New South Wales Court of Criminal Appeal CITATION : R v Hoskins [2000] NSWCCA 415 FILE NUMBER(S) : CCA 60561 of 1999 HEARING DATE(S) : Friday 6 October 2000 JUDGMENT DATE : 18 October 2000 PARTIES : Richard Hoskins (applicant) Regina (respondent) JUDGMENT OF : Simpson J at 1; Hidden J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0184 LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : J Stratton (applicant) L M B Lamprati (Crown) SOLICITORS : Legal Aid Commission (applicant) DPP (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - domestic violence - breaking into victim's home and assaulting her - errors in remarks on sentence - no question of principle Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60561 of 1999 SIMPSON J HIDDEN J Wednesday 18 October 2000 Regina v Richard Hoskins Judgment 1 SIMPSON J: I agree with Hidden J. 2 HIDDEN J: In the District Court at Coffs Harbour the applicant, Richard Barry Hoskins, adhered to a plea of guilty which he had entered in a local court to a charge of breaking and entering a dwelling house and committing therein a felony, that is, assault occasioning actual bodily harm. This is an offence under s112(1) of the Crimes Act, carrying a maximum sentence of fourteen years imprisonment. He asked the sentencing judge to take into account on a Form 2 a further offence of being carried in a conveyance without the consent of the owner. Taking that offence into account, his Honour sentenced him to imprisonment for six years, comprising a minimum term of three years to commence on 12 July 1999, the date he was taken into custody, and an additional term of three years. Facts 3 The facts of the offence for which the applicant was committed to the District Court for sentence may be stated briefly. The applicant had been in a relationship with the complainant, Nerrida Kate Few, and they had a three year-old son. That relationship had come to an end and Ms Few retained custody of the child. 4 In the early evening of 12 July 1999 the applicant went to the home unit where Ms Few lived. He knocked on the front door but Ms Few, knowing that it was he, did not answer it. The applicant climbed onto a balcony and banged on a glass sliding door. Ms Few telephoned a neighbour, and then ran to a bedroom and locked herself inside. The applicant returned to the front door and kicked it in. He forced open the bedroom door and questioned Ms Few about the whereabouts of the child. She replied that he was at her father's house. The applicant punched her on her mouth and pushed her head against the wall. Her bottom lip was cut and was bleeding and she later complained of headache. 5 The neighbour whom Ms Few had telephoned arrived and demanded that the applicant leave the unit. The applicant pushed him in the chest, saying, "I'll wait for you. I'll finish this inside gaol." Before he left the unit, he kicked out at a table, breaking the glass in several picture frames. As he left the building he smashed a glass panel in a lower front door. 6 Police attended the unit and then went to the applicant's home, but he was not there. However, some hours later he handed himself in to police. He expressed no remorse for what he had done, saying of Ms Few that "she causes it all the time". He was observed to be extremely agitated, and was aggressive and abusive towards the officers in the charge room at the police station. He taunted police to fight him and he had to be physically restrained. 7 He gave evidence, which his Honour accepted, that he was very intoxicated that night. He explained that the incident arose from the breakdown of his relationship with Ms Few and his desire to see his son, although his Honour was satisfied that Ms Few was not refusing him access to the child at the time. 8 The offence taken into account on the Form 2 occurred on 1 July 1999. His Honour was not supplied with any particulars of it and no more need be said about it. Subjective case 9 The applicant is an Aboriginal man who was twenty years old at the time of the offences, and is now twenty-one. He has a lengthy criminal record for someone of his age, commencing at the age of eleven. Most of his appearances were in Children's Courts, mainly for offences of dishonesty. However, he has some entries for offences of violence, for which control orders were imposed. It seems that they were also incidents of domestic violence, in two of which Ms Few was again the victim. 10 A pre-sentence report reveals that the applicant had a disturbed upbringing. Parental care and control was inadequate, and he spent significant periods of time in the care of others. He was committed to wardship in 1991. He left school in Year 9, at the age of sixteen, and engaged in seasonal labouring work. 11 He had been what the author of the pre-sentence report described as "a binge drinker". He used marijuana from time to time and he told the Probation and Parole officer that he used heroin for the first time on the day of the offence. In evidence, he acknowledged that he had a significant problem with alcohol, although he said that his lifestyle improved for a brief period when he undertook the study of Christianity (influenced, apparently, by the neighbour who came to the assistance of Ms Few on the night of the offence). 12 His Honour took all these matters into account and, in the light of the applicant's youth and in the hope of fostering his rehabilitation, found special circumstances warranting a departure from the usual proportion between minimum and additional terms. The application 13 Mr Stratton of counsel, who appeared for the applicant in this Court but not in the District Court, argued that the learned sentencing judge fell into error in a number of respects in his reasons for sentence and that, in any event, the sentence is manifestly excessive. 14 In the course of his remarks on sentence, his Honour said: I can imagine the terror that his conduct caused the victims, all of them, Miss Thew (sic), the neighbour, Mr Voss, who entered unsuccessfully into the premises, and the police, properly seeking to do their duty, when this wild man wants to fight them and resist arrest and cause them harm. 15 Evidence of what occurred at the police station was admitted without objection, and it was relevant to demonstrate the applicant's emotional state on that night and his lack of remorse for the violence he had inflicted upon Ms Few. Nevertheless, I consider there is force in Mr Stratton's argument that his Honour's characterisation of the police officers as "victims" suggests that he saw some continuity between the applicant's conduct at Miss Few's home unit and at the police station, so as to treat his behaviour at the police station as a factor aggravating the offence for which he stood for sentence. In fact, as I have said, the incident at the police station took place some hours later. It may have given rise to other charges, but it could not bear upon the proper assessment of the criminality of the applicant's conduct at Miss Few's home unit. 16 In his remarks, his Honour said that Miss Few "was treated for the punch to the mouth". This was a factual error. I have earlier referred to her cut lip and her complaint of headache, but there was no evidence that she sought any medical treatment. 17 Mr Stratton argued that his Honour gave undue weight to the applicant's criminal record, which he summarised in the remarks on sentence, describing it as "appalling" for one so young. One might question the use of that epithet but there is no doubt that it is disturbing. Of more significance, however, is his Honour's assertion that the applicant was "sent to a gaol sentence" for one of the prior offences of violence involving Miss Few. That is not so. As I have said, each of those offences of violence led to the imposition of a control order in a Children's Court. The sentence passed by his Honour is the first gaol sentence ever to have been imposed upon the applicant. 18 I am persuaded by the combination of these errors that the sentencing judge's discretion miscarried, and that this Court should intervene. It is unnecessary, then, to consider Mr Stratton's final submission that the sentence is manifestly excessive. However, the Crown Prosecutor in this Court acknowledged that the sentence is severe and, having decided that it is vitiated by error, I am of the opinion that a lesser sentence should be passed: s6(3) of the Criminal Appeal Act 1912. In so saying, I have regard to all the material that was before his Honour and, in addition, to an affidavit of the applicant received in this Court. From that affidavit, and its annexures, it appears that he has sought to further his general education and employment skills, as well as to pursue an anger management course, while in custody. 19 His Honour passed sentence under the Sentencing Act 1989, since repealed. The sentence I propose should be framed in accordance with the Crimes (Sentencing Procedure) Act 1999. Clearly, there are special circumstances, within the meaning of s44(2) of that Act, calling for a non-parole period less than three quarters of the term of the sentence. 20 I would grant leave to appeal, allow the appeal and quash the sentence passed in the District Court. In lieu, I would sentence the applicant to imprisonment for five years, to date from 12 July 1999, with a non-parole period of two years and three months. He would be eligible for release on parole on 12 October, 2001. ********** 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.