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District Court 25 July 2014

R v Hammond

[2014] NSWDC 175

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY ON PAROLE AT TIME OF OFFENDING

Citation: R v Hammond [2014] NSWDC 175
Court: District Court of New South Wales
Date: 25 July 2014
Judge(s): Berman SC DCJ

Background

The offender, a 42-year-old man with a significant criminal history stretching back to his youth, was being sentenced for armed robbery. He had been released on parole for a prior armed robbery just two days before committing the offence. At sentence, he confirmed that he had spent no birthdays outside of gaol since turning 20.

The offence occurred late on 18 November 2013. The offender approached a man walking home from work, initially asked for money, then produced a knife and demanded the victim's wallet. The victim threw the wallet to the ground and the offender took it and left. Police later identified and arrested the offender nearby, in part through CCTV footage that captured him discarding the victim's property.

The offender entered an early guilty plea. His background included a deeply disadvantaged childhood in Dubbo, marked by parental alcohol addiction, domestic violence from extended family members, and an absence of stable care following his grandmother's entry into a nursing home.

  • What was the appropriate head sentence and non-parole period for the armed robbery, having regard to the guideline judgment in R v Henry?
  • What weight should be given to the offender's deprived background under the principles in R v Fernando (as confirmed by the High Court in Bugmy v The Queen)?
  • How should the aggravating feature of offending while on parole be taken into account without double-counting?
  • Whether special circumstances justified a departure from the standard statutory ratio between the non-parole period and the head sentence?

Decision

His Honour identified the offence as closely aligned with the guideline scenario in R v Henry, while noting two material differences: the offender's early guilty plea (which the Henry guideline had treated as of limited utility), and his extensive criminal history (unlike the youthful, first-time offender scenario in the guideline). Despite these differences, Henry remained the appropriate touchstone for calibrating the sentence.

The court found the Fernando principles directly applicable. The offender's upbringing, characterised by parental neglect, exposure to alcohol-fuelled domestic violence, instability after his grandmother's removal, and early entrenchment in drug use, had materially limited his capacity to choose a law-abiding path. Applying Bugmy, Berman SC DCJ held that this disadvantage continued to constitute significant mitigation, notwithstanding the offender's age.

Being on parole at the time of the offence was treated as a serious aggravating feature. However, the court was careful to avoid double-counting by commencing the sentence from the date of arrest rather than a later date, so that the extended period of custody already served was not ignored while the parole aggravation was also factored in.

On the question of special circumstances, the court found that the offender's continuous custody since October 2007 (interrupted only by the two days on parole) meant it would be wrong to assess the non-parole period in isolation. That extended custodial history justified a significant variation from the standard statutory ratio in the offender's favour, with the aim of providing a meaningful period of supervised parole to assist reintegration. The court also noted that the offender's removal from the E classification (previously imposed following an escape conviction) improved the prospects of a graduated return to the community before eventual release.

Orders Made

  • Non-parole period of two years and six months, commencing 18 November 2013, with eligibility for parole on 17 May 2016.
  • Head sentence of six years imprisonment.

Key Takeaways

  • The District Court applied R v Henry as a sentencing guideline for armed robbery but adjusted the analysis to account for the offender's extensive criminal history and his early guilty plea.
  • Under R v Fernando and Bugmy v The Queen, childhood deprivation and exposure to violence can constitute ongoing mitigating factors in sentencing, regardless of the offender's age at the time of the offence.
  • Committing an offence while on parole is a serious aggravating circumstance; however, the sentencing court must structure the commencement date of the new sentence carefully to avoid double-counting that aggravation.
  • Special circumstances justifying a departure from the standard non-parole ratio can arise where an offender has served a long uninterrupted custodial term, because assessing any new sentence in isolation would distort the overall balance between custody and supervised parole.
  • An offender's classification status within the corrective services system, and its effect on access to pre-release programs, formed part of the court's reasoning about the conditions likely to support or hinder rehabilitation.

Legislation and Cases Referenced

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 ACrimR 149 (armed robbery guideline judgment)
- R v Fernando (1992) 76 ACrimR 58 (principles for sentencing Indigenous and disadvantaged offenders)
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (High Court reaffirmation of Fernando principles)

Legislation: No specific legislation was cited in the judgment text.