New South Wales District Court CITATION: R v Steven Ray HUGHES [2008] NSWDC 360 JUDGMENT DATE: 5 September 2008 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: For the charge of specially aggravated detention for advantage - non-parole period of 6 years, balance of term of 3 years. For the charge of robbery in company - non-parole period of 5 years, balance of term of 2 years. NB : See also R v Steven Ray HUGHES [2008] NSWDC 361 for additional remarks on sentence. CATCHWORDS: CRIMINAL LAW - sentence - robbery in company - specially aggravated detain for advantage - convicted by jury - actual and threatened violence - use of a weapon - committed in company - substantial emotional harm - taxi driver - victim particularly vulnerable person - offence committed while on parole - extensive criminal record LEGISLATION CITED: Crimes Act 1900 s 86(3), s 97(1) Crimes (Sentencing Procedure) Act 1999 CASES CITED: Regina v Collett (Court of Criminal Appeal, 7 June 1979, unreported) PARTIES: Regina Steven Ray Hughes FILE NUMBER(S): 2007/151013 COUNSEL: Mr Moberley Mr Buckman SOLICITORS: Director of Public Prosecutions JUDGMENT 1. On 21 July 2007 Steven Ray Hughes instilled terror into a taxi driver by kidnapping him in his own taxi and robbing him. As a result he was charged with two very serious offences. One was robbery in company, carrying a maximum of twenty years imprisonment and the other was specially aggravated detain for advantage, carrying a maximum of twenty-five years imprisonment. 2. Mr Hughes pleaded not guilty to both charges but was convicted by a jury of both offences. It is my task now to sentence Mr Hughes. 3. First I need to say a little more about what was involved in these offences. Mr Syed Rahman had been a taxi driver for eight or ten years. He picked up some men at about 1.30 in the morning on Saturday 21 July 2007. He drove them from Petersham to Five Dock. When they got to Five Dock Mr Rahman was attacked by some men including Mr Hughes. He was punched five or six times to his head and arms, his wallet was taken and money demanded of him accompanied by threats of killing him. He felt something jabbed into his right side which he believed was a small handgun. In fact it was a spud gun which I am satisfied, beyond reasonable doubt, was held by Mr Hughes. Mr Rahman was forced into the back of the taxi and one of the men started the taxi up and drove it. Mr Rahman's neck was squeezed until he had difficulty breathing. At that stage he saw what was being held and it appeared to him, understandably, to be a small black handgun. It was pushed into the side of Mr Rahman's head. 4. There were three or four men in the car. They began searching his clothes and ripping his pants. Mr Rahman heard things like "Finish him off". This caused Mr Rahman to believe that he was going to be killed. 5. His watch and mobile phone were stolen. At the same time the man behind the wheel drove the taxi at high speed around the streets mounting footpaths and gutters. Mr Rahman broke down and pleaded for his life. His pleas were ignored to the extent that he was still detained and the car sped on its way. Mr Rahman pointed out that he had a wife and child at home. Discussion continued amongst the men about whether they would kill Mr Rahman. Eventually they forced him from the car. Mr Rahman genuinely believed that he would be killed during the episode. 6. Eventually, after he was released, Mr Rahman returned to his taxi and drove it to some police who happened to be nearby attending an accident. Mr Hughes was arrested a short time later and when being searched police found a small black spud gun and the phone and watch belonging to Mr Rahman. Mr Rahman suffered a laceration above his right eye and swelling and bruising around his eye and face. 7. I now need to make some assessment of just how serious these crimes are. I take into account, in assessing the seriousness of both crimes, the following factors which the Crimes (Sentencing Procedure) Act 1999 says are aggravating features of a crime. These are the factors. Insofar as the robbery is concerned it involved actual and threatened violence. I do not take that into account for the detention charge because the charge itself involves, as a component, the infliction of actual bodily harm. Both offences involve the use of a weapon. Insofar as the detention charge offence is concerned it was committed in company. I find that the offences involve gratuitous cruelty in the threats that were made to Mr Rahman's life. The emotional harm and loss was substantial. I will refer to that in due course by reference to the victim impact statement. The offence of detention was committed without regard for the public safety by the manner of driving of the taxi. The victim is regarded, by Parliament, as a particularly vulnerable person being a taxi driver. 8. Because certain aggravating factors were put to me on behalf of the prosecution, which I do not accept, I should record the items which I do not accept as aggravating features under s 21A. The offences were committed for financial gain. That is an element of both offences. There appears to be some degree of planning. I regard the offences as opportunistic rather than planned. There was a grave risk of death in the manner of driving. I do not find that to be objectively the case although I take it into account so far as the impact on the victim is concerned because of his state of mind. 9. Two other factors are relevant as aggravating features of the offending behaviour. The first is that these crimes were committed by Mr Hughes when he was on parole. In other words he had been released into the community instead of serving a sentence which had been imposed upon him. That release was to assist him to further his rehabilitation, at least that was one of the purposes. Mr Hughes abused that opportunity and the freedom which had been extended to him by committing these very serious crimes. 10. The second factor which needs to be taken into account is Mr Hughes' criminal record. It is very bad. It points to a need, in sentencing Mr Hughes, for me to take into account both specific and general deterrence as important factors. The record discloses that Mr Hughes in now 22, having been born on 2 January 1986. After some relatively minor offences as a juvenile he commenced committing more serious offences as an adult. He has received a number of prison sentences for crimes such as common assault, assaulting an officer in the execution of duty and an offence of aggravated commission of a serious indictable offence in a dwelling. For that last crime he was sentenced to four years imprisonment with a non-parole period of 12 months. He was released on parole on 3 February 2006. His parole period does not expire until 3 February 2009 and it was during that parole period that he committed these offences. 11. It is important in this case to note the circumstances of some of his previous crimes. One of them, committed on 21 August 2002, involved a taxi driver. It was less serious than the present crimes. Mr Hughes approached a taxi driver, demanded his money and then hit him. Such a crime emphasises the importance, in sentencing Mr Hughes, of protecting people in the community, such as taxi drivers, who are especially vulnerable to these kinds of offences. 12. Another crime committed on 7 August 2000 involved Mr Hughes and another person assaulting a young man in the street and demanding money. 13. The most serious offence on his record was committed on 4 February 2005, that is the offence that he received the four year gaol sentence for. Mr Hughes and another man broke into a block of units in Bondi. The only occupant was a 13 year old boy. Mr Hughes and the other man ransacked the boy's room and demanded to be shown where everything was. They ransacked other rooms. The boy was hit on the back of the head at one stage. Before leaving, the boy's hands were tied behind his back and he was gagged. The men stole computers and alcohol and other items from the house and were arrested shortly afterwards. 14. I find that the robbery offence I am sentencing Mr Hughes for was in the middle of the range of objective seriousness for this kind of offence. Insofar as the detention offence is concerned I need to refer to some factors which have been said by the authorities to be relevant to these kinds of crimes. In Regina v Collett (Court of Criminal Appeal, 7 June 1979, unreported) Roden J listed a number of factors which are relevant to this kind of offence. The length of time of detention is an important factor. In this case the length of time was relatively short. A second factor is the extent to which fear or terror is instilled in the victim and how the victim is treated. As I have said Mr Rahman was understandably terrified by the experience and was physically and emotionally abused by his captors. The third matter is the purpose of the detention. In this case it was the not unusual purpose of obtaining money. A fourth factor is whether there are persons, other persons who are involved from whom a ransom may be sought and that is not a relevant factor here. 15. Because of the aggravating factors which I have referred to and taking into account the matters I have just referred to from Collett I regard this offence as also being in the middle of the range of objective seriousness. I regard the offence as being well within that range. 16. There is sadly little that can be said in Mr Hughes' favour so far as his personal attributes are concerned. A presentence report, which became exhibit SB, records an abusive upbringing. It is described in the report as an alcohol fuelled abusive upbringing with his father being particularly violent towards him. Mr Hughes was born in New Zealand and came to Australia aged 12. He is close to his mother and two brothers. He left school aged 16 after year 9. He had a disruptive school life because he would be regularly suspended. He has had short-term jobs, the longest being as a labourer for six months. He has a history of drug and alcohol abuse. The report says that despite having undertaken alcohol and other drug counselling and relapse prevention programs whilst previously under supervision, Mr Hughes maintained that they had not helped very much and that he really needed full-time residential rehabilitation to address issues of alcoholism and drug abuse. The report makes that recommendation and I agree with it. The report makes a number of other recommendations which I will take into account in my own recommendations to the Parole Authority. As the report says Mr Hughes has had a lifestyle pattern of "periods of incarceration, followed by relatively brief periods of parole which are eventually breached through reoffending, leading in turn to further incarceration." Attempts to break the cycle have had limited success. 17. He is unsuitable for a Community Service Order and ineligible for a Periodic Detention Order. Neither of those is, in any event, an appropriate penalty. 18. Given the seriousness of these crimes and the need to emphasise, as I say, personal and general deterrence, I am satisfied that no penalty other than imprisonment is appropriate in a case such as this. 19. The prison sentence needs to be a long one because of the seriousness of the crimes and the need for me to take into account, as Mr Moberley who appeared as Crown Prosecutor has submitted, the protection of the community and deterrence. Mr Moberley submitted that Mr Hughes' rehabilitation prospects should have little or no role to play in sentencing Mr Hughes. 20. Mr Buckman, who appears for Mr Hughes, takes exception to that submission. I regard rehabilitation as having some role to play in sentencing Mr Hughes. That is because he is still a young man aged twenty-two who clearly has a problem with alcohol and drugs, he has not completed his secondary education and there would clearly appear to be an anger management problem. 21. Mr Moberley submits that there should be some partial accumulation of the sentences. I propose to impose sentences which will be completely concurrent. The reason for that is that these two offences occurred at the same time and involve the same circumstances with the same victim. 22. In theory there is a case for the sentence commencing on 4 February 2009, that is when the parole period expires for the previous sentence that was imposed on Mr Hughes. That parole has been revoked as a result of these offences. Since 21 July 2007 Mr Hughes has been in custody. Between that date and 9 August 2007 he was in custody, bail refused, for these offences and since 9 August 2007 has been in custody as a result of the revocation of the previous parole. I propose to backdate this sentence to 21 July 2007. That is one of the concessions which I find it appropriate to make in favour of Mr Hughes' rehabilitation because of his age. Stand up Mr Hughes. 23. For the crime of specially aggravated detention for advantage, contrary to s 86(3) of the Crimes Act 1900, I set a non-parole period of six years to date from 21 July 2007 and to expire on 20 July 2013. The balance of the term will be three years from 21 July 2013 to 20 July 2016. 24. For the robbery in company against s 97(1) of the Crimes Act 1900 I set a non-parole period of five years from 21 July 2007 until 20 July 2012. The balance of the term will be two years from 21 July 2012 until 20 July 2014. 25. The earliest day on which it appears, on the information available to me, that Mr Hughes will become entitled to be released from custody is 20 July 2013. 26. When Mr Hughes' eligibility for parole is being considered by the Parole Authority I recommend that particular attention be given to strategies to address his drug and alcohol abuse with particular reference to the possibility of intensive full-time residential rehabilitation. 27. Now Mr Hughes the effect of all that is you have got nine years. The minimum term that you have to serve is six years. I backdated it to the date that you were arrested for this offence on 21 July 2007 and the six years expires on 20 July 2013. You are then eligible to be considered for parole. You understand that, you have had it happen before. The sentence is too long for me to direct parole so on 20 July 2013 the Parole Authority will consider you for parole. Have a seat. I will just add this to remarks on sentence. 28. In fixing the head sentence for the offence of specially aggravated detain for advantage, because of the seriousness of that crime and the maximum sentence for it, I would regard an appropriate head sentence as one of twelve years but because of Mr Hughes' youth and some, though limited, prospects of rehabilitation I reduce that to nine years. I have adjusted the proportion between the non-parole period and the parole period to take into account the special circumstance that Mr Hughes will need longer than the standard period on parole in order to address his personal problems. Now Mr Modder, Mr Buckman are there any matters which I have not referred to or corrections that need to be made? BUCKMAN: No not that I can see your Honour. MODDER: Not from the Crown your Honour. HIS HONOUR: Did you want to see your client before he's taken down? BUCKMAN: No I can see him downstairs your Honour. HIS HONOUR: Mr Hughes can be taken down. ********** 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.