Regina v Hatch [2006] NSWCCA 330

New South Wales Court of Criminal Appeal

CITATION: Regina v Hatch [2006] NSWCCA 330

HEARING DATE(S): 12 October 2006 JUDGMENT OF: Tobias JA at 27; Grove J at 1; Bell J at 28

EX TEMPORE JUDGMENT DATE: 10/12/2006

DECISION: Crown appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SPECIALLY AGGRAVATED ENTRY INTO HOUSE WITH INTENT TO COMMIT INDICTABLE OFFENCE - FAILURE TO CONTROL ANGER ARISING OUT OF PARTNER'S CONDUCT WITH FORMER ASSOCIATE - SENTENCE - SUSPENSION - MANIFEST INADEQUACY - CROWN APPEAL - CHANGE SINCE SENTENCE - DISCRETION OF COURT TO DISMISS CROWN APPEAL EXERCISED

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R. v Bugmy [2004] NSWCCA 258 CASES CITED: R. v Donovan 1934 2 KB 498 R v Smith 1837 8 C & P 173

PARTIES: Regina v Matthew Hatch

FILE NUMBER(S): CCA 2006/1712

COUNSEL: W. Dawe QC (Crown/Appellant) J. Stratton SC (Respondent)

SOLICITORS: S. Kavanagh (DPP) S.E. O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/06/0003

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 30 June 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1712

TOBIAS JA GROVE J BELL J

12 October 2006 REGINA v MATTHEW HATCH Judgment

1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Nicholson DCJ in the District Court in proceedings which were heard in Bourke and later in Sydney. The respondent had been committed for sentence after pleading guilty in Bourke Local Court to a charge of entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation contrary to s 111(3) of the Crimes Act 1900. The specified offence was assault occasioning actual bodily harm and the circumstance of special aggravation was that he wounded the occupant of the house. 2 The structure of applicable maximum penalties pursuant to s 111 is that entry with relevant intent is punishable by up to ten years imprisonment but up to fourteen years in circumstances of aggravation and up to twenty years in circumstances of special aggravation. Section 105A prescribes that wounding any person is a circumstance of special aggravation. 3 His Honour sentenced the respondent to imprisonment for twelve months which he suspended upon entry by the respondent into a bond to be of good behaviour for that period pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The expressed reason for not specifying a non parole period and imposing a fixed term was the intention to suspend the sentence. His Honour also imposed a number of conditions which were, in short, that the respondent accept supervision of the Probation and Parole Service and follow the reasonable directions of the officers of that Service, that he submit to random urine analysis three times monthly during the first six months of sentence and thereafter once per month, and to supply to the Probation and Parole officer each month during the currency of the bond a "report or some evidence" that the respondent had been attending counselling for mental health problems through the Darling River Medical Centre. Whether the lastmentioned condition is sufficiently certain to be valid is not an issue in this appeal: cf R v Bugmy [2004] NSWCCA 258 and compliance with these conditions as stated should, for the purposes of the appeal, be regarded as contributors to the punishment imposed. 4 The learned sentencing judge recounted the facts in much detail and what was said has not been challenged and can be regarded as accepted. A summary now will suffice. 5 The respondent had been in a relationship with a female who was, at the time of the offence, aged seventeen years and I will refer to her simply as "CD". At a previous time CD had been in another relationship with one Aaron McKellar. As at 16 July 2005 the respondent and CD were parents of a child who had been born in April 2004. Both the respondent and Aaron McKellar in fact have children from former relationships other than with CD. 6 Several days beforehand an argument occurred between the respondent and CD because she was "running around" with McKellar. Consequently the respondent packed his belongings into his car and he was, in effect, sleeping in and living from the vehicle. 7 On the evening of 16 July the respondent encountered a relative of McKellar and drove him to the latter's house. CD was there. The respondent made derogatory comments to her and argument erupted. The respondent left the house and went to his car but he returned with a baseball bat from among his belongings and re-entered the house. He struck McKellar three or four times with the bat causing a laceration to his head which required stitching and the fracture of a finger bone. The respondent was then confronted by two male relatives of McKellar and he left. In the meantime, McKellar acquired the baseball bat and used it to shatter the windows of the respondent's car. McKellar was subsequently taken to hospital for treatment where he was discharged after a stay of about ten hours. 8 The respondent gave evidence in the sentencing proceedings. He told his Honour that he had no excuse and that anger had got the better of him. He had earlier been drinking. He also said in response to a question by his Honour that he was "firmly under the belief that eventually he (McKellar) was going to attack me" but no claim of self defence was advanced. 9 In his remarks on sentence his Honour stated the age of the respondent to be twenty four years whereas in fact at the time he was twenty six years of age. He also referred to the maximum penalty for the offence of assault occasioning actual bodily harm as two years imprisonment but this is applicable to common assault and the correct figure is five years imprisonment. 10 The Crown has also drawn attention to a number of references by his Honour to the respondent's formation of an intention to commit the stated serious indictable offence including: "It will become obvious as I continue on that I have some concerns about whether I ought to have accepted that plea because it seems to me that it may well have been after he entered the second time that he formed the intent to strike McKellar."