District Court New South Wales Medium Neutral Citation: R v Hagan [2015] NSWDC 403 Hearing dates: 9, 13, 17 and 20 November 2015, 18 December 2015 Date of orders: 23 December 2015 Decision date: 23 December 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: See paragraph [40] Catchwords: CRIMINAL LAW – particular offences – offences against the person – armed robbery against a taxi driver and robbery of a man at an ATM; CRIMINAL LAW – sentence – relevant factors – theft of $750 from taxi driver – knife used – threats made towards taxi driver – theft of money from an ATM – offences committed whilst on parole – finding that offences fell within Henry guideline – subjective features – finding of remorse - Aboriginal offender aged 24 – application of Bugmy v The Queen - previous ward of the state – exposure to domestic violence as a child - lengthy criminal history – risk of institutionalisation - drug addiction issues – engagement with methadone program - offender of below average intelligence - limited history of employment - poor attitude to supervision on parole – risk of re-offending – finding of special circumstances – early plea of guilty – 25% discount on sentence - aggregate sentence of 3 years 9 months imprisonment with a non-parole period of 2 years imposed - partial backdating of sentence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v BP [2010] NSWCCA 159 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown) Sean Hagan (Offender) Representation: Solicitors: Ms T Hennessy (for Director of Public Prosecutions (NSW)) Mr C Dane (for Offender) File Number(s): 2014/269112 Publication restriction: Pseudonyms have been adopted for the names of the offender's children Judgment 1. Sean Hagan, for a young man of 24, has a long criminal record. I am sentencing him this afternoon because he committed an armed robbery against a taxi driver. In addition he robbed a man at an ATM a few days later. When I am sentencing him for the armed robbery he has asked me to take into account the robbery charge. He has pleaded guilty to that robbery charge. I take that into account and I sign a certificate to that effect. 2. The armed robbery is against s 97(1) of the Crimes Act 1900. Parliament regards it as serious. We can tell that because it fixes a maximum of 20 years imprisonment to that crime. The offence which I am asked to take into account of robbery is against s 94 of the Crimes Act. That carries a maximum of 14 years imprisonment. 3. The armed robbery happened on 6 September 2014. The victim was a taxi driver in Walgett. At about 8.30 that night Mr Hagan got into the taxi and asked him to go to the Namoi Mission. That is about 2.5 kilometres outside Walgett. A short way into the journey Mr Hagan told the taxi driver, "You better slow down". He repeated that and the driver began to slow down. Then what happened, according to the agreed facts in exhibit A, is that Mr Hagan took off his seatbelt and knelt up on the passenger seat facing the victim. He then produced a knife with a 6-7 inch blade, held it in the back of his right hand, with the blade running along the underside of his forearm. 4. The driver stopped the taxi. Mr Hagan kept saying to the driver, "I'm going to stab you, I'm going to stab you. Give me your money." The driver lifted his left arm and received a minor red mark on his wrist from the knife. Despite the driver saying, "There's no need for that mate", Mr Hagan said, "Give me the money, give me the money". 5. The driver gave him what was in his shirt pocket. Mr Hagan said, "All your money, all your money". He opened the console in the middle of the taxi and gave him that money as well. Mr Hagan said, "Give me your phone too". So the taxi driver handed over that. He had little choice. There was another man in the taxi at the time. Both men ran away. About $750 was taken from the taxi driver. Understandably the taxi driver "feared physical harm through the incident". When he was eventually arrested Mr Hagan made full admissions about this crime. 6. Two days after the armed robbery - on Monday 8 September 2014 - a man went to the Orange Credit Union ATM. He was at the ATM waiting for $140 to be dispensed when Mr Hagan "pushed the victim to his back shoulder", clearing the way for him to take the money from the ATM. The victim attempted to hold Mr Hagan but lost his grip. Mr Hagan ran away with the victim in pursuit. Mr Hagan got away and the victim contacted the police. They tracked Mr Hagan down and arrested him. Again he admitted what he had done. 7. As I said, Mr Hagan is only 24. He has a long criminal record which I also referred to. I should give some detail about that. He has been dealt with in the Children's Court, in the Local Court and in the District Court. He has convictions for affray, car theft and resisting arrest. He has convictions for malicious damage, larceny and break, enter and steal. They were all in the Children's Court and in the Local Court he has a conviction for assault. He has convictions for breaching an apprehended violence order and assault occasioning actual bodily harm. He was sent to prison for the last two offences by Local Court magistrates. In the District Court he has been dealt with for stealing from the person in 2011 and assault occasioning actual bodily harm. For both of those crimes he was sent to prison. 8. When he committed these offences Mr Hagan was on parole from one of the earlier offences. He had been on parole since 21 June 2014 and his parole period was due to expire on 20 December 2014. He was therefore halfway through his parole when he committed these offences. Being on parole, as with any form of conditional liberty, is an aggravating factor when a judge is sentencing a person. It means that the authorities have exercised some leniency in fixing a non-parole period and ordering that the offender be released back into the community on parole. One condition is that the offender be of good behaviour. If he has breached that condition and abused the trust which he has been given that will affect the sentence which will be imposed. He was dealt with for breaching his parole and was ordered to serve out the balance of his parole. That order had effect from 30 September 2014, which is the date that Mr Hagan was arrested, and it expired on 6 February 2015. 9. I am permitted to backdate the sentence. Normally the sentence I impose should commence on 7 February 2015 and there is an arguable case for that occurring here because Mr Hagan was heading for a breach in any event but I propose to backdate his sentence by one month. It will commence on 7 January 2015. 10. There is a pre-sentence report prepared by a Community Corrections officer dated 7 October 2015. It notes that Mr Hagan has received community service in the past but his attitude towards completing the order was "deemed to be poor". He has received good behaviour bonds and further community service orders. He has in the past failed to abide by his bail conditions and a warrant had to be issued for his arrest. He was given the benefit of parole in 2013 but his "response to supervision" was deemed to be "superficial" in that he did not attend required programs as directed to address factors that contributed to his "criminogenic behaviour". 11. Again in 2014 for another parole period, his "response to supervision was considered poor". He was tested in 2014, while on parole, for prohibited drugs and those tests disclosed that he had been using cannabis and methylamphetamine as well as other drugs. Breach proceedings were in progress when he was arrested for this offence. That is why it is arguable that the current sentence could commence when the balance of parole expired but I will give him the benefit of one month. 12. The report noted that Mr Hagan "grew up in a home marred by alcohol fuelled domestic violence". He does not remember his father but was told that his father had been "murdered in Sydney some time" after he left home. He came under the care of relatives, "boys' homes and the Department of Community Services". 13. Mr Hagan had a relationship for four years but it ended in 2012. There is a daughter who has a serious medical condition. Her name is Magenta. He has another daughter, Jade, now aged 8, from a previous relationship. 14. When he is eventually released Mr Hagan said he will live with his mother in the Bathurst area. He left school at the start of year 8. He had trouble with drug use and truanting. He has not held long-term employment and before he went into gaol was receiving a Centrelink benefits. He has had a drug problem for some years and he spoke of using heroin, methylamphetamine and Xanax. He went onto the methadone program whilst he was in custody but at one stage on remand had a positive urinalysis. He is on some medication in gaol but acknowledged to the Community Corrections officer that "he would not be involved in violent offending if he was not in the drugs". 15. Mr Hagan expressed his sorrow for being involved in the offence but explained that he was "grossly drug affected". The Community Corrections officer expressed some concern that Mr Hagan "now believes that on the methadone program he is rehabilitated". The officer assessed him as at a high risk of reoffending. The officer thought he was in need of psychological assessment and counselling. The officer thought he would benefit from a period of supervision in the community once released. 16. Mr C Dane, solicitor, who appeared for Mr Hagan, arranged for him to be psychologically assessed by the well-respected forensic psychologist Anne Robilliard. She prepared a report which became exhibit 1. She confirmed much of the history which had been taken by the Community Corrections officer. Mr Hagan started smoking cannabis as early as the age of 12 and graduated onto more serious drugs as he grew older. He expressed his regret to the psychologist as well. She assessed his intelligence range as being below average and his risk of reoffending as being high to moderate. 17. The psychologist noted Mr Hagan's exposure to physical abuse throughout his formative years. She observed that being the "victim of violence as a child generally shapes an implicit acceptance of violence as a normal problem solving strategy". Apparently Mr Hagan had said to her that he is now old enough to realise that violence is not okay. Noting his intelligence assessment the psychologist observed that individuals with "patterns of scores like this often act out aggressively when their level of frustration of being unable to adequately express themselves verbally, overwhelms behavioural control, although this was not particularly relevant". In this case Ms Robilliard thought that the "impact of negative and abusive treatment during formative years has shaped his current attitudes and behaviours". She concluded that Mr Hagan's "criminal behaviour is essentially a product of the coalescence of his addictive predisposition, negative experience of formative years and limited cognitive ability to reason an re-evaluate his attitudes and redirect his behaviour". His prognosis depends upon him obtaining professional assistance and Ms Robilliard recommended some programs which are available in custody. HIS HONOUR: I'll just suspend my remarks there. Mr Dane, I don't know whether you've had an opportunity to get instructions on this question. It is normally helpful to send the Corrective Services a copy of material such as a psychologist's report. Corrective Services make it clear that such independent reports can be very helpful in classification and contain a lot of information, diagnoses, et cetera, that are very helpful. I don't know what your instructions are. If you want an opportunity for us to clear the Court when I have finished sentencing your client you can get those instructions and I'll come back and deal with it. DANE: Thank you your Honour I very much appreciate that. 1. Mr Dane called his client's mother to give evidence. She said that whilst she was pregnant with Mr Hagan she was drinking a lot. She acknowledged that both she and Mr Hagan's father were alcoholics and that his father left when Mr Hagan was small. But a relationship with another partner was affected by domestic violence over many years when Mr Hagan was still present and he was exposed to it. 2. Cross-examined by Ms T Hennessy, who appeared for the Director of Public Prosecutions, she acknowledged that Mr Hagan had seen the domestic violence and himself had been the victim of it as well. He had spent some time with a great aunt. There was also another aunt he had spent time with but there was also domestic violence in that household as well. 3. Mr Dane called his client. Mr Hagan acknowledged that the information in the psychologist's report was all true and that an aunt of his in Walgett had been the subject of domestic violence, so that in both places - his mother's and his aunt's - he had been exposed to that. He was kicked out of school at the age of 13 and started drinking and smoking. He was 17 when he met his first partner and the daughter from that union is Jade who is now 8. He talked about Magenta and her treatment and pointed out to me last week and this morning that she has had to be treated again for a possible recurrence of her serious illness. His daughter normally lives with her mother in Canberra. 4. Mr Hagan acknowledged that when he was released on parole in 2014 he started using heroin and ice and did not last long at all without using those substances. He decided to rob the taxi driver as he was going home, and normally carried the knife with him. He expressed his remorse for the crime that he had committed and for both victims, the taxi driver and the man at the ATM, saying that he was on drugs and did not really know what he was doing. Time in custody had given him a long time to think about his life. 5. He was using drugs whilst in gaol at first but then he stopped. He realised he had to do something. It took a few weeks but he got some help and got himself on to the methadone program. He is eating better and putting on weight and is concerned as a father for his daughter. He wants to get himself straightened out when he is released from gaol and try to find a job. He is interested in Aboriginal art and has done some while in custody. 6. Cross-examined by Ms Hennessy, he acknowledged that the taxi driver he robbed was the only taxi driver in Walgett. Asked about getting back on to the drugs when he had been released on parole in June 2014 he said he had split up with his girlfriend and was not coping with the stress so returned to using drugs. He is hoping to stay on the methadone program and hopes to re-engage with his family and daughter and to get assistance from professional counselling including residential rehabilitation if necessary. He has become used to drugs and alcohol being part of his normal pattern of behaviour and realises that it is no longer acceptable. 7. I was considerably assisted by very detailed written submissions by Mr Dane, those submissions became MFI 2. He examined the objective features of his client's criminal behaviour. He argued that his client's early plea should attract a discount of 25% and Ms Hennessy acknowledged that. Mr Dane drew my attention to the guideline judgment delivered by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346 and acknowledged that his client was a young offender but that he is not an offender "with little or no criminal history". On the contrary, I add, he has a significant history. I agree that he had a serious weapon and that there was a limited degree of violence and the normal but completely unacceptable kind of violence in these kinds of cases. The victim was vulnerable. It could not be said that a small amount was taken because it, in my opinion, may have been a significant amount for a taxi driver on a shift. He pleaded guilty at an early opportunity. 8. I do not accept that, as Mr Dane argued, the overall result is that the offence is at the low end of objective seriousness so far as this kind of offence is concerned. In my opinion it lies squarely in the middle of that range. 9. Mr Dane looked at the aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999. I agree with him that the fact that the offence involved the actual threatened use of a weapon is not a separate aggravating feature. It is part of the crime of armed robbery and a factor which was taken into account no doubt by the legislature in providing for the maximum sentence. 10. His client does have significant previous convictions. I accept that they are not "serious personal violence offences", but they do include offences of stealing from the person and assault and larceny. These are factors which I can take into account when assessing where in a range I should fix the sentence, bearing in mind the fact that the offender has exhibited a disregard for the law over many years. I agree that the injury, emotional loss or harm to the victim was serious but no more serious than any armed robbery would be. It is very significant to be a victim of an armed robbery and very traumatic but there is no evidence enabling me to make a finding that it is any more than usual or that it should constitute a separate aggravating factor. 11. Mr Dane realistically acknowledges that his client was on conditional liberty and that is an aggravating factor. I cannot find that his client has good prospects of rehabilitation. I can hope, given his increase in age and the insight that he is receiving, that he will; but he has not to date. I accept his remorse. I do not accept the submission that he has provided assistance to the authorities in the sense provided for in s 21A(3)(m). Nor do I accept that he should get an Ellis discount. 12. Mr Dane took me to four significant factors which are personal to his client. He relied heavily on his client's background and referred me to the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, reminding me of what the plurality had said at [40] that the "experience of growing up in an environment of social deprivation may leave its mark on a person through their life and may compromise the person's capacity to mature and learn from experience". That does not diminish with age. I accept Mr Dane's submission that his client is "to some extent the product or victim of normalised dysfunction" and that he has "a compromised capacity" to learn from experience. 13. The second factor was his client's youth. His client of course is not a child but an adult; but he is an adult in his mid-twenties. Mr Dane referred me to the remarks of the late Hodgson JA in R v BP [2010] NSWCCA 159 at [4]. I give weight to those observations and to his client's relatively young years. 14. I take into account his client's drug addiction as the third factor drawn to my attention by Mr Dane and the remarks made by Simpson J (as her Honour then was) in Henry and by Wood J (as his Honour then was). 15. I do not agree that Mr Dane's client could be said to be at a "crossroads". Nevertheless, the impact of the use of drugs points to his state of mind or capacity to exercise judgment or planning - he had none at the time. It is not a mitigating factor as such but more like reducing the objective seriousness of his behaviour. 16. The fourth factor pointed out by Mr Dane was the risk of institutionalisation. I agree that there is a risk of that occurring. Normally when a judge imposes a sentence the non-parole period or time that the offender must spend in gaol is about 75% of that sentence. Mr Dane argued that there are special circumstances for reducing that. One of the circumstances was his client's risk of institutionalisation. He referred to his client's demonstrated potential for rehabilitation. I do not accept that. But I do accept that his client has a high need of rehabilitation and adjustment back into the community in order to avoid the risk of institutionalisation. They are special circumstances. 17. I have taken into account the arguments which Mr Dane put forward about the statistics made available by the Judicial Commission. Ms Hennessy pointed to the fact that Mr Hagan had held up the only taxi driver in Walgett who was in an extremely vulnerable position. I agree. She acknowledged that Mr Hagan's moral culpability was reduced by his disadvantaged background and by exposure to drugs and alcohol and violence as part of his upbringing. She acknowledged the impact of institutionalisation and argued against his prospects of rehabilitation being good. I accept that submission. She said that the Henry guideline applies. 18. I come now to consider, in light of those submissions, the appropriate sentence which should be imposed. As I said, I regard the offending as within the middle of the Henry guideline, but I need to take into account as well the fact that Mr Hagan was on conditional liberty. He had significant relevant prior convictions. And I need to take into account the robbery from the man at the ATM. 19. I originally had in mind a period of six years as an appropriate sentence. But because of Mr Dane's submissions about his client's personal circumstances I am going to reduce that sentence to five years imprisonment. 20. A sentence of five years imprisonment would normally bring with it a non-parole period of three years and nine months, that is 75% of five years. I am going to reduce the non-parole period of Mr Hagan's case to two years and nine months. HIS HONOUR: I will sentence you now Mr Hagan. 1. I sentence you to five years imprisonment to commence on 7 January 2015 and to expire on 5 January 2020. The non-parole period when you must stay in gaol is two years and nine months. That, too, commenced on 7 January 2015. It will expire on 5 October 2017. The first date on which you will be eligible for parole is therefore 5 October 2017. The Parole Authority will assess you for parole then. HIS HONOUR: Do you understand that? OFFENDER: How long will I be in gaol? HIS HONOUR: You come up for parole 5 October 2017. So that is about a year and 10 months from now. OFFENDER: Excuse me your Honour can I speak to my solicitor after this happens on the phone please because I don't understand what you are saying and he can explain it to me. HIS HONOUR: We will do that and we will make sure you do understand. OFFENDER: Thank you. HIS HONOUR: First I will ask whether there are any matters of fact or law that I should deal with. HENNESSY: Can I ask whether your Honour came to the conclusion as to five years after the discount of 25% as well? Your Honour did make reference to it earlier but it is not in the calculations. HIS HONOUR: You are quite right. Anything else? HENNESSY: No your Honour. 1. Mr Hagan must benefit from that. Mr Hagan I am going to explain things again and then, Mr Dane, I am going to give you the chance to explain things to him, because the prosecutor drew my attention to the fact that I had not allowed for the 25% discount because you pleaded guilty and she was right. My guess is that Mr Dane would have picked that up quickly too, but she did first. 2. So I regard an appropriate sentence as five years. I discount that by 25% so your sentence is three years and nine months. Normally, for a sentence of three years and nine months, the non-parole period would be two years and nine months, that is 75%. I am going to fix a non-parole period of two years so that the overall sentence will be three years and nine months, commencing 7 January 2015 and expiring on 5 October 2018. The non-parole period is two years commencing 7 January 2015 and expiring 6 January 2017. Your first date you will be eligible for parole is 6 January 2017. SHORT ADJOURNMENT HIS HONOUR: Mr Dane, the psychological report? DANE: I have spoken to Mr Hagan about that. He is willing and hoping I can send the report to the welfare officer at the gaol. I'm not sure if your Honour has a method through which that might be done. HIS HONOUR: We know how to do it; so we have the original, I have marked it in pencil, my Associate faxes it to a number. DANE: Thank you. 1. I will direct my Associate to send a copy of exhibit 1 to Corrective Services. HIS HONOUR: Anything else? DANE: No, Mr Hagan understands the breakdown. HIS HONOUR: Mr Hagan your gaol sentence is three years and nine months. Do you understand that? OFFENDER: Yeah. HIS HONOUR: I have backdated it to start on 7 January this year. Do you understand that? OFFENDER: Yeah. HIS HONOUR: So you are already serving it, do you understand, so it expires three years and nine months later so it finally expires on 5 October 2018. Do you understand that? OFFENDER: Yeah. HIS HONOUR: You know what a non-parole period is? OFFENDER: Yeah that's the time I have to do in gaol. HIS HONOUR: You're right. Exactly. That started on the same day, 7 January this year. That is only two years. It is less than it normally is because I am worried you might be getting too used to gaol and also you are a young man and you need to get yourself sorted out in the community. Do you understand that? OFFENDER: Yes your Honour. HIS HONOUR: So your parole is going to come up on 6 January 2017, that is two years after January this year, your parole date, 6 January 2017. Do you understand that? OFFENDER: Yeah. HIS HONOUR: Right, that's the important date. I don't order your parole but the Parole Authority sorts it out and that will probably depend on lots of things including how you behave yourself in gaol. Do you understand? OFFENDER: Yes your Honour. HIS HONOUR: You will be told when it's coming up and you will need to make your application for parole. But the date is 7 January 2017. All right? OFFENDER: Yeah. HIS HONOUR: You were going to go away with a longer sentence but it is shorter because I forgot to do the discount so you have done a bit better than I expected. OFFENDER: Thank you your Honour. HIS HONOUR: That's all right and I hope your little girl gets better. All right, do you understand? OFFENDER: Yes your Honour. HIS HONOUR: All right, now look keep up the good work. Are you still on the methadone or not? OFFENDER: Yeah. HIS HONOUR: All right well you try to do that and take whatever help they can offer you in gaol and then we have to get you out and hopefully sort it out in the community because you just have to stop what you are doing when you get on the drugs. OFFENDER: Yeah. I had a think about where my life is going down the track and I want to keep from going down that path. I want to change… (not transcribable)… HIS HONOUR: Good that's very good. OFFENDER: I don't want friends, I don't want drugs, I don't want that, I want my family, I want to be there for my family and yeah. HIS HONOUR: Good. All right well you will need a lot of help doing that, a lot of help because it's not easy but you need to accept the help that you are offered, let people help you. OFFENDER: Yeah. HIS HONOUR: All right good luck. OFFENDER: Thank you your Honour. Can I go now? HIS HONOUR: Yeah you can go now. OFFENDER: Yeah, thank you. ********** 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: 03 August 2016