SUPREME COURT OF NORFOLK ISLAND

The Queen v Hooper [2019] NFSC 1

ORDERS

THE COURT ORDERS THAT:

1.    The defendant be convicted of the offence of being an accessory after the fact contrary to s 340 of the Criminal Code 2007 (NI).

2.    The defendant be released, without security, pursuant to a bond under s 13 of the Sentencing Act 2007 (NI), subject to the following conditions:

(a)    appear before Court if called on to do so during the period of the order being 12 months;

(b)    to be of good behaviour for the period of 12 months; and

(c)    to be subject to supervision by New South Wales Community Corrections pursuant to the supervision plan recommended in the Sentencing Assessment Report dated 3 December 2018 or such other supervision plan as recommended by New South Wales Community Corrections, and to report to Queanbeyan Community Corrections Office to organise the commencement of that supervision.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    On 5 December 2018, the offender, Mr James Thomas Hooper, was arraigned and pleaded guilty to one count of committing the offence of being an accessory after the fact contrary to s 340 of the Criminal Code 2007 (NI).

2    The offence in the indictment was framed in the following terms:

[O]n or about the eleventh day of May 2013 at Cascade and elsewhere in Norfolk Island, JAMES THOMAS HOOPER, knowing that JARED LESLEY MALCOLM PAULING had committed an offence namely an offence of damaging property, assisted JARED LESLEY MALCOLM PAULING with the intention of allowing him to escape apprehension or prosecution

3    It can be seen that the essence of the offence committed by Mr Hooper is that he assisted the principal offender, Mr Jared Pauling, who had committed an offence of damaging property, with the intention of assisting Mr Pauling to escape apprehension or prosecution. I will say more about the facts of the offence shortly.

4    The maximum penalty for Mr Hooper’s offence is a fine of $50,000 or five years’ imprisonment or both. That is because the offence of damaging property contrary to s 259 of the Code carries a penalty of 1000 penalty units or 10 years’ imprisonment or both, and s 340(1)(d) of the Code provides that the penalty for being an accessory after the fact in respect of a principal offence which carries that penalty is 500 penalty units or five years’ imprisonment or both. Section 12A of the Interpretation Act 1979 (NI) provides that a penalty unit is $100.

5    The Court’s task is to now impose an appropriate sentence on Mr Hooper for the commission of the offence, having regard to all the relevant circumstances.

The offending conduct

6    There was no dispute about the facts, which were set out in an Agreed Statement of Facts tendered by the Crown by consent. Obviously enough, all of the relevant conduct occurred on Norfolk Island. The relevant facts were as follows.

7    On the evening of Friday, 10 May 2013, Mr Hooper and Mr Pauling drove around Norfolk Island. At various times they stopped for drinks and visited friends. Mr Hooper was the driver. Mr Hooper consumed a bottle of bourbon during the course of the evening.

8    At some point in the evening, Mr Pauling made a comment about the lighters at Cascade Pier being burnt. A lighter is a flat-bottomed boat used to transfer goods to and from moored ships. Mr Hooper took Mr Pauling’s comment to be a joke. In his words, he believed it to be a “smart arse comment”.

9    In the early hours of the morning on Saturday, 11 May 2013, Mr Hooper and Mr Pauling were still driving around in Mr Hooper’s vehicle. Mr Pauling told Mr Hooper to drive down New Cascade Road and to pull over near a fruit and vegetable stand. Mr Pauling got out of the car and pulled some banana leaves from a tree. Mr Hooper asked Mr Pauling what he intended to do with the leaves. Mr Pauling told Mr Hooper to drive to Cascade and that he would show him. Mr Pauling directed Mr Hooper to Cascade Pier. He told Mr Hooper to park near Lighter 01.

10    At the time, Lighter 01 was sitting on a trailer and had equipment in it, including nets and slings. Mr Pauling then got out of the car and collected a small petrol can from the back seat, together with the banana leaves. He then climbed onto Lighter 01, poured petrol on it, and then set it alight. The initial flame reached about two metres into the air. At all times, Mr Hooper remained in the vehicle watching Mr Pauling from the driver’s seat through the front windscreen.

11    Mr Pauling jumped from the lighter around the time that the fire started and returned to the car with the petrol can. Once Mr Pauling was back inside the vehicle, Mr Hooper drove away from the scene, dropped Mr Pauling off somewhere, and then drove home.

12    A resident at Red Road Drive observed the fire through binoculars just after 4.00 am. He drove to Cascade Pier and, upon seeing the fire, alerted police and the fire brigade. The lighter was well ablaze at that stage.

13    The lighter, its contents and the trailer, were the property of the Norfolk Island Administration. All were completely destroyed by the fire. The cost to replace the lighter was $98,118.63.

14    On 12 May 2013, the police spoke to both Mr Hooper and Mr Pauling about the matter. Both denied any knowledge of what happened. Mr Pauling, however, returned to New Zealand that day.

15    On 16 May 2013, the police searched Mr Hooper’s car. A number of items were seized, including “brown plant matter” – presumably banana leaves. Mr Hooper participated in a formal interview with the police that same day. He denied any involvement and indicated that he had not been to Cascade Pier at all during the relevant period.

16    Importantly, however, Mr Hooper participated in another formal interview with police on 17 February 2014. He attended that interview voluntarily, without a request from the police. During this second interview, Mr Hooper told the police that Mr Pauling lit the fire and that he drove Mr Pauling away from the scene.

17    Needless to say, the offence that was committed by Mr Pauling was a most serious offence. The Court is not, however, sentencing Mr Pauling. The Court is sentencing Mr Hooper for assisting Mr Pauling after the commission of his offence by driving him away from the scene with the intention of allowing him to escape apprehension or prosecution.

the Objective seriousness of the offence

18    The following observations may be made concerning the objective seriousness of the offence committed by Mr Hooper.

19    First, it is perhaps stating the obvious to say that Mr Hooper’s offence was being an accessory after the fact. He was not an accessory before the fact. There is no suggestion that he aided, abetted, counselled or procured Mr Pauling’s offence. Indeed, there is nothing to suggest that Mr Hooper even knew or apprehended that Mr Pauling intended to commit the offence.

20    Second, the level of assistance that Mr Hooper provided to Mr Pauling after the fact was relatively limited. All he did was to essentially drive Mr Pauling away from the scene and drop him off somewhere.

21    Third, Mr Hooper’s assistance was a somewhat spur of the moment act. It involved no real foresight or planning. Indeed, he told New South Wales Community Corrections (NSW Corrections), when interviewed for the purposes of the preparation of a Sentencing Assessment Report, that he panicked at the time that Mr Pauling lit the fire and that he feared that he might be blamed for it. Mr Hooper’s assistance was also of a fairly limited duration.

22    Fourth, and related to the third point, Mr Hooper’s assistance appears to have come about largely as a result of an instinctive or impulsive decision to help his friend, Mr Pauling. It  should also be noted in that context that Mr Hooper was under the influence of alcohol and an illicit substance at the time. Mr Hooper did not, it appears, assist Mr Pauling in the hope or expectation of obtaining any personal gain or reward.

23    Fifth, while Mr Hooper’s assistance no doubt enabled Mr Pauling to depart the scene of the crime swiftly and to therefore avoid initial detention, there are ultimately not many places to hide in the long term on Norfolk Island. Indeed, Mr Pauling and Mr Hooper were interviewed by the police on the day following the offence.

24    One further important point should be made concerning Mr Hooper’s offence. That point concerns the amount of time that has elapsed since the commission of the offence. As will have become apparent from the facts, the offence was committed in May 2013, over five and a half years ago. While Mr Hooper initially denied any involvement in the offence when questioned by police in May 2013, by February 2014 he had voluntarily attended and been interviewed by the police and made full admissions concerning his involvement. He was, however, not charged for a number of other months, it appears.

25    The delay that occurred before Mr Hooper was charged was, however, miniscule when compared with the delay that occurred after he was charged. Mr Hooper was committed for sentence to this Court, by consent, in respect of the more serious charge of aiding and abetting Mr Pauling’s offence on 12 September 2014 – almost four years ago. It appears that virtually nothing happened in the three and a half years between the committal and the filing of an indictment in this Court. No explanation has been given for that delay. It may have been the product of the significant changes that were made in relation to the administration of Norfolk Island in mid-2015, including the effective abolition of the Norfolk Island Legislative Assembly and the assignment of responsibility for prosecutions on Norfolk Island to the Commonwealth Director of Public Prosecutions. In any event, whatever may have been the cause of the delay, it is abundantly clear that none of the delay was caused by Mr Hooper. I will say something more about delay shortly. It is sufficient to say at this stage that in the particular circumstances of this case, I regard the extent of the delay between the time that Mr Hooper admitted his liability and the time that an indictment was finally filed in this Court to be a significant mitigating consideration.

mr hooper’s Subjective circumstances

26    Mr Hooper was 20 years of age at the time of the commission of the offence. He is now 26 years of age.

27    Mr Hooper was born in Tumut in southern New South Wales. He moved with his mother and brother to Norfolk Island when he was in year 3 at school. He lived on Norfolk Island until he left in about 2015.

28    One other point to note about Mr Hooper’s early years is that he has suffered from epilepsy as a result of his participation in a boxing match at school. As a result, he is unable to drive or obtain a driver’s licence.

29    Upon his return to mainland Australia in 2015, Mr Hooper spent some time living with his father in Wamboin, near Canberra. He, at some stage, appears to have moved to Canberra, but is now again residing with his father in Wamboin.

30    At the time of the commission of the offence, Mr Hooper had no relevant convictions. Unfortunately, however, since the time of the commission of the offence for which he is now to be sentenced, Mr Hooper has been before the courts on Norfolk Island and in the Australian Capital Territory and New South Wales on a number of occasions. It is unnecessary to detail those convictions. It is sufficient to say that they have all been fairly minor offences, including theft and burglary, obtaining property by deception and some minor driving offences. All of them have been dealt with in courts of summary jurisdiction.

31    One matter of some concern, however, is that, in September 2015, Mr Hooper was convicted of a dishonesty offence in the Australian Capital Territory. He was released on a bond subject to a condition that he be of good behaviour for 18 months and that he be subject to the supervision of the Australian Capital Territory Community Corrections (ACT Corrections). Unfortunately, Mr Hooper breached the terms of that bond by committing further offences, albeit fairly minor ones in December 2016 and June 2017. According to NSW Corrections, Mr Hooper’s supervision by ACT Corrections was also terminated early due to Mr Hooper’s “engagement with external interventions and his assessed risk rating during those periods”.

32    NSW Corrections has assessed Mr Hooper’s risk of re-offending as “medium”. That assessment was no doubt a product of Mr Hooper’s criminal history, his breach of bond, and the termination of his supervision by ACT Corrections. Perhaps another reason was what was said to be Mr Hooper’s “ongoing illicit substance use”.

33    In its Sentencing Assessment Report dated 3 December 2018, NSW Corrections said the following in relation to the supervision of Mr Hooper should his sentence include a bond subject to conditions involving supervision:

If the court makes a supervised order, Community Corrections will supervise Mr Hooper at the Tier 1/medium supervision level of the Service Delivery Standards. This means that he will be required to report to a Community Corrections Officer every two weeks. Home visits are not required at this level of supervision.

34    For various reasons that are unnecessary to go into, the author of the Assessment Report assessed Mr Hooper as unsuitable to undertake community service work.

Norfolk Island sentencing law

35    In sentencing Mr Hooper, I am required to have regard to the purposes for which sentences are imposed on an offender as set out in s 5(1) of the Sentencing Act 2007 (NI). They include, relevantly: to punish the offender to an extent or in a way that is just in all the circumstances; to provide conditions in the Court’s order that will help the offender to be rehabilitated; to discourage the offender or other persons from committing the same or a similar offence; to make it clear that the community, acting through the Court, does not approve of the sort of conduct in which the offender was involved; and to protect the Norfolk Island community from the offender.

36    I am also required to have regard to the relevant considerations identified in s 5(2) of the Sentencing Act. Those that are particularly relevant to the circumstances of Mr Hooper’s case are as follows.

37    First, it is necessary to have regard to the maximum penalty and any minimum penalty prescribed for the offence. As I indicated earlier, the maximum penalty for Mr Hooper’s offence is five years’ imprisonment or a $50,000 fine or both.

38    Second, it is necessary to consider the nature of the offence, how serious the offence was and the extent to which the offender is to blame for the offence. It is unnecessary to say anything further about those matters. I indicated the nature of the offence and its seriousness earlier in these remarks.

39    Third, it is necessary to have regard to the offender’s character, age and intellectual capacity. Again, I have already referred to Mr Hooper’s relevant subjective circumstances.

40    Fourth, regard should be given to how much assistance the offender gave to law enforcement agencies in the investigation of the offence, or other offences, and whether the offender pleaded guilty. As I indicated earlier, Mr Hooper initially denied involvement with the offence. To his credit, however, he later voluntarily presented himself to the police and made full admissions in relation to his involvement in the offence. He also implicated Mr Pauling. I am certainly satisfied that Mr Hooper’s conduct in that regard showed contrition and remorse in relation to his offending conduct.

41    Contrition and remorse on the part of Mr Hooper was also reflected in the fact that he subsequently pleaded guilty to an offence which was ultimately more serious to the offence that was ultimately proceeded with by the Crown. That plea was entered at what was effectively the earliest opportunity.

Mitigating circumstances – Delay

42    I have already adverted to another factor which I consider to be relevant to Mr Hooper’s sentence. That factor is delay. There has been a delay of five and a half years since the offence was committed, and over four years since Mr Hooper was committed for sentence. The most significant portion of the delay occurred between Mr Hooper’s committal for sentence in September 2014 and the presentation indictment on 1 May 2018.

43    The authorities indicate that delay in itself is not always a mitigating factor: see R v Melrose [2016] QCA 202 and Scook v R (2008) 185 A Crim R 164. In Mr Hooper’s case, however, the Crown, in the right of the Commonwealth Director of Public Prosecutions, has conceded that the delay occasioned here was not caused by Mr Hooper, was more than could reasonably be expected in the circumstances and that the uncertain suspense occasioned by the delay and suffered by Mr Hooper may be taken into account in passing sentence.

44    It may also be readily inferred that during the period of the delay, Mr Hooper has endeavoured to get on with his life, perhaps in the reasonable belief or expectation that the prosecution may ultimately not proceed. While it could not be said that Mr Hooper took any significant steps to rehabilitate himself during the period between his committal and the presentation of the indictment, I nevertheless consider that the delay involved in his case should, in all the circumstances, be considered to be a significant mitigating circumstance.

submissions regarding Sentencing and the appropriate sentence

45    In very helpful written submissions provided by Mr Ferguson, who appeared for the Commonwealth Director of Public Prosecutions, it was submitted that, in all the circumstances, a term of imprisonment may be open, but that a custodial sentence would not be required to ensure an appropriate penalty be imposed. I agree.

46    Having regard to all of the objective circumstances relating to the offence and the offending conduct, all of Mr Hooper’s subjective circumstances to which I have referred, and all of the considerations identified in s 5 of the Sentencing Act to which I have also already referred, I consider that the appropriate order to make in Mr Hooper’s case is to record a conviction, but to release Mr Hooper on a bond without security pursuant to s 13 of the Sentencing Act. The bond should be for a period of 12 months and be subject to a number of conditions.

47    The first condition is that Mr Hooper be required to appear before the Court if called on to do so during the period of the order.

48    The second condition is that Mr Hooper be of good behaviour for the period of 12 months.

49    The third condition is that Mr Hooper be subject to supervision by NSW Corrections pursuant to the supervision plan recommended in the Sentencing Assessment Report, or such other supervision plan determined as appropriate by NSW Corrections, and that he report to the Queanbeyan Community Corrections Office within 14 days of the order for the purpose of that supervision to commence.

conclusion and orders

50    The orders of the Court are as follows.

51    The defendant be convicted of the offence of being an accessory after the fact contrary to s 340 of the Code.

52    The defendant be released, without security, pursuant to a bond under s 13 of the Sentencing Act, subject to the following conditions:

(a)    appear before Court if called on to do so during the period of the order being 12 months;

(b)    to be of good behaviour for the period of 12 months; and

(c)    to be subject to supervision by New South Wales Community Corrections pursuant to the supervision plan recommended in the Sentencing Assessment Report dated 3 December 2018 or such other supervision plan as recommended by New South Wales Community Corrections, and to report to Queanbeyan Community Corrections Office to organise the commencement of that supervision.

Associate:

Dated:    18 March 2019