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District Court 30 April 2010

R v HAMSON

[2010] NSWDC 74

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ASSAULT WITH INTENT TO ROB

Citation: R v Hamson [2010] NSWDC 74
Court: District Court of New South Wales
Date: 30 April 2010
Judge(s): Berman SC DCJ

Background

The offender, a young woman with a history of drug use and sex work, was charged with assault with intent to rob following an incident on 10 March 2009. She and a co-offender targeted a woman who had just withdrawn cash from an ATM, with the offender grabbing the money from the victim's hand. A physical struggle ensued, during which the victim sustained scratches to her fingers, and the co-offender briefly blocked the victim's path before she fled and fell, sustaining further grazes.

The offender was interviewed by police, admitted her presence but denied the robbery attempt, and was subsequently charged. She spent 69 days in pre-sentence custody after being refused bail, before obtaining Supreme Court bail.

The matter was adjourned on multiple occasions to allow the offender to participate in a residential rehabilitation program (Biyani House) and, later, the Stepping Out community re-entry program. The sentencing hearing concluded on 30 April 2010.

  • What was the appropriate sentence for an offender convicted of assault with intent to rob, having regard to the seriousness of the offence and the offender's personal circumstances?
  • Whether a suspended sentence, rather than full-time custody, was justified given the offender's rehabilitation progress and the community interest in her ongoing rehabilitation.
  • What conditions should attach to any suspended sentence to address the offender's drug use, mental health, and reintegration into the community?

Decision

Berman SC DCJ characterised the offence as serious: an innocent person was assaulted and injured while withdrawing money from an ATM, and the offender acted in company. The court acknowledged that, assessed objectively, the offence would ordinarily attract a sentence of full-time custody, with the 69 days already served in custody falling well short of what the seriousness of the conduct might otherwise warrant.

However, the court was persuaded that the community's interest in the offender's rehabilitation weighed heavily in favour of a non-custodial disposition. Since the first appearance in September 2009, the offender had demonstrated meaningful, if imperfect, progress. She had engaged with residential rehabilitation, commenced TAFE studies, re-established family relationships, and been accepted into the Stepping Out program. The court noted one significant setback: the offender had used cannabis and amphetamines during the program, which would ordinarily have led to her exclusion. The program nonetheless granted her a trial continuation, an exception the court treated as evidence of genuine promise.

The court also took into account the offender's early guilty plea, which was treated as one of several factors justifying a departure from full-time custody, though the specific sentencing discount was not separately quantified. The resulting sentence was structured to maintain a custodial consequence in reserve: if the suspended sentence were breached, immediate imprisonment would follow.

Orders Made

  • The offender is sentenced to 18 months' imprisonment.
  • Execution of the sentence is suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • The suspension is subject to a good behaviour bond, with the following conditions:
  • Participation in the Stepping Out program and compliance with its reasonable directions regarding accommodation, drug use, mental health, and sexual assault counselling.
  • Continued attendance at TAFE and active pursuit of studies.
  • Active seeking of employment when appropriate.
  • Compliance with mental health treatment as directed by a medical practitioner.
  • Continued engagement with drug and alcohol counselling and treatment.
  • Submission to random and frequent urinalysis to confirm abstinence from illegal drugs.

Key Takeaways

  • The District Court confirmed that assault with intent to rob, particularly when committed in company and resulting in injury to the victim, ordinarily attracts full-time custody.
  • Where an offender demonstrates genuine rehabilitation progress between the charging date and sentence, a court may, in appropriate circumstances, suspend a custodial sentence rather than impose immediate imprisonment, particularly where the community interest in rehabilitation is identified as a countervailing consideration.
  • An early guilty plea was treated as a relevant mitigating factor, contributing to the decision to impose a non-custodial form of sentence, though it was not separately quantified in the discount.
  • The suspended sentence operated as a direct deterrent mechanism: the court made explicit that any future detection of drug use would result in the immediate activation of the custodial term, with no alternative residential rehabilitation being substituted.
  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a court may attach detailed rehabilitative conditions to a suspended sentence, including participation in specified programs, compliance with medical directions, and submission to urinalysis.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 11 and 12

Cases cited: None cited in the judgment.