R v Hobson [2016] NSWDC 177

District Court New South Wales

Medium Neutral Citation: R v Hobson [2016] NSWDC 177 Hearing dates: 11 March 2016 Date of orders: 11 March 2016 Decision date: 11 March 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 6 years and a head sentence of 8½ years. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Aggravated break enter and steal whilst armed with an offensive weapon – Common assault – Deprivation of liberty - Very serious offending Category: Sentence Parties: The Crown Frederick Gilbert HOBSON Representation: Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender File Number(s): 2015/160656

SENTENCE 1. HIS HONOUR: Virtually no-one in the community could be unaware of the link between methylamphetamine use and crime, particularly violent crime, so those who voluntarily take methylamphetamine can scarcely complain when they receive little or no reduction in sentence because their violent offences were committed under the influence of that drug. 2. We have an example of such a crime here today. Whilst under the influence of ice the offender, Frederick Gilbert Hobson, committed an offence of considerable seriousness. It has had enormous impact upon the victim of that offence. 3. It is a fundamental rule in sentencing that a sentence imposed by an offender must bear a relationship to the objective gravity of that offence. For that reason Mr Hobson must go to gaol for a considerable period of time. 4. The offender was a regular user of ice. He needed money to get more of that drug. When he ran out of money and could not afford to buy the drug anymore he had a choice, he could have recognised the fact that he could not afford it and just not used it anymore, or he could have, and this is what he did, plan to commit a criminal offence which involved no consideration as to the victim of that offence but was concerned only with his desire to obtain money so that he could get more drugs. 5. Some of his associates had told him about some premises where there was believed to be a safe inside, and so the offender armed himself with a metal baton and some gloves and went to those premises. Living there was a 65 year old woman who raised three foster children. She lived by herself, apart from her children, having divorced from her husband some time before. 6. It is important to understand what I am about to describe shows that the offender was not one of those who committed the offence of break, enter and steal who wished to get in and out of the premises undetected, it was entirely necessary for him to carry out his plan that Ms Hanson was home because he needed her to open the safe he believed to be installed in the premises. And so this is what happened. 7. After Ms Hanson's foster children had gone to school, she was left alone. At about 8.30am the offender knocked on her door. She answered it. The offender said that his car had broken down and asked to use her phone. Very sensibly Ms Hanson said that he could not. She told Mr Hobson that she had children inside. This was not true, but Mr Hobson was not to know that. It is important to bear that circumstance in mind when I describe what later happened, and that is that Mr Hobson was at least aware of the risk that Ms Hanson was telling the truth and that there were children present when he did what he did. 8. Having been told that he could not use her phone, the offender said, "Can I have your mobile then? I have a pregnant wife in the car." Again, very sensibly, Ms Hanson said "No", shut the wooden front door and locked the deadbolt. The offender was not to be deterred. He walked around from the front door to the rear of the house and climbed on to a second storey balcony. He had the baton, about 45 centimetres long, in his hand. He used the baton to hit a glass sliding door in an attempt to smash it open. Ms Hanson was only metres away from that glass door, sitting at a computer desk. She saw and heard what the offender was trying to do. She quite understandably was panicked and terrified. 9. The offender was unable to smash that glass door but still he was undeterred. He moved to a second glass door and found that was closed but unlocked. Ms Hanson realised that the door was unlocked and so she fled to the front door to escape. The offender by now had opened that unlocked door and followed her. She made it to her front door and opened it partially, but before she could get through it the offender ran up behind her and shouldered the door closed. He prevented Ms Hanson from leaving. She struggled, but could not get the door open. 10. She said to him, "Just let me go, don't hurt me," and the offender said "No". Completely unprovoked he then swung the baton towards Ms Hanson's head. She lifted her left arm up in a defensive manner so that the baton did not strike her head, as Mr Hobson obviously intended, but struck her left arm instead. She felt immediate pain. He then began to scream at her. He said, "Open the fucking safe, I don't want to hurt you." 11. Ms Hanson was able to run to the master bedroom where she opened the window and screamed, "Help, I'm being robbed". The offender followed her and closed the window. He said, "Just open the safe. Where is the key? You rich people don't use banks, you put all the money in the safe." Ms Hanson said, "My husband has the key, he is at work." At this stage the offender saw a set of keys inside the lock of the door to the master bedroom. He pulled them out of the lock and made Ms Hanson explain what each key was for. None were for her safe. 12. This seems to have made the offender even angrier. He hit Ms Hanson to her chest with the end of the baton two to three times, causing her to step backwards. He said, "I want the key, I want the key." Ms Hanson tried to placate him. She said, "I'll give you all of the money that is in my purse." She then got her handbag that was sitting on the bed. She had about $150 in notes and some change. She gave the notes to the offender and said, "That's all I've got, my husband left me for shopping." 13. Once more the offender was not to be deterred. He said, "I want more, get me more." He then picked up her handbag and tipped it upside down, emptying the contents onto the bed. An iPad fell out and the offender took it. Ms Hanson said, "Please leave me the iPad, I'm not a rich woman." Mr Hobson threw the iPad back onto the bed and said, "Where is all your jewellery?" Ms Hanson took two gold chains from around her neck and gave them to the offender. He left those chains on the bed and instead took some other jewellery, a gold chain that was sitting on a chest of drawers, and took also a gold watch and a rose coloured beaded bracelet, putting those into his pocket. 14. That still was not enough though. The offender said, "I don't want to hurt you, just give me the fucking key," and again Ms Hanson told him that her husband gives her nothing, "He is at work with the key". At this stage the offender seems to have finally given up. He walked to the front door and found it was locked. He told Ms Hanson, "Open the door" and Ms Hanson complied, saying "Okay, just leave". 15. However for reasons that are not entirely clear the offender was not finished. He made a nasty threat to Ms Hanson. He told her that if she called the police he would come back and shoot her. He then took hold of the collar of her jacket and pulled her through the hallway. He picked up the house phone and pulled out the cord from the back of the phone and the wall socket. He picked up a brown jewellery box containing a silver locket, a silver peacock brooch, a green jewelled heart brooch and small trinkets. He pulled Ms Hanson over to the glass sliding doors on the ground floor. She opened the doors for the offender, and he said, "Stand by the door so I can see you because I will come back and hurt you." Finally he went outside, picking up a large square bag that he had been carrying earlier and ran away. 16. Ms Hanson eventually ran to her neighbour's house and police were alerted. Police attended the scene and they conducted patrols. They found the offender walking in the nearby vicinity carrying the black bag. He was stopped and arrested. A search of the bag revealed Ms Hanson's property, the baton, two pairs of gloves, a Stanley knife and some items of clothing. 17. When first taken back to the police station he was not in a fit state to be interviewed, but when he was interviewed he made admissions to having committed the offence. He explained that he had been told that Ms Hanson does not believe in banks, he said "that's what I heard and that she has a safe". 18. To say that this offence is serious is an understatement. To say that its effects upon Ms Hanson were serious is also an understatement. She gave sworn evidence today as to the effect of that sustained period of terror upon her. Not surprisingly she explained that as the offence was taking place she did feel terrified and in the aftermath she has suffered significantly. Firstly, there were the physical consequences of the assaults upon her. She said she was bruised and found it difficult to get around, but of course more important perhaps than the physical consequences are the psychological consequences. Ms Hanson said that she was emotionally distraught and all she wanted to do was sleep. Previously Ms Hanson said who she did a lot of community work and she was the sort of person that people went to when they wanted to get things done in the community, but since the offence her ability to do such work has suffered enormously, to the extent that she no longer does it, explaining that she cannot stand confrontation and does not want to be put in the spotlight. She has no confidence and everywhere she goes she takes someone with her. In circumstances where she lives alone this lack of confidence impacts upon her considerably. 19. Perhaps the most distressing consequence for Ms Hanson concerns the circumstance that she is no longer a foster parent. She had been a foster parent for ten and a half years, but the agency decided that after this offence she was not well enough either physically or mentally to keep the children. She feels keenly the consequences of the offender's awful crime. She now has alarms installed throughout the house and cameras around the house. The consequences for Ms Hanson have gone far beyond what would ordinarily be expected from an offence of break, enter and steal whilst armed with an offensive weapon, but those consequences are entirely foreseeable given the nature of the offender's violent crime. 20. When sentencing the offender for the offence to which he pleaded guilty in the Local Court, aggravated break, enter and steal whilst armed with an offensive instrument, I am asked to take into account a common assault on the Form 1. That common assault relates to aspects of the offender's behaviour whilst in the home. A debate arose in the course of submissions as to whether I could take into account that the offender's conduct within the house went beyond that which would establish a mere common assault. I believe that I can, being careful of course not to double count by increasing the sentence that I would otherwise impose because of the presence of the Form 1 and also by taking into account those aspects of the offender's conduct which amount to common assault when considering the objective gravity of the substantive offence. 21. Ultimately, however, it probably does not make a lot of difference given the number of aggravating circumstances which I am undoubtedly entitled to take into account when assessing the objective gravity of the offender's conduct. Although the Crown has chosen to charge the circumstance of aggravation being that the offender was armed with an offensive weapon, the Crown could have selected other circumstances of statutory aggravation; for example, the offender well knew that there was a person inside when he broke into Ms Hanson's premises, indeed, as I have explained, it was part of his plan that she be there. Also Ms Hanson's liberty was deprived by the offender's conduct. She wanted to get outside through the front door to escape, but he shouldered the door closed and prevented her from doing so. 22. It is fortunate that Ms Hanson's property was recovered, but it is instructive to consider what the offender took. There is no evidence as to whether the jewellery was expensive or not, but the thing about jewellery is that it often has a sentimental value which far exceeds its monetary value. People like the offender, who think nothing of the legitimate rights of the victims of their offences, do not really care that they may be taking something which they would be able to sell for only a few dollars but which is of enormous sentimental value to the person deprived of it. 23. I should mention that the maximum penalty for this offence is 20 years' imprisonment. There is also a standard non parole period of five years. I have taken both the maximum penalty and the standard non parole period into account in assessing the appropriate penalty. My reasons for not imposing the standard non parole period appear in these remarks on sentence. They primarily relate to the objective gravity of the offender's conduct which I assess as being well above the middle of the range of objective seriousness. I take into account, of course, that the offender pleaded guilty at the earliest opportunity to this offence and so he is entitled to a discount of 25% from the sentence I would otherwise have imposed, to reflect the utilitarian value of his plea. 24. Somewhat remarkably the offender's criminal history consists of a single offence of obtaining property by deception for which he was fined $500, that offence being committed in 2014. It is remarkable that the offender's serious criminal offending would commence with an offence of such seriousness as the one I have described. 25. Mr Hobson is a Maori, he was born in New Zealand and in his early childhood he lived something of an idyllic lifestyle, living with extended family in a traditional Maori community on the north island of New Zealand. There was no history of domestic violence, substance abuse or neglect in the offender's early childhood. However when he was aged about 12 the family moved to Auckland apparently because of his father's illness. He suffered from diabetes and indeed had both legs amputated when the offender was aged 16 and tragically died when he was a couple of years older. The death of Mr Hobson's father seems to have precipitated his use of substances as well as an affiliation with gang culture. 26. The offender moved to Australia with his partner in 2011 when he was aged 22, living with his mother and brothers in Revesby from 2014. Although his brothers have been substance users, they have managed to avoid criminal convictions and indeed have maintained full employment. He has a close relationship to his mother, but clearly did not take her advice when she advised him to go into rehabilitation in 2015, advice he laments that he did not accept. 27. As is obvious these offences relate to the offender's use of drugs. He started using cannabis and alcohol at about 18 following his father's death, but matters escalated in 2015 when he commenced smoking methylamphetamine and he quickly developed a daily habit. He stopped working, rarely slept or ate and lost a significant amount of weight. He was aggressive and committed offences to support his habit. 28. Since going into custody, bail refused, he has improved physically and there are no misconduct charges on his custodial history. He was granted bail at one stage but breached that bail and so has had a couple of periods of pre sentence custody, such that the sentence I will announce shortly will commence on 27 September 2015. 29. The offender told a psychologist that he did not consider the moral implications of his behaviour at the time he committed the offence, being strictly focussed on obtaining money to purchase methylamphetamine. How many times has a sentencing judge heard such expressions. Drugs are terrible things, they do cause people like Mr Hobson to commit terrible crimes, however, as I began these remarks on sentence, not too much can be made of that because it was Mr Hobson's voluntary consumption of the drug ice, a decision made in full understanding of what ice does to people which has seen him before the courts for sentence today. He told the psychologist "It's the ice, it's ruined everything". He is probably accurate in that. 30. Of course the prospects of the offender's rehabilitation are linked to the likelihood that he will give up drugs once released from custody. As I mentioned it is remarkable that the offender has no prior convictions before 2014 and that was only for a very minor matter, although that has to be balanced by the circumstance that the offender did say to the psychologist that he had committed crimes in order to obtain drugs. However the fact that the offender's criminal history is as limited as it is does tend to suggest that if the offender can give up drugs, there is a very good chance that he will not commit further offences in the future. 31. A sentence imposed upon someone has to reflect both offence and the offender. The offender's misconduct was very serious indeed. As I have mentioned more than once he planned to threaten Ms Hanson, he planned to terrify her, he struck her when she was cooperating with him and the consequences for Ms Hanson have been enormous. That is enough to explain the sentence I will now announce. 32. The offender is sentenced to imprisonment. I set a non parole period of six years to date from 27 September 2015, and a head sentence of eight and a half years. The offender will be eligible to be released to parole on 26 September 2021. As is obvious I have made a finding of special circumstances in the offender's favour. They relate to the need to assist him to give up his drug use, which will assist him to avoid committing offences in the future. Both he and the community will benefit thus from an extended period of supervision on parole.