R v Hopwood [2019] NSWDC 131

District Court New South Wales

Medium Neutral Citation: R v Hopwood [2019] NSWDC 131 Hearing dates: 15 March 2019 Decision date: 15 March 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Offender sentenced to a term of imprisonment of 4 years 6 months with a non parole period of 2 years 6 months. Catchwords: CRIMINAL LAW -robbery armed with an offensive weapon Legislation Cited: Crimes Act 1900 (NSW) s.97(1). Cases Cited: R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown)

Jarrad Paul Hopwood (Offender) Representation: Ms Namat (ODPP)

Mr El Choufani (Solicitor) File Number(s): 2018/00056486 Publication restriction: Non publication order of the names of the co-offenders who are juveniles.

Judgment 1. Jarrad Paul Hopwood, you appear for sentence today in relation to the offence of robbery armed with an offensive weapon. 2. This involves a contravention of s 97(1) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment. There is no standard non‑parole period but there is a guideline judgment of R v Henry in which the Court of Criminal Appeal has given guidance and assistance to judges of this Court in dealing with offenders like you. 3. The facts surrounding your offending are contained in an agreed statement of facts. Briefly recast by me as to style but not substance those facts may be summarised as follows. 4. In the early hours of the morning of 17 February 2018 you and 2 juveniles, AT and BC, went to a tobacconist shop in the Sydney suburb of Prospect. When each of you went through the door of that shop all of you were armed. AT was armed with a knife; BC was armed with a claw hammer; and you were armed with a large kitchen knife. 5. You also had with you latex gloves and pillowcases. What you were going to do was therefore planned. It was not a spur-of-the-moment thing; it is something you and these other two planned to do. 6. You each confronted the shopkeeper with those weapons. The agreed facts do not tell me how old that person was but, whatever his age, he would undoubtedly have been terrified, being on his own, at that hour of the morning, being confronted by three people holding weapons that were capable of serious injury or death. 7. The three of you stole a significant amount of cash and a large quantity of cigarettes. At least in your case, the reason you participated in this robbery was not to indulge a habit in tobacco, but to sell the cigarettes to support your habit of methylamphetamine. Indeed, you were as "high as a kite" on methylamphetamine at the time you committed this offence because you had been using it for a significant period before you and your co-offenders went to this shop. 8. When you left the shop, you and your co-offenders discarded not only the latex gloves but also the clothes you had been wearing. There is no suggestion that you went about thereafter naked, so the only rational inference in the circumstances is that you and your co-offenders, as part of your planned robbery, had placed some substitute clothing to get changed into. 9. The Court is required to make an assessment of the objective seriousness of your offending for an offence of its kind. In my opinion it is a mid-range offence. 10. It is aggravated (that is, it is made worse) because you were with others; and it is also aggravated because, three weeks before you did this, you were in front of another judicial officer and you were placed on a nine month good behaviour bond for the offence of stalk or intimidate with intent to cause fear. So, within three weeks of a Local Court magistrate putting you on a bond, you broke it. You have not been called up in relation to that bond and I have not been asked to do so. 11. You have had a very sad life, Mr Hopwood; and I have taken that dysfunctional upbringing into account in fixing your sentence (by reducing your moral culpability). 12. Your birth father, from what I had been told, was a most unsatisfactory person to be responsible for children. He was violent to your mother: both emotionally and physically. He left her, and you and your brothers, when you were only two. He has, apparently, drug and mental health issues which have resulted in him spending time in gaol. Your mother, her sister, and your late grandfather did their best to raise you and your brothers. 13. It is clear from the psychologist's report and the psychiatrist's report that you had a very problematic childhood: being bullied at school and yourself becoming a bully. 14. You have used drugs from a very early age: cannabis since you were 11; and ice since you were 15. 15. Although you have not been diagnosed (yet) as having schizophrenia, or any other diagnosable psychiatric condition, you do have significant psychological challenges. You have experienced psychotic symptoms, which is a terrifying experience for anyone – and which is more likely than not the consequence of the drug-taking. 16. And do not let anyone tell you, Mr Hopwood, that cannabis is not a dangerous drug. The consumption of cannabis by someone as young as 11, and into their teenage years, can do very serious damage to a person's mind. Your prospects of developing schizophrenia in future are not going to arise, in my view, as a result of the period of imprisonment that I am going to sentence you to. Your prospects of developing schizophrenia will be because of almost a decade's use of cannabis from when you were 11. People who say cannabis is not a dangerous drug have not the slightest idea of what they are talking about. They certainly have never sat in the Local Court any day of the week or sat in this Court and heard the stories that I and the magistrates hear. 17. Each of the experts who has examined you concludes that you have a high risk of reoffending. Ms North has suggested that, with an intensive treatment programme, your risk could be reasonably lowered. I have emphasised the word "intensive" here. She has noted that since you have been in custody - and you have been taking your medication as required - your mental condition has improved. So, whilst I accept the evidence of your mother that in custody there have been challenges for you, some aspects of custody can be beneficial to offenders. One is the point I have just made, that you are now required to take your medication. A second benefit is that you will have the opportunity of completing courses whilst in gaol so that when you come out you can get a job because you have never worked. You left school early because of the problems you had at school, but you have no skills and you will not get any unless, when in gaol, you put your head down and try to learn. Those courses are there. 18. You are now only 20 and you were 19 when you committed this offence. 19. You have a long history of offending whilst you were a juvenile. That cannot be held against you as an aggravating fact. 20. Because of your age and because of your dysfunctional background, considerations of general deterrence (that is fixing a sentence that will discourage others from doing what you did) is somewhat reduced - but still relevant. 21. Another factor I have to take into account is fixing a sentence that will discourage you from offending again. I have to fix a sentence which will protect the community; and I have to fix a sentence that will encourage your rehabilitation. 22. I have to assess your prospects of rehabilitation. (One thing I noted in that context is that you told Dr Martin that the offence had not been planned - that was not true.). The experts think that you do not have good prospects unless there is that intensive intervention. 23. You have not expressed remorse to me, that is, you have not told me that you are sorry for what you did. You have told your mother that you are sorry but you did not tell me directly from the witness box. But I am prepared to accept what you told your mother was true. I am prepared to accept that now that you have been in custody, that you are taking your medication, that you are off the ice, and that you have a clearer head. I accept that indirect expression of remorse. 24. I think your prospects of rehabilitation are guarded, Mr Hopwood. They would be enhanced by a longer period on parole. Because of your age, because this is your first offence as an adult, and because I think your prospects of rehabilitation would be enhanced by a longer period on parole, I am going to vary the ratio of the head sentence to the non-parole period and make a finding of special circumstances. 25. It has been submitted on your behalf that parity is a relevant consideration, that is, that I should take into account the sentence his Honour Judge Bennett SC imposed on one of your co-offenders. I have taken it into account. But I do not think parity is of much significance. BC was a juvenile when he was first sentenced in the Local Court and it is clear from Bennett DCJ's remarks on that appeal his Honour was not particularly happy with the fact that that young man was initially sentenced in the Local Court. His Honour was clearly of the view that it might have been more appropriate for him to be dealt with in this Court, as can be seen at p 12 of his Honour's remarks. So I do not think that the manner in which his Honour's hands were tied is of great significance to me but I have taken into account what his Honour has imposed. 26. You have been in custody since your arrest on 21 February 2018 continuously for this matter and the sentence I shall impose will be backdated to that date. 27. Jarrad Paul Hopwood, of the offence of robbery armed with an offensive weapon you are convicted. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of six years. Because of your early plea, and the discount of 25%, the term of imprisonment is four year and six months. I fix a non-parole period of two years and six months to date from 21 February 2018 and which will expire on 20 August 2020. I fix a balance of two years to date from 21 August 2020 and which will expire on 20 August 2022. 28. You will now go with the officers, 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: 17 April 2019