released pending further investigation. On 29 August 2020 he was arrested and charged. He was granted conditional bail on 30 August 2020 and committed for sentence to this Court on 16 November 2021. He has spent one night or two days in custody referrable to the subject offending. Agreed Facts Offences on 17 February 2019 1. The facts agreed between the parties and signed by the offender include the following. 2. He was born 26 January 1998. The first incident, as I have said, occurred on 17 February 2019. His co‑offender was born 13 April 1999. The victim, Mr De Angelo, was born 27 January 1967 and was plainly older than the two offenders. Mr De Angelo resided at an address on Moola Road at Buff Point and had been in a sexual relationship with Lynne Smith, the mother of the co‑offender, for about three years. 3. At about 7pm on 17 February 2019 Smith attended De Angelo's residence and climbed through the front window after attempts were made by De Angelo to prevent her from getting inside. After she gained entry, she made threats to De Angelo and another person who was at his residence. A short time later police attended the residence and spoke to De Angelo and Smith and Smith left soon thereafter. 4. Commencing at about 8pm the same day text message exchanges took place between Smith and De Angelo. The messages are set out in detail in paragraph 6 of the agreed facts. It is plain from reading those text messages that Ms Smith was accusing Mr De Angelo of bashing her; he was resistant to that allegation. In addition, Ms Smith threatened that "people are ready to run through your house tonight". 5. At about 9.30pm on 17 February 2019 De Angelo was sitting on his lounge having earlier locked his front door using the deadlock so that it could not be opened without a key. De Angelo heard the sound of glass smashing before standing to face the door. De Angelo then saw the front door come smashing in, splitting in half vertically. He observed Mr Bottrell and Mr Hura enter the house through the broken front door. 6. De Angelo said to Bottrell, "Oh please no, listen to me, I didn't do anything". Bottrell responded, "you bashed me mum". Bottrell and Hura then walked towards the victim, the victim said "please Jesse I didn't do anything". Mr Bottrell and Mr Hura then continuously punched the victim using closed fists. The force of the punches caused the victim to stumble then stagger backwards in the direction of his bedroom. The two offenders continued punching and hitting the victim all over his body. The victim fell over within the doorway of his bedroom. The offenders leant over the victim and continued punching him to the head and body. The victim put his arms over his head to protect himself. 7. The offenders each kicked the victim before the victim said, "please stop Jesse, your mum came through the window". The offenders then walked away from the victim. 8. The victim remained on the floor and heard noises like somebody had hit something. The victim stood up and saw Mr Bottrell and Mr Hura walking back towards him. The victim walked to the back door and tried to open the door. He observed the offenders walking around as though they were looking for something. He saw the offenders walk into his bedroom and heard the sound of something being moved around. 9. Bottrell walked back into the lounge area and hit the back of the television using his hand, causing the stand to break and the television screen to fall forwards. Mr Hura then walked into the lounge room and pushed the table onto its side which caused damage to fishing rods which were laying on the table. The offender then grabbed a pool cue which he threw in the direction of the victim. The pool cue hit the ceiling causing a hole in the plasterboard. The offender then punched the wall between the lounge room and the dining room causing an indent in the plasterboard. Both offenders then smashed photographs on the same wall. 10. The victim heard Bottrell and the male leaving before calling triple‑0. He was subsequently taken by ambulance to hospital. As a result of the incident, he suffered bruising to his face, shoulder, chest and soreness to his left sided chest, shoulder and jaw. Annexure 1 to the agreed facts are photographs of the injuries to the face of the victim. The victim did not know Mr Hura before the incident and did not select his image from a photograph identification parade conducted on 17 September 2020. 11. On 27 May 2020 the offender voluntarily attended Wyong Police Station and a swab was taken. A swab was also taken from the back side of the timber door near the smashed glass and it matched the DNA of this offender. 12. The co‑offender Mr Bottrell, as I have mentioned, was sentenced in this Court to two offences, namely, aggravated (that is, knowing persons were in the premises) break and enter and commit serious indictable offence, namely, assault occasioning actual bodily harm in breach of s 112(2) of the Crimes Act and recklessly or intentionally damage property in breach of s 195(1)(a) of the Crimes Act. The latter charge was placed on a s 166 certificate as it has been in the present matter. 13. There were proceedings against Ms Smith. She was interviewed by police on 18 February 2019. During that interview Smith said that she had sent Bottrell a photograph of her arm with bruising and a message saying, "look what Joe just did to me, he just bashed me". 14. The Crown contends that this offender is criminally liable as a principal in the first degree for the break and enter and committing the assault against the victim. The Crown also contends that the offender is criminally liable as a principal in the first degree for the property that he damaged; for the property damaged by his co‑offender the Crown contends that the offender is criminally liable as a principal in the second degree. Offence on 15 June 2019 1. The second incident for sentence occurred on 15 June 2019. The victims were referred to as Helen and Angela in the agreed facts, born 1976 and 1970 respectively. They were both sex workers at the Pretty Woman brothel located in Long Jetty managed by a person named Kelly. 2. At approximately 4.42am on 15 June 2019 a white Mazda SUV drove into the rear car park of the brothel. About 4.43am the offender alights from the Mazda vehicle and approached the entrance to the brothel. He was let inside by Angela where he paid $150 in exchange for 45 minutes' worth of sexual activity. 3. Angela and the offender then entered a room at the brothel where the sexual activity occurred, resulting in the offender ejaculating into a condom. Angela placed the condom into the bin that was in the room. After about 30 minutes at 5.22am the offender and Angela exited the room, and the offender was seen walking towards the car in which he arrived. He then drove out of the car park before returning on foot at about 5.25am. 4. The offender can be seen in CCTV footage picking up a brick and placing it near the front door. He was let into the brothel by Helen and headed straight into the room that he was in with Angela and searched it. He then began to leave the brothel a second time before he picked up the brick that was located near the front door and turned to face Helen. The offender raised the brick above his head and moved quickly towards Helen who backed away from him. He then took $510 from the reception area and fled the brothel on foot. 5. At about 1.30pm on 15 June 2019 Detective Senior Constables Blondeau and Walker attended the brothel where other police officers were already speaking with Kelly and her husband in the foyer of the brothel. Kelly showed the police officers the brick that was used by the offender during the incident. She informed police that the male person had used the condom that was on top of all the other rubbish in the bin. The condom was collected by police and DNA analysis matched the profile of the offender. 6. The white vehicle previously referred to was identified as the same make and model as Mr Hura's partner's vehicle. It is further agreed that the offender is easily identifiable by the CCTV footage by reason of his clothing, tattoos and other means. 7. Mr Hura was arrested and conveyed to Wyong Police Station on 29 August 2020 where his rights were read to him. He was offered the opportunity to participate in an electronically recorded interview with police but declined. He was offered an opportunity to participate in an identification parade but further declined that offer. Those are the agreed facts. Factors Considered in Sentencing 1. The maximum sentences to which I referred, together with the standard non‑parole periods, are guideposts for the sentencing judge. The standard non‑parole period is to be applied to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors without bringing into account matters that are unique to the offender or the class of offenders. 2. I do not intend to impose the standard non‑parole period in this case as, in my opinion, the offender's subjective case warrants a reduction in his moral culpability. Further, I find the offending below the midrange of objective seriousness, justifying a departure from the standard non‑parole period. Criminal Record 1. Forming part of exhibit A is the offender's criminal record. Since about 2015 there have been a number of driving offences which I do not consider aggravate his subject offending. In my opinion the triviality of the criminal record is such that he is still entitled to a finding of good character and whatever leniency may flow from that. Objective seriousness 1. The final document in exhibit A are the remarks on sentence by Judge Bright of 20 November 2019. In that case Mr Bottrell was entitled, as is this offender, to a discount of 25%. 2. Her Honour considered that the facts relating to the break and enter charge disclosed serious objective criminality; I agree and adopt that description. In determining the objective seriousness her Honour had regard to the following factors: 1. the nature and extent of the violence used, namely, punches to the victim using fists all over his body and also kicks; 2. the serious indictable offence committed was assault occasioning actual bodily harm, it has a maximum penalty of five years imprisonment. Whilst plainly serious there are far more serious indicatable offences that come within this offence; 3. the actual bodily harm suffered by the victim was soft tissue injuries including bruising to his face, shoulder, chest, soreness to his chest, shoulder, jaw. 1. I agree with Judge Bright that those injuries are at the lower end of objective seriousness. 2. Further, in terms of the circumstance of aggravation relied upon by the Crown, that is, that the victim was inside the house, there are other aggravating factors under s 105A of the Crimes Act which would render offending of this type more serious. 3. I agree with Judge Bright that the duration of the offending was relatively short and that the offender was in company. Independently to the assessment of objective seriousness found by Judge Bright I find the objective seriousness below the midrange. 4. I note that it was submitted on behalf of the Crown that for the s 112(2) offence the objective seriousness was just below the midrange. For the offender it was submitted below midrange. I adopt the latter description of objective seriousness. 5. While dealing with the question of objective seriousness (before returning to the question of parity) in relation to the robbery armed with an offence instrument under s 97(1) of the Crimes Act , it was submitted for the Crown that it fell below the midrange. For the offender it was submitted that it fell at the low end of the range. For reasons which I will come to shortly I have formed the opinion that the offender's moral culpability is reduced in respect to the offending given a number of factors including his childhood deprivation and addiction to drugs from a young age. 6. I find that the robbery armed with an offensive instrument falls at the low end of objective seriousness. 7. Finally, in relation to the damage to property there is no information before me as to the value of the property which had been damaged. There is, in the facts, a description of the damage which was caused. In my opinion that offending falls at the low end of the range of objective seriousness. Parity 1. Returning to the question of parity, the co‑offender (Mr Bottrell) also had a relatively strong subjective case which was outlined in a report from a psychologist. I would equate that offender's childhood and its subjective case to the present save for the fact that in the case of the co‑offender the sentencing judge assessed the co‑offender as having excellent prospects of rehabilitation. 2. I am unable to express the prospects that highly in this instance. I accept the submission advanced for this offender that the co‑offender had a greater role in the offending in that he initiated the offending although, plainly, in terms of the actual conduct of the two their behaviour appears to be comparable. 3. When I determined the objective seriousness for the break and enter offence, I had regard to the fact that it occurred in the home of the victim, a place where he is entitled to feel safe and protected. Subjective Case 1. In relation to the subjective case, exhibit 1 is a report from Ms Hare, (psychologist). It is lengthy and provides a detailed history including matters pertaining to the offender's childhood. The psychologist stated at the base of page 2: "Mr Hura described his childhood as characterised by instability and exposure to domestic violence and maternal substance abuse and emotional instability. He reported having been raised mainly by his mother who moved frequently between Melbourne and the Central Coast area of New South Wales. His parents separated in his early childhood and he has not had any contact with his father since he was aged approximately seven years old." 1. The psychologist then goes on to record the fact that the offender witnessed conflict between his mother and her subsequent partner, as well as regular abuse of alcohol and other drugs. The offender commenced work at the age of 17, having experienced a fairly unsatisfactory education in which he changed schools on multiple occasions. He was twice terminated from employment due to poor attendance following weekends of binge drinking and drug use. 2. Mr Hura commenced using cannabis at the age of 13 and ice at the age of 15. It could not be said that the decision to use drugs from those ages were at ages of rational choice. 3. The second matter to which I have had regard in reducing the offender's moral culpability is his addiction to drugs. That is not to say that his offending is in any way mitigated by the fact that he was affected by drugs on the occasion of the offending. 4. The psychologist took a history of symptoms consistent with a major depressive disorder including lethargy, weight gain, loss of pleasure in activities, disrupted sleep, low mood and feelings of worthlessness/hopelessness. 5. The offender's mother suffers bipolar disorder; he has a history of impulsivity and aggressive acting out. It may be that there would be some connection between his condition and the offending but that is not made by the psychologist and it is a connection I decline to draw. 6. Ms Hare again referred to his childhood as "dysfunctional, characterised by domestic violence, substance abuse, criminality and mental illness". In paragraph [38] of the report the psychologist stated, amongst other things: "In recent months Mr Hura's mental wellbeing appears to have improved and he has moderated his misuse of alcohol and other drugs. He reported having reengaged in employment and his housing situation is seemingly stable. These factors speak to reduced likelihood of reoffending. Mr Hura outlined positive goals for the future including maintaining employment, being a good role model to his son and avoiding misuse of alcohol and other drugs. With appropriate support it is my opinion that he can maintain the positive steps he has taken and achieve successful rehabilitation; to this end I recommend that Mr Hura be referred to an alcohol and other drugs service that can support him to develop a robust relapse prevention plan and promote his accountability. Additionally, he would benefit from psychological intervention to explore his views of self, others and the world in order to support him to develop a positive self‑image and effective emotional management. Finally, his attitudes towards violence require further exploration and potentially moderation and his interpersonal problem-solving skills would benefit from enhancement." 1. The offender gave evidence, as did his former partner. 2. His former partner explained that when [Mr Hura] is under stress he has difficulty communicating his feelings and his attitude. That was apparent in the course of him giving evidence today. 3. I was troubled by the fact that in the course of the offenders evidence it came to light that the offender has continued using drugs as recently as December last year. However, apparently not since that time and, according to his partner, there have been marked changes in his behaviour and attitudes since that time. 4. The offender also gave evidence about the effect that having a child had upon him in 2020 when the child was born. The child turns two years of age next week. The offender provides financial and other support to his child. The offender spoke of being arrested in August 2020 and the distressing affect and impact that has had upon him since that time. He said on a number of occasions that he wanted to be a good role model to his son although, curiously, was unable to explain what a good role model was. I put that down to his nervousness in giving evidence in court. 5. There are also some issues about compliance with bail conditions, although it seems likely that he was misled by police at Wyong Police Station as to his requirements in that regard. 6. Mr Hura gave evidence that he is committed to engaging with his General Practitioner and others in counselling to avoid returning to the use of alcohol and drugs in order to reduce his risk of re‑offending. He expressed remorse for the offending and that expression of remorse was confirmed by his former partner who said that he had expressed remorse to her on occasions. 7. Exhibit 2 is a letter from a current employer confirming that the offender has worked on a casual basis each week since December 2021, which coincides with when he last used illicit drugs, on his evidence. Submissions 1. I am assisted by submissions in writing and orally from both the Crown and counsel for the offender. 2. The Crown submitted that the offending in relation to the break and enter was aggravated by the fact that it was committed in the home of the victim. That is a finding I have already made. Whilst I referred to the fact that it was committed in company I did not find, as I now do, that that was also an aggravating factor. 3. In relation to the robbery armed with an offensive weapon charge the Crown has directed my attention to the guideline judgment in R v Henry [1999] NSWCCA 111 which is not to be applied rigidly. There are similarities between this offender and the one contemplated in Henry, namely, a young offender with no or little history, a weapon like a knife (in this case a brick), limited degree of planning, limited (if any) actual violence, victims in vulnerable positions, a small amount of money taken and a plea of guilty. 4. In my opinion in relation to that offence there was limited planning, it appeared to be spontaneous, there was no actual violence and the amount stolen was comparatively small. 5. The Crown submitted that the present matter falls within the common features identified in Henry and therefore generally a range of imprisonment of between four and five years would be appropriate, acknowledging that that was the starting point and the ultimate sentence would turn on the aggravating features, mitigating features and the subjective case of the offender. 6. In that regard I am mindful of the remarks of the Court of Criminal Appeal as recently as 21 December 2021 in the matter of Harris v R [2021] NSWCCA 322 in which the Court was considering the Henry judgment. That was also a case involving matters of deprivation, mental health and addiction. Dhanji J at [85] observed: "Finally, with respect to the role played by addiction, it was accepted by the sentencing judge that circumstances in which the applicant came to abuse drugs was less in the nature of "personal choice" (see Henry, per Spigelman CJ at [198]) and more attributable to circumstances for which the applicant was not primarily responsible (see Henry per Wood CJ at CL at [273], noting Spigelman CJ's agreement at [212]). The sentencing judge found that the circumstances in which the applicant's drug addiction arose served 'to further ameliorate the moral culpability of [the applicant]' with respect to his offending." 1. I endorse that approach. Given the age at which the offender commenced abusing drugs it could not be said that it was an age of rational personal choice, and his addiction grew from that time. In paragraph [86] of Harris it is stated: "The above matters, the background of deprivation, mental health and the circumstances leading to addiction were interrelated both as to their source but also with respect to the manner in which they impacted the purposes of sentencing. That is, it is to be kept in mind that they are not separate matters to be regarded individually with a consequent iterative impact. Nonetheless each finding was significant, and together they warranted consideration of their impact on the sentence to be imposed." 1. To avoid doubt I find in this case that there is a history of deprivation in childhood. There is evidence of existing mental health conditions and I have already remarked upon the circumstances leading to addiction and I take into account all three matters in determining sentence. Dhanji J at [88] stated: "The amelioration of the applicant's moral culpability gives a different perspective to the relationship between the present offending and the Henry guideline." 1. It is for that reason that I have no hesitation in departing from the Henry guideline in the present case. 2. The Crown submitted that deterrence, denunciation, accountability as well as recognising the harm done to the victims are important considerations in this case. I accept that submission, although the purpose of general deterrence is moderated to some extent by reason of the subjective factors to which I have already made reference. 3. The submissions advanced on behalf of the offender were also informative. I will not repeat findings I have already made, some of which were the subject of those submissions. 4. I do find that the offending in relation to sequence 1 and sequence 3 cross the s 5 threshold in that no sentence other than one of imprisonment is appropriate. 5. I find in respect of sequence 2, that is the damage property offence, that a sentence other than imprisonment is appropriate. Guilty plea 1. A 25% discount will be applied to the sentence having regard to the timing of the guilty plea. 2. I am also mindful in terms of parity in the sentence imposed by Judge Bright in relation to the co‑offender. In fact, weighing the respective cases parity, in my opinion, calls for a very similar if not the same sentence. Whilst the other offender was the initiator, he did have a stronger prospective subjective case in the sense that he had excellent prospects of rehabilitation. Balancing those matters I consider that a sentence for the same period of time is appropriate. I have also had regard to the purposes for sentencing in s 3A of the Crime (Sentencing Procedure) Act. Sentence 1. I intend to impose an aggregate sentence in respect of sequences 1 and 3. Before doing so I am required to provide an indicative term. After discount of 25% for the guilty plea I provide and indicative term for sequence 1 of two years imprisonment and, consistent with my finding of special circumstances, an indicative non-parole period of one year imprisonment. In respect of sequence 3, after a discount of 25%, I provide an indicative term of two years imprisonment. 2. I find special circumstances based on the fact that this would be the offender's first time in custody and also the fact that he needs counselling and other assistance to battle his addiction to drugs and alcohol and the other issues referred to by the expert. 3. Mr Hura, you are convicted of the offences to which you have pleaded guilty, namely, aggravated break and enter commit a serious indictable offence in breach of s 112(2) of the Crimes Act. You are further convicted of robbery armed with an offensive instrument in breach of s 97(1) of the Crimes Act. Lastly, you are convicted of damage property in breach of s 195 of the Crimes Act, being sequence 2. 4. In respect of sequences 1 and 3 I impose an aggregate sentence of three years imprisonment. 5. In respect of sequence 2, that is the damage property offence, I sentence you to a Community Corrections Order for a period of 12 months. The standard conditions of that order apply; 1. you must not commit any offence; and 2. you must appear before the Court if called upon to do so during the term of the order. 1. In relation to sequences 1 and 3 it is open to me to direct that the sentence be served other than by way of full‑time imprisonment. It is necessary to have regard to s 66 of the Crimes (Sentencing Procedure) Act. It is plain from that section that community safety is a paramount concern. 2. Notwithstanding the violent nature of this offending, the offender appears to have turned a corner, most probably as a consequence of becoming a father and more recently obtaining and retaining employment. In my opinion the offender, having regard to his prior record and conduct since this offending (which was almost three years ago), does not pose a threat to community safety. 3. When considering community safety it is necessary to have regard to whether making an order under s 7 or the sentence being served by way of full‑time detention is more likely to address the offender's risk of re‑offending. 4. In my opinion, given the obvious support which Mr Hura has in the community both from his former partner and his mother, both of whom are present, and his employer, the risk of re‑offending is best reduced by directing that the sentence be served by way of an Intensive Corrections Order with conditions directed towards rehabilitation. Orders 1. Accordingly, I sentence Mr Hura in respect of sequences 1 and 3 to a period of imprisonment of three years to be served by way of an Intensive Corrections Order in the community. Today the order commences (16 March 2022 ) and will expire 15 March 2025. 2. The Intensive Corrections Order carries with it mandatory conditions or standard conditions. They are as follows: 1. that you must not commit any offence during that three year period; and 2. you must submit to supervision by a Community Corrections Officer. 1. In addition to the standard conditions, I impose the following additional conditions; 1. a rehabilitation or treatment condition that you provide your General Practitioner with a copy of the report by Ms Hare with a request that you be referred for the counselling and treatment referred to in paragraph [38] of her report and thereafter for you to follow all directions and recommendations made by treatment providers; 2. I also impose an abstention condition, that is, for the duration of three years you must abstain from alcohol and drugs other than drugs prescribed to you by a medical practitioner; 3. further, I impose a non‑association condition preventing you from associating with Mr Bottrell, the co‑offender; 1. Madam Crown has indicated that no further conditions are requested. 2. Before you leave today, Mr Hura, it is necessary for you to go to the registry to sign the order. 3. I also direct that you attend Wyong Community Corrections, initially by telephone, if you can telephone them no later than 4pm 18 March 2022, which is this Friday, and tell them what happened today and that you are to be supervised by them for a period of three years. Do you understand? 4. Do you have any questions? I should tell you that if you do breach any of those conditions there is a strong likelihood that you will be sent to prison. Do you understand? ********** I certify that the previous 89 paragraphs are an edited/ adapted for publication version of the Remarks on Sentence of his Honour Judge D Wilson SC given in Gosford District Court on 16 March 2022. H Place (Associate to Judge D Wilson SC) Amendments 05 April 2022 - Cover page updated 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: 05 April 2022