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District Court 10 February 2012

R v HAZELL

[2012] NSWDC 34

Assault & violenceDrugsTheft & property
CRIMINAL LAW JUDGMENT ARMED ROBBERY COMMON ASSAULT ICO ASSESSMENT ORDERED

Citation: R v Hazell [2012] NSWDC 34
Court: District Court of New South Wales
Date: 10 February 2012
Judge(s): Berman SC DCJ

Background

The offender, a young man born in July 1991, committed an armed robbery at a supermarket on 28 September 2010 while under the influence of drugs and alcohol. He entered the store carrying a hammer, threatened a cashier, and took money from the register. As he attempted to leave, he swung the hammer at a milkman who had entered the store, though the blow was blocked by a milk crate the milkman was carrying. He was found nearby shortly after and made admissions when interviewed.

The offender pleaded guilty at an early stage to armed robbery and common assault. He spent approximately four months in pre-sentence custody across two separate periods and also resided for a time at the Glen Rehabilitation Centre as a condition of bail, a period the court described as "quasi custody."

The sentencing proceedings were not straightforward. The offender experienced a relapse during his time at the rehabilitation centre, consuming alcohol and committing a further dishonesty offence. However, the centre accepted him back, and by the time of sentencing, updated reports described his progress in notably positive terms.

  • Whether the Court of Criminal Appeal's guideline judgment for armed robbery, which suggested four to five years full-time custody for a standard case, required the imposition of full-time imprisonment in this matter.
  • Whether the offender's demonstrated rehabilitation and the particular circumstances of the case justified a sentence of two years or less.
  • Whether a sentence served by way of an intensive corrections order (ICO) was appropriate in the circumstances.

Decision

Berman SC DCJ acknowledged the armed robbery guideline judgment but made clear it was precisely that: a guideline, not a mandatory outcome. His Honour noted that the guideline range was calibrated for a late plea, that it predated the availability of intensive corrections orders as a sentencing option, and that subsequent Court of Criminal Appeal decisions had confirmed sentences other than full-time custody remain available for armed robbery offences.

The court accepted the Crown's position that a period of imprisonment was required given the seriousness of the offending and the likely impact on the victims. However, taking into account the early guilty plea, the pre-sentence custody served (including time at the rehabilitation centre), and the offender's demonstrated rehabilitation, the court determined the appropriate total sentence would be no more than two years.

The central reasoning turned on the purpose of protecting the community. The court found that, in this particular case, community safety was best promoted by allowing the offender's rehabilitation to continue under supervision rather than by imposing further full-time incarceration. His Honour pointed to the offender's negative drug and alcohol tests, completion of the Glen Rehabilitation Program, attendance at Alcoholics Anonymous, TAFE enrolment, and steady employment as a furniture removalist.

Rather than imposing the sentence immediately, the court ordered an assessment of the offender's suitability for an intensive corrections order, adjourning the matter to 13 April 2012 for that report.

Orders Made

  • The matter was adjourned to 13 April 2012.
  • The offender was referred for assessment as to his suitability to serve his sentence by way of an intensive corrections order.

Key Takeaways

  • The District Court confirmed that the Court of Criminal Appeal's armed robbery guideline judgment, while significant, does not operate as a sentencing straitjacket and does not preclude non-custodial outcomes where circumstances warrant.
  • Rehabilitation can, in appropriate cases, be the sentencing consideration that best serves the community protection purpose, even for serious offences such as armed robbery.
  • The guideline range for armed robbery was formulated for a late plea and without reference to intensive corrections orders as a sentencing option, two factors that legitimately affect its application to later cases.
  • A significant body of post-guideline Court of Criminal Appeal authority has confirmed that sentences other than full-time custody remain available for armed robbery offences.
  • Pre-sentence custody, including time spent in a residential rehabilitation facility as a bail condition, formed part of the court's assessment in determining the appropriate length of the sentence.

Legislation and Cases Referenced

Legislation
- No specific legislation cited in the judgment text.

Cases
- The armed robbery guideline judgment of the Court of Criminal Appeal (not named specifically in the text, but referenced throughout as the primary sentencing benchmark considered).