District Court New South Wales Medium Neutral Citation: R v Hona [2013] NSWDC 300 Hearing dates: 26 September 2013 Decision date: 26 September 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 18 months. The execution of the sentence is suspended under s 12 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - Attempt to enter dwelling house - Aggravation - In company - Person inside Cases Cited: Delaney v R; R v Delaney [2013] NSWCCA 150 Category: Sentence Parties: The Crown Ben Wiremu Hona Representation: The Director of Public Prosecutions - Crown Legal Aid Commission - Offender File Number(s): 2012/202585 Judgment 1HIS HONOUR: The offender, Ben Wiremu Hona, has pleaded guilty to an offence of attempting to enter a dwelling within intent in circumstances of aggravation. The circumstances of aggravation could be said to be two; he was in company at the time and he knew that there was a person inside. It does not really matter which one the Crown relies on, both are present. 2The offence was committed when the offender went to the premises of a Paul Murphy. The offender was know to Mr Murphy. The offender wanted some drugs and he wanted some money from Mr Murphy so that he could buy those drugs and so Mr Hona banged on Mr Murphy's door early one Sunday morning. When Mr Murphy opened the door he saw Mr Hona who told him he was hanging out for heroin and wanted $50. Mr Murphy told him to leave. It appears that Mr Hona did so but a couple of hours later he was back again. When Mr Murphy was awoken a second time he did not see the offender but he saw the offender's partner, a Ms Roberts. She asked for $50 this time but again Mr Murphy said that he had no money and refused to give her what she asked for. It appears that what was happening was that Ms Roberts was acting as a decoy to get Mr Murphy to the front door of his premises while Mr Hona entered at the rear. 3Mr Murphy lives in a block of home units. The window to his lounge room is on the third storey. What was happening while Mr Murphy was talking to Ms Roberts at his front door was that Mr Hona had climbed up to the lounge room window and was attempting to pull the bottom sliding pane of the window up. This was not as difficult as it may seem because Mr Hona did not have to climb three storeys. He was able to climb from a landing onto an air conditioning unit, a comparatively small distance but when he was on the air conditioning unit he was three storeys up in the air. 4Mr Murphy realised what was going on when he heard some sounds coming from his lounge room. He went to the lounge room and saw Mr Hona trying to come in from outside. He closed the window. As that happened Mr Hona lost his balance and fell three storeys to the concrete below. Ambulance and police were called. Mr Hona was taken to hospital. Somewhat surprisingly his injuries, despite a three storey fall on the concrete, are not all that severe. He required stitching to a laceration on his head and it was found that he had broken his leg. He remained in hospital for a couple of weeks until he was released into the custody of police. He remained in custody until he was released on bail after about four months. He appears to have made a relatively good recovery from his broken leg, although it occasionally causes him pain. 5Mr Hona pleaded guilty at an early stage to the charge that he currently faces and so the sentence I will impose upon him will be 25% less than it would otherwise have been. 6Mr Hona is now 32 years of age. A psychological report was tendered on his behalf which, it has to be said, is of some concern as regards the prospects for Mr Hona living a law abiding life in the future. Various tests were administered to him and he scored highly in a number of areas, suggesting a high probability of further offending in the future. Ordinarily this would tend to suggest that perhaps a higher than usual need for a sentence which will act as a personal deterrent to Mr Hona, however in the circumstances of this case as will be seen I have attempted to deal with this issue in another manner. 7Mr Hona had a difficult upbringing. His father was a very violent man. He used to bash his mother. When his mother finally went to the police his father was removed from the family home. When the offender was about 14 his father forged his mother's signature and obtained passports for him and his brother and took them to New Zealand illegally. The offender was then once again subject to his father's violent behaviour. About two years later the offender and his brother ran away from his father and, with the help of police, they were returned to his mother's care in Australia. Unfortunately, whilst at that time the offender's mother was living with a man who the offender described in positive terms, after he died she formed a relationship with another man who was also violent and used to inflict violence upon Mr Hona. That relationship has now ended and his mother lives alone. 8Apart from times when the offender has been living in Sydney, he has been living in Moree with his partner since about the year 2000. Unfortunately his partner has troubles with drugs as does Mr Hona, indeed his partner was the person who acted as the decoy during the commission of this offence. Together they have six children but there are, I gather, problems in the relationship. At least part of the reason for those problems must surely be the offender's behaviour, although there are suggestions also that other difficulties arise from his partner's behaviour as well. 9The offender has a criminal history. It is relatively lengthy but they are mainly offences dealt with in the Local Court and there are very few occasions on which the offender has served sentences of imprisonment. As is often the way, as offenders mature their offending becomes less common and that appears to be the case in Mr Hona's case. His last offence was in April 2012, an offence of shoplifting. In 2011 there were drug offences, consistent with the offender's problems with drug addiction, as well as much less serious offences such as using a concession ticket when he was not entitled to use that ticket. 10The offender probably realises that he cannot continue to act as he has been if he wants to be a good father to his children. The youngest of his children is about three years of age, the eldest 14. In Moree the offender is supported by members of his church, the Moree Presbyterian Church. A reference from Reverend Daniel Swan and a letter from an organisation called Australian Indigenous Ministries associated with the church were tendered to me today. It is clear that the offender has available to him a substantial level of support should he choose to avail himself of it, but ultimately he must take responsibility for his own actions. I will give an example. It is clear that the offender only turned up to the appointment with a psychologist because the Reverend David Swan managed to get him there. Ultimately it is the offender's decision, it is Mr Hona's decision, how he acts in the future and he needs to make the decision that he will take actions which will promote his rehabilitation. There is a limit to what others can do for Mr Hona and the only person ultimately can make a difference to Mr Hona's behaviour in the future is Mr Hona himself. 11At one stage Mr Hutchinson who appears for the offender suggested the possibility of a s 11 remand. The Crown response was twofold. She firstly pointed out that Mr Hona had been in gaol for almost a year already and there was not much point in further extending that period. Anything that could be done must already have been done was the submission of the Crown. I accept that submission. There is no point in delaying the sentencing of Mr Hona any further. The other submission of the Crown as regards the s 11 possibility was that there was no alternative but that Mr Hona serve a sentence of fulltime custody. 12It is to that issue that I will now turn. The circumstances of aggravation that he was in company and knew that there was someone inside are not the most serious forms of aggravation and indeed it was part of the plan I gather that Mr Hona would be able to get in and out of Mr Murphy's premises without being detected. There was thus no expectation that Mr Murphy would ever be confronted with Mr Hona inside his premises and the intent was to commit the crime of larceny, an offence which carries a maximum penalty of five years. These matters need to be born in mind when the objective gravity of this offence is considered. 13I also take into account the extra judicial punishment, if I can call it that, occasioned when Mr Hona plummeted three storeys to the concrete below. Although he has made a good recovery there is some residual disability and the experience of being in hospital for two weeks and the pain that must have been occasioned was certainly something that I would consider is significant detriment to Mr Hona. 14The Crown also submitted that I should take into account the principle of parity in favour of the Crown. There are two things to be said about that. The first is that the principle of parity only works one way. It is not something that the Crown is ever entitled to rely on. That has been made clear on many occasions, perhaps the most recent in the decision of Delaney v R, R v Delaney [2013] NSWCCA 150. The second thing I want to say about the Crown's attempted reliance on the principle of parity is that it appears that the sentence imposed by North DCJ on Ms Roberts, Mr Hona's cooffender was selected because it was the time that Ms Roberts had already served in custody. North DCJ imposed a nonparole period of ten months and 26 days on Ms Roberts which was precisely the period that she had served on remand until his Honour sentenced her. It is somewhat speculative but I rather get the impression that if Ms Roberts had served less time in custody on remand a lesser nonparole period would have been imposed by his Honour. 15I should clarify one matter. I think I mentioned that the offender was on bail at the time of this offence. Insofar as that might suggest a criminal history beyond that which I have referred to, I should make it clear that the offences which Mr Hona was on bail for were withdrawn. Of course it is still a matter of aggravation that he was on conditional liberty at the time of this offence but there should be no suggestion that he has committed the offences for which he was on bail at the time. 16The offender was in custody for four months and four days before being granted bail. That is a matter, of course, I am able to take into account in determining both the length of the sentence to be imposed at this stage and also the manner in which it is to be served. 17I am satisfied that a sentence of imprisonment is required. I have taken into account the time served whilst bail is refused and determined therefore that the length of sentence that I will impose is such that a suspended sentence of imprisonment is possible. Here I return to something I said earlier. The offender needs to be deterred from acting as he has been. Knowing that if he commits further offences he will necessarily go to gaol, should act as a substantial incentive for him to refrain from committing further offences during the period of the s 12 bond that I will shortly impose. As I mentioned earlier the only person who can make a change in Mr Hona's behaviour is Mr Hona himself. His church is doing what they can but I am doing what I can too by making it clear to Mr Hona that if he commits further offences I will send him back to gaol without a moment's hesitation. 18The offender is sentenced to imprisonment for a period of 18 months. I order that the execution of that sentence is suspended on the offender entering into a bond to be of good behaviour for the period of the sentence. The terms of that bond are as follows. The offender is to be of good behaviour. He is to refrain from committing any act of violence whether within his family or outside it. He is to use no illegal drugs whatsoever. He is to accept the assistance of those from the Moree Presbyterian Church and Australian Indigenous Ministries and do whatever they suggest in modifying his behaviour. He is to be supervised by the Probation and Parole Service and obey all their directions, in particular as regards participation in rehabilitation programs. He is to appear before this Court if called upon to do so at any time and he is to advise this Court of any change in his residential address. 19As well as accepting supervision from the Probation and Parole Service as regards rehabilitation he must also comply with their directions as regards participation in courses regarding anger management and relationship counselling. 20Now Mr Hona you have got something of a good deal here so far because you might think it is a good result for you but let me tell you this that if you are back before me you are going to be worse off if I had sent you to gaol now. OFFENDER: Yes. HIS HONOUR: I have given you an opportunity and if you show me that you do not take advantage of that opportunity then I am going to think that there is no hope for you and the best thing for you is to lock you away for as long as I can so that you do not commit further offences. Do you understand that? OFFENDER: Okay, I understand. HIS HONOUR: You are actually going to be worse off if you breach the bond that I have just put you on than if I sent you to gaol now. OFFENDER: Yes I understand. HIS HONOUR: I want to say one more thing to you Mr Hona, because I want this to be entirely clear, if you are back before me you are going into gaol. OFFENDER: Yes. HIS HONOUR: Nothing needs to be said when you are back before me because that is where you are going to go, do you understand? OFFENDER: I understand thank you your Honour. HIS HONOUR: Thank you for your assistance Madam Crown, thank you Mr Hutchinson, I now adjourn. ********** 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: 12 March 2014