District Court New South Wales Medium Neutral Citation: R v Hurkett [2024] NSWDC 543 Hearing dates: 22/7/24 Date of orders: 22/7/24 Decision date: 22 July 2024 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to an aggregate term of imprisonment of 4 years 2 months with a NPP of 2 years 10 months (17/12/23-16/10/26). I find special circumstances. Indicatives (25 percent discount taken into account): Count 1 – 3 years 6 months (Form 1 taken into account). Count 2 – 3 years 6 months. Catchwords: Crime – Sentence – Robbery with an offensive weapon Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Aguirre v R [2010] NSWCCA 115 Attorney General's Application of No 1 of 2002 [2002] NSWCCA 518 Bugmy v The Queen [2013] HCA 37 DPP (Cth) v De La Rosa [2010] NSWCCA 194 McCullough v R [2009] NSWCCA 94 R v Harris [2011] NSWCCA 105 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: NSW DPP – Crown Jamie Hurkett - Offender Representation: Mr J Carlberg for Crown Mr T Jones for Offender File Number(s): 23/156856 remarks on sentence 1. Mr Jamie Hurkett is for sentence in relation to two offences. The first one being count one on the indictment on which he was arraigned this morning, that being an offence under s 97(1) of the Crimes Act 1900, being an offence of robbery with an offensive weapon. The maximum penalty for that offence is 20 years' imprisonment, and in sentencing him for that offence, he asks that I take into account on a Form 1 document a further offence of aggravated enter dwelling, knowing that a person or persons were in the premises, that being an offence which carries a maximum penalty of 14 years' imprisonment. 2. The second offence is count 2 on the indictment, which is a further offence of robbery armed with an offensive weapon, which carries a maximum penalty of 20 years' imprisonment. The maximum penalties, of course, are guidelines or yardsticks in the sentencing exercise to which I have had regard. 3. The offender pleaded guilty at the earliest opportunity, and therefore will be given a 25% discount by reason of the utilitarian value of those pleas of guilty. FACTS 1. The facts are agreed and, in essence, are as follows. The offender was 27 years of age at the time of the offences. A co offender was Ms Rhiannon Bailey who was 21 years of age at the time of her involvement in the offences. 2. There were two other men also involved in the commission of the robbery offences, but police have to date not been able to identify them. The offences took place around midnight on 6 April 2023 at a house in Bidwell. The first victim, Mr Michael Charlesworth was 32 years of age at the time and he had lived at the Bidwell premises for about two years together with his three children. During that time, he had come to know Ms Rhiannon Bailey because she lived nearby and they sometimes would socialise. Mr Charlesworth also knew this offender, Mr Hurkett, although not very well. 3. The second victim was a Mr Brett Holbert, who was 36 years old at the time he was visiting Mr Charlesworth at the Bidwell property. He also was somebody who was acquainted with Rhiannon Bailey, but it would appear was not known to this offender. 4. Around 9.30 or 10 o'clock on the evening the sixth of April 2023, Ms Bailey attended Mr Charlesworth's house at Bidwell with some toys for his children, and she was let inside the house. It was around 10.30 or 11 o'clock that night that Mr Holbert, the other victim, arrived. By this time, all of the children were asleep in their bedrooms. After Ms Bailey and Mr Holbert arrived, they socialised with Mr Charlesworth. 5. However, at around 11.30pm that night, Ms Bailey told Mr Charlesworth and Mr Holbert that she was going outside to make a phone call. She walked to the front door and opened the front door, and at that moment, this offender and two of the unknown men rushed into the house. Mr Charlesworth and Mr Holbert heard the intruders calling Mr Hurkett that is, this offender by his first name, Jamie. One of the unknown men was carrying a tomahawk which had a blade on one side and a hammer on the other. He was wearing a baseball cap, but nothing covering his face. He called himself "Murphy" and in the facts he is referred to by that name. The other unknown man was carrying a machete. He wore a red chequered handkerchief which was covering the bottom half of his face. He also had a hooded jumper which covered his hair. 6. The two victims heard him being referred to by the name "Justin" and he is therefore referred to in the facts by that name. Shortly after these men entered the house, this offender was handed a samurai sword by one of the two men. It is the aggravated enter dwelling with intent offence which is on the Form 1 document which forms the basis for the facts that I have just recited. 7. Turning then to the two armed robberies, the facts note as follows: as the two men entered the house, both Mr Charlesworth and Mr Holbert stood up. They were confronted at the bedroom doorway and shoved backwards onto Mr Charlesworth's bed. 8. The intruders then closed the bedroom door behind them. One of the intruders then repeatedly asked, "Where's the cash?" The man known as Murphy then hit Mr Holbert over the head using the hammer side of the tomahawk, and he said to him, "Don't look. Look down. Where's the cash? Where's your stuff?" He also said, "My name's James Murphy, and don't you forget that, you white dog. I'm taking back my land," and "Empty your pockets." 9. He then cut Mr Holbert's left hand slightly by pressing the blade side of the tomahawk into it. He also took Mr Holbert's Nokia mobile phone, which was on a bed. He then hit Mr Holbert to the head a few more times using the hammer side of the tomahawk. Then he told Mr Holbert to remove his pants and underwear. He said, "Pull your pants down, you white piece of shit." Mr Holbert complied by taking down his pants and underwear to his ankles. 10. The person known as Murphy then pointed the tomahawk at Mr Holbert's groin and said, "I'll chop your dick off, you white piece of shit," and at one point also said, "How about I make you suck my dick?" Ms Bailey then reminded the male intruders about some CCTV cameras. 11. The man, Murphy, then demanded that Mr Holbert remove and hand over the hard drive that was part of the house's CCTV system, and Mr Holbert complied with this demand. He was struck to the head twice more while doing this, at which time he still had his pants and underpants down. Several times the intruders told the victims, Charlesworth and Holbert, that if they called the police, they would come back and, "Chop up the kids and fucking kill" Mr Charlesworth's family. The man, Murphy, also said, "If you go to the police, we'll come back and kill you and all your family. Your mum, your dad, everyone." 12. After about 15 minutes with his pants and underwear down, Mr Holbert asked if he could pull them up. In response, the man, Murphy, shoved the tomahawk into Mr Holbert's crotch area and said, "Fucking pull them up, then." At one point, Murphy also said that he would make Mr Charlesworth and Mr Holbert "suck each other off." 13. Mr Charlesworth owned a Yamaha 2015 motorcycle which was kept inside the house, apparently sitting on top of a chest of drawers. At one stage, all three male intruders worked together to lift the motorcycle down and take it outside. Charlesworth also owned an electric scooter. One of the intruders used this to as a getaway vehicle. 14. Just before the intruders left, Ms Bailey said to Mr Charlesworth, "This is what you get." She then took off on her own pushbike while Mr Hurkett, this offender, left on foot, and the two other men took off on the motorcycle and the electric scooter. They left about 40 minutes after the commencement of the home invasion. 15. In summary, Mr Charlesworth was robbed of the following items: an iPhone model 11, the Yamaha motorcycle, and electric scooter, a CCTV unit and hard drive, and a small amount of coins. Mr Holbert was robbed of the following items: a Nokia C30 mobile phone, a wallet, and some keys. 16. The facts note that throughout the next day, Mr Holbert's head was soft and sore to touch as a result of being hit multiple times with the hammer section of the tomahawk. In addition, the skin on his left hand was grazed were the man, Murphy, had pressed the tomahawk blade against it. 17. Police conducted a crime scene examination, and a fingerprint matching to Ms Bailey was found on the front door. In addition, more relevantly, three fingerprint graphs were obtained from a soft drink can that was found on the floor of Mr Charlesworth's bedroom, and these were subsequently matched to this offender. Also, this offender's DNA was found when an examination was made of the opening section of the can of soft drink. It was on 16 May 2023 that police arrested Ms Bailey and this offender, and each of them participated in interviews. Ms Bailey made some admissions. However, this offender said that he was at Hebersham at the relevant time, but he was aware of what had happened. 18. He told police that Ms Bailey had advised him that a "Peter Murphy" and a "Zachary Murray" ran into Mr Charlesworth's house to take his methamphetamines and marijuana and that they saw his motorcycle and had taken it. The offender told police that Ms Bailey had transferred money out of the victim's account. 19. An examination of Ms Bailey's phone detected that on 30 March, there had been a number of exchanges between her and this offender. The first one in which she had sent a text which said, "Come do this thing with me $$", to which the offender had replied, "Do wah??", presumably meaning, "Do what?", to which she had then replied, "That cocksucker we were gonna do over ages ago." To this the offender had replied, "Who ya mad cunt lol?", and to which she then replied, "Mickey." Those, in essence, are the facts of the offences. OBJECTIVE SERIOUSNESS 1. Turning, then, to the objective seriousness of the offences. All robberies, of course, are serious, as are these. The two offences carry a maximum of 20 years' imprisonment, which clearly confirms that they must be regarded as objectively serious. That is partly because robberies like these ones are not just offences involving the theft of property, but they are offences against people. And so, any person who commits armed robbery must expect to receive a custodial sentence, unless there are exceptional circumstances. That is in part because personal and general deterrence are of great importance. 2. There are a number of common aspects that are shared by each of the two robbery offences. 1. Each of them involved the serious aspect of the carrying and display of fairly serious weapons, which no doubt would have created a terrifying situation for the two victims. 2. Each of the offences occurred in a person's home where the two victims were entitled to feel safe. 3. Each offence was committed in the company of others, which would have increased the sense of fear in the victims. 4. The amount of property that was stolen was not very large, but was significant, especially in the case of the victim, Mr Charlesworth. While the amount of property was not overly large, this does not, however, significantly reduce the seriousness of the offences which lies more in the fact that, as I have said, armed robberies are not simply a crime against property, but a crime against persons: R v Henry (1999) 46 NSWLR 346. 5. There was some degree of planning by reason that the offenders had armed themselves and used, to some extent, face coverings, and also because the offence was targeted at a particular person; namely, Mr Charlesworth. This is demonstrated by the exchange of text messages to which I have just referred, namely the text messages between Ms Bailey and this offender a number of days before the offences. I do not, however, take into account this targeting aspect when considering the offence committed upon Mr Holbert, because there is no evidence that the offender believed that there would be anybody else present apart from Mr Charlesworth. The robbery of Mr Holbert, on the other hand, I consider to be an opportunistic one. 6. Each of the offences was committed for financial gain. This is supported by the text message to which I have referred which occurred some days earlier when the offender responded to Ms Bailey's message, "Come do this thing with me $$". However, offences of robbery are usually committed for financial gain, and so this is not an aspect to which I attach great weight. 1. As I have said, these matters that I have just referred to are common factors in each of the robbery offences. There are, however, also some differences between the two robberies. 2. In relation to Mr Charlesworth, there was limited actual violence, but a serious threat of violence by reason of verbal threats that were made, as well as the presence of three offenders who each had weapons. I assess this as a serious offence which I would describe as being slightly below the mid-range. 3. The offending against Mr Holbert involved moderately serious violence in that he was hit in the head with a hammer more than once and received a graze to his hand from a tomahawk blade. He was also subjected to threats about being forced to fellate one of the co offenders or the other victim. He was also forced to remove his pants and underpants, which was no doubt a degrading aspect which would have increased his sense of helplessness and humiliation. This makes the offence more serious. 4. Submissions were made in the hearing this morning about the question of whether the offending against Mr Holbert involved gratuitous cruelty, and my attention was taken to a decision of the Court of Criminal Appeal in Aguirre v R [2010] NSWCCA 115, in which reference was made to the comments of Howie J in McCullough v R [2009] NSWCCA 94. In that case, at para 30, his Honour said: "Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with property demanded..." 1. The question of whether gratuitous cruelty is made out must, of course, as was conceded by counsel for the offender, involve a matter of assessment based on the facts of the individual case, and there are questions of degree involved. However, I am satisfied that there are aspects which amount to gratuitous cruelty involving the offending against Mr Holbert. In my view, the threats and violence that were directed towards him went beyond anything that needed to be done in order to commit the robbery offence. While this is an aggravating matter, I remain conscious of the fact that there is no evidence that this offender suggested or directly was involved in these cruel aspects of the offending, so it is not a matter which aggravates his offending to a large degree. 2. Taking into account all of the matters to which I have referred, I regard the robbery of Mr Holbert as an offence that falls within the mid-range of objective seriousness. 3. In relation to each of the robbery offences, I accept the submission that this offender's moral culpability is lower than that of the co offender Murphy and closer to that of the person known as Justin. In coming to this view about moral culpability, I have taken also into account the offender's deprived background, which I will make some comments about shortly. 4. In 1999, the New South Wales Court of Criminal Appeal delivered its guideline judgment relating to sentencing for armed robbery offences. As the Court noted in that case, "The fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment." The decision in Henry provides a list of common features for this type of offence which are relevant in determining the nature of, and the term of an appropriate sentence. Of course, the Henry guideline is just that. It is a guideline intended to foster consistency. It is not a prescriptive decision. 5. In regard to what has been referred to as the Henry factors, I make the following observations. 1. The offender was not particularly young. 2. He does not have a limited criminal history, but is more in the nature of a repeat offender. 3. The offence involved the use of weapons which were clearly capable of inflicting serious injury or death and causing real terror in the victims. 4. There was some degree of planning and preparation in the offender and his co offenders being armed, and to some extent, using disguises. There is also the text exchange between this offender and the female co offender, which occurred some days before the offences, which clearly indicated that there was a contemplation of a robbery of Mr Charlesworth. 5. While the offence against Mr Charlesworth involved little actual physical violence, there was a very real threat of serious violence, given the presence of the weapons and the verbal threats, as well as the violence that was meted out to Mr Holbert. Fortunately, the violence that was inflicted upon Mr Holbert does not appear to have had any long term physical effects. 6. While the victims were not in the vulnerable position of being a shopkeeper or similar, they were vulnerable in that they were confined in a room with three armed offenders. I have taken care, however, not to double count this aspect to which I have already made reference. 7. The amount of money and property that was taken was not overly large, but neither was it small. 8. There is the pleas of guilty. However, there was a reasonably strong Crown case given the discovery of the offender's fingerprints and DNA. 1. In my view, the circumstances of this case share some of the common factors that are set out in the Henry decision, and I therefore approach the Henry guideline as being of some relevance. 2. In circumstances where the Henry factors are present, a head sentence in the approximate range of four to five years is indicated as a guide. That range, however, was suggested by the Court of Criminal Appeal in circumstances where there had been a late plea of guilty, which in the circumstances of that particular case had attracted a discount of 10%. 3. In the matter before the Court today, the offender pleaded guilty at the earliest opportunity, and so, as I have said, a discount of 25% will be allowed. As is noted in the Crown's submissions, the application of that greater discount of 25% effectively means that a lower starting point in the Henry range is appropriate; namely, the range of between about three years four months and four years two months: see R v Harris [2011] NSWCCA 105 at para 93. 4. Another matter I should mention is that, and although it is not relevant to the objective seriousness of any of the offending, it is an aggravating factor that the offences were committed while the offender was subject to conditional liberty, given that he was subject to an Intensive Correction Order that had been imposed in the Local Court on 8 July 2022. SUBJECTIVE MATTERS 1. Turning then to subjective matters relating to the offender himself. The offender is now aged 28 and was 27 at the time of the offences, is of Australian Aboriginal heritage, and was raised predominantly in the Dubbo area. His upbringing, however, was seriously impaired by poverty and hardship, instability, violence, and drug and alcohol abuse. His parents separated before he was born and he had almost no involvement with his father who he met only as an adult. Although the offender was raised in his early years by his mother, she had her own serious problems and would encourage the offender to commit offences, and even introduced him methamphetamine when he was aged about 19. 2. Regrettably, but not surprisingly, the offender and his siblings were removed from his mother's care when he was only about ten, and his history of offending started not long after that. He was first incarcerated at age 11 and had regular appearances in the Children's Court after that. Again, regrettably but not surprisingly, this pattern has continued into the offender's adult life, and the psychologist says that he is effectively institutionalised and has significant difficulty in adjusting to life outside of gaol. 3. The offender's background is essentially set out in the psychological report of Ms Spatz dated 20 June 2024. In that report, the psychologist notes a number of aspects including the following. The offender's background includes limited schooling, although, to his credit, he can read and write. He has no real history of employment. His drug use commenced at a young age, and this has been a significant cause of his history of offending. It is, however, a positive matter that the offender sought out treatment for a heroin addiction when he was aged about 24, and since January this year, he has been receiving injections of buprenorphine to assist in staying off drugs. Again, it is to his credit that he reports not engaging in drug use during his current period in custody. 4. He has a limited history of intimate relationships and he has no children, although he hopes in the future to enter a useful relationship with someone and to raise children of his own. As to the offences, the offender told the psychologist that he was affected by drugs at the time. Self-induced intoxication at that time, however, is not a matter that reduces the seriousness of the offences, although it serves to provide some degree of background and context. 5. The psychologist reached the conclusion that at the time of the offences, the offender had the following mental health diagnoses: Opioid Use Disorder of a moderate level, Post Traumatic Stress Disorder, and Social Anxiety Disorder. REMORSE AND RISK 1. In terms of remorse, the psychologist says that the offender expressed a mixture of regret, rationalisation, and recognition of his poor decision making, and had told her that he was affected by drugs at the time of the offences. He also told the psychologist, however, that, "I should not have gone there to begin with. I should have left when the others arrived." 2. Having regard to these comments and the plea of guilty, I accept that there is some genuine remorse in this case. 3. I have also assessed the offender's risk of reoffending and his prospers at rehabilitation. Clearly, his terrible childhood experiences, which of course. are not his fault, his psychological conditions, and his likely institutionalisation are matters of serious concern. While I have no doubt that the offender would like to stay out of trouble and stay out of gaol, his background and his current problems make it impossible to form a positive view about his prospects of doing so. While it is positive that he has sought some treatment for his drug problems and that he hopes to obtain work, enter a relationship, and have children, these future plans are little more than hopes at present. Unfortunately, he remains, in my opinion, a considerable risk of reoffending. 4. His prospects of rehabilitation are, at best, uncertain and guarded. BUGMY FACTORS 1. This is clearly a case which engages the principles engaged in Bugmy v The Queen [2013] HCA 37. The offender's background as a child was indeed one of profound deprivation. It was this that lead him into drug and alcohol abuse and repeat offending and imprisonment, which also resulted in his being sexually abused as a youth. 2. I have given careful consideration to this aspect, and the extent to which it impacts on the offender's moral culpability. The offences before the Court cannot be said to be impulsive ones. Certainly, that is the case in relation to the robbery of Mr Charlesworth. As I have said, I do accept that the robbery of Mr Holbert was more in the nature of an impulsive act. However, I accept, nonetheless, that the offender's moral culpability is reduced to some degree by reason that his background deprived him to a significant degree of the ability to think through the likely consequences of his actions and to make sensible decisions. 3. Unfortunately, the offender's deprived background is a matter that still has its impact on him today, and will likely continue to demonstrate its effects for some kind to come. And so while I have concluded that his moral culpability is reduced to some extent by reason of that background, it is that same background that increases his risk of reoffending, and this is a matter which I have taken into account in terms of personal deterrence and the importance of protecting the community. ONEROUS CUSTODY 1. I have earlier referred to the offender's difficult background and to the diagnoses made by the psychologist. I accept that these things are matters that have made and will continue to make his time in custody more difficult. 2. I also accept that the offender's mental conditions at the time of the offences reduces his moral culpability to some degree, and reduces also the need for the sentence to reflect general deterrence and personal deterrence. However, both personal deterrence and general deterrence nonetheless remain relevant factors. The offender's background and his largely untreated problems are matters which increase his risk to the community, and it is partly for this reason that I think personal deterrence remains important, as does the protection of the community generally: see the well known decision in DPP (Cth) v De La Rosa [2010] NSWCCA 194. PARITY 1. Although there were a number of co offenders, only one of them that being Ms Bailey has been charged to date. I note that she has not yet been sentenced, but is subject to a s 11 type bond, which has been stood over to 6 December 2024 by her Honour Judge Herbert. There are, therefore, no real parity issues to be considered by myself, and in any event, I note that there are considerable differences between the offences for which this offender is to be sentenced and the seriousness of the offences or offences which the female co offender is to be dealt with. DETERMINATION 1. In setting the sentence, I have had regard to the principles set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which I do not intend to recite. I am satisfied for the purposed of s 5 of that same Act that no sentence other than full time imprisonment is appropriate. 2. As I earlier noted, there is a Form 1 document, which is to be taken into account in sentencing for the count 1 offence. In relation to Form 1 documents, I note the comments of the Court of Criminal Appeal in the Attorney General's Application of No 1 of 2002 [2002] NSWCCA 518 which notes that in an appropriate case, a Form 1 document may need to reflect increased weight as to matters such as specific deterrents and retribution, and I do consider that that principle is engaged to some extent in this particular matter. 3. On the other hand, I also have regard to the fact that the matter on the form 1, which is the offence of aggravated enter dwelling was very much a part of the same criminal enterprise which lead to the ultimate robberies. I have taken that into account so as to avoid any perception of double counting in terms of the criminality involved. TOTALITY 1. Given that I have to sentence for two separate offences, I have had regard to totality principles. I have had regard to the fact that there were two serious robberies involving two separate victims. In my view, their needs, therefore, to be a degree of notional accumulation so as to reflect this and acknowledge the harm that was done to each of the victims. 2. However, again, I have taken care to avoid double punishment, given that two of the robbery offences occurred in the context of what was fundamentally a single incident. Nonetheless, there does need, as I have said, to be some degree of notional or accumulation. 3. Because I am intending to impose an aggregate sentence, I need to nominate the indicative sentences for each of the two offences, and I shall do that in just a moment. 4. The indicative sentences are as follows. Each of these are after the application of the 25% plea of guilty discount. For count 1 and taking into account the matter on the Form 1 document, the indicative sentence is a head sentence for three years six months, and for count 2, I nominate the same head sentence three years six months. I will come to the ultimate sentence in a moment. 5. I have, however, made a finding special circumstances to some extent based upon the risk of institutionalisation, and the offender's diagnosed mental health conditions. I also have had regard to the date upon which the sentence should commence. This is made slightly more complex because of the fact that although the offender was arrested on 16 May 2023 and has been bail refused on these offences since that time, he has also, during part of that time, been serving terms of imprisonment for other reasons. Between the 8 July 2022 and 9 November 2023 he was subject to an Intensive Correction Order that he was effectively serving in custody because it had been revoked effectively from 16 May 2023 involving an offence of breaking and entering. Furthermore, from 16 May 2023 he until 15 March 2024 he was also serving the non parole period for an offence of assault. 6. Having regard to those matters and totality principles, I intend to backdate the sentence to some degree, but not completely to 16 May 2023. The sentence will be backdated to the extent of approximately half of the period that has been served on these offences since 16 May 2023 up until today. 7. The head sentence I impose, therefore, is as follows: four years two months. I impose a non-parole period of two years ten months. 8. Each of those will date from 17 December 2023. 9. The head sentence, therefore, will expire on 16 February 2028. The non-parole period will expire on 16 October 2026. 10. Mr Crown, Mr Wozniak, anything to raise about any of those figures or any factual matters? 11. WOZNIAK: No, your Honour. Those figures appear correct. 12. CARLBERG: Your Honour, I haven't had a chance to check the figures, but I trust they're correct. 13. HIS HONOUR: Thank you, well, Mr Wozniak, you'll speak to your client? 14. WOZNIAK: Of course, your Honour. 15. CARLBERG: Please the Court. ********** 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: 20 November 2024