Citation: R v El Hassan, George [2009] NSWDC 233
Court: District Court of New South Wales
Date: 20 August 2009
Judge(s): Nicholson SC DCJ
Background
The offender was convicted by jury of robbing a woman at an ATM in Redfern on 25 May 2008. Surveillance footage showed him loitering near the machines for approximately seven minutes before striking the victim on the head as the ATM dispensed her cash, causing her head to hit the glass panel of the machine. He then fled with $250 (a $20 note fell to the ground and was not taken). The victim was left distressed and temporarily disoriented.
The robbery conviction had consequences beyond the immediate sentence. Some six and a half months before the robbery, the offender had received a 15-month suspended sentence under s.12 of the Crimes (Sentencing Procedure) Act for maliciously wounding a neighbour. A fresh conviction for robbery triggered a call-up of that bond and exposed him to activation of the suspended term.
The sentencing court was therefore required to deal with two matters: the sentence for the robbery itself, and the breach of the existing good behaviour bond.
Legal Issues
- Whether the breach of the s.12 good behaviour bond (suspended sentence) had been proved, and whether that bond should be revoked
- The appropriate sentence for the robbery, including assessment of objective seriousness and the weight to be given to subjective factors
- Whether the offender's drug dependence provided a causal explanation for the robbery (a submission that, if accepted, could have moderated the sentence)
- Whether special circumstances existed justifying adjustment of the ratio between the non-parole period and the balance of the sentence
- Whether the offender was eligible for referral to the compulsory Drug Court program
Decision
The court was satisfied that the breach of the s.12 bond was proved and revoked it. The offender was sentenced to imprisonment with a non-parole period of 12 months and a balance of term of 3 months on the bond matter.
On the robbery, the court assessed the objective criminality as serious. The offender had deliberately waited near the ATMs for approximately seven minutes, targeting customers as they withdrew cash. The court found this was premeditated opportunism. One earlier bank customer had confronted him when he encroached on her personal space, suggesting she too had been identified as a potential victim before the robbery occurred.
The court rejected the submission that drug dependence caused or sufficiently explained the robbery. The offender was described as a poor historian, which created difficulties in accepting the expert reports at face value. Notwithstanding that rejection, the court acknowledged the offender's long history of drug dependence and its connection to his broader pattern of offending.
Special circumstances were found, producing a ratio between the non-parole period and the balance of term that departed from the standard one-third relationship. The overall sentence for the robbery was three years, structured as a non-parole period of 22 months commencing 2 July 2009 and a balance of term of 14 months. The robbery sentence was made cumulative on the 12-month non-parole period for the bond breach. The court also referred the offender to the Drug Court for consideration of inclusion in the compulsory Drug Treatment Program at Park Lea, noting that at least two, and probably three, of his recent imprisonable offences were connected to his drug use.
Orders Made
- The s.12 good behaviour bond was proved breached and revoked; the offender was sentenced to imprisonment with a non-parole period of 12 months and a balance of term of 3 months on the bond matter
- For the robbery: convicted and sentenced to imprisonment with a non-parole period of 22 months (commencing 2 July 2009, expiring 1 May 2011) and a balance of term of 14 months (expiring 1 July 2012), cumulative on the bond sentence; special circumstances found
- The offender was referred to the Drug Court for consideration of inclusion in the compulsory Drug Treatment Program at Park Lea
- Copies of reports by Dr Allnutt, Dr Furst, and Ms Ciepulcha were ordered to be attached to the warrant and made available to Corrective Services and the Drug Court
- In the event the offender was found unsuitable for the compulsory drug program, the custodial authority was recommended to give serious consideration to the recommendations in Ms Ciepulcha's report at paragraphs 47, 48, and 49
- A copy of the judgment was ordered to be published promptly for referral to the Drug Court and Corrective Services
Key Takeaways
- The District Court confirmed that a conviction for a fresh offence during a s.12 good behaviour bond (suspended sentence) triggers consideration of revocation and activation of the suspended term, which can significantly increase the overall sentencing exposure.
- Premeditated opportunism at an ATM, including deliberate loitering and targeting of bank customers, was treated as an aggravating feature in assessing the objective seriousness of the robbery.
- A causal link between drug dependence and the commission of an offence is not automatically accepted: the court rejected that submission here, in part because the offender was a poor historian whose account created difficulties in accepting expert reports.
- Special circumstances can be found to justify a longer-than-standard balance of term even in cases where the causation argument is rejected, particularly where rehabilitation prospects and a Drug Court referral are in play.
- Eligibility for referral to the compulsory Drug Court program requires, among other things, that the unexpired sentence exceed 18 months and that prior offending reflect a connection to drug use; both conditions were satisfied on the facts here.
Legislation and Cases Referenced
Legislation
- s.12, Crimes (Sentencing Procedure) Act (NSW) (good behaviour bonds and suspended sentences)
Cases
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Palu (134 A Crim R 174)
- R v Rause (unreported, NSWCCA, 8 August 1992)