Citation: Director of Public Prosecutions (NSW) v Hammond [2017] NSWLC 9
Court: Local Court of NSW
Date: 28 April 2017
Judge: Deputy Chief Magistrate C O'Brien
Background
Three offenders were sentenced in the Downing Centre Local Court following a home invasion at a residential property in Gymea in the early hours of 8 May 2016. The two victims, a young couple, were in bed when all three offenders entered their bedroom uninvited. One offender struck the male victim and later retrieved a kitchen knife, holding it to his toes and threatening to cut them off. A second offender stole a bottle of champagne from the fridge. The third offender, who had known the male victim for several years, stood by in the doorway and said the situation was "out of his hands."
The agreed facts made clear that the two less-involved offenders did not participate in, and did not reasonably foresee, the use of the knife. This distinction in individual culpability became central to the sentencing exercise.
More serious charges had originally been laid but were withdrawn. Each offender pleaded guilty at the first available opportunity, entitling each to a 25 per cent discount on penalty. All matters were dealt with to finality in the Local Court, which imposed a two-year jurisdictional ceiling per offence, though objective seriousness was assessed against the higher statutory maxima of five and seven years.
Legal Issues
- How should objective seriousness be assessed where the Local Court's jurisdictional limit is lower than the legislature's prescribed maximum penalty?
- Whether drug addiction could operate as a mitigating factor in sentencing.
- Whether the offenders were suitable for, and whether it was appropriate to impose, an Intensive Correction Order (ICO) rather than full-time custody.
- Whether special circumstances existed to justify a variation to the standard non-parole period ratio.
- How to differentiate the objective criminality of co-offenders where one offender's conduct (armed intimidation with a knife) was not reasonably foreseeable by the others.
Decision
The court applied the principle from R v Doan (2000) 50 NSWLR 115 that objective seriousness must be assessed against the maximum penalty set by the legislature, not against the Local Court's jurisdictional ceiling. This meant the offending was evaluated on its true severity, even though the court could only impose up to two years per charge.
On drug addiction as mitigation, the court confirmed the established position that addiction is not ordinarily a mitigating factor. It may only operate as such in exceptional circumstances, consistent with R v Cahill [2015] NSWCCA 53 and related authorities. The court found no such exceptional circumstances on the facts before it.
The court was satisfied that imprisonment was inevitable for each offender. Each was referred for ICO assessment. For Hammond and Clough, the court ultimately found that an ICO was appropriate and sentenced them to serve their terms of imprisonment by way of that order. For Viliamu, whose conduct was objectively the most serious given his arming himself with a knife and his threatening and intimidatory behaviour, the court found an ICO was not appropriate. Viliamu was sentenced to full-time imprisonment with non-parole periods fixed accordingly.
On special circumstances (which, if established, allow a court to depart from the standard ratio between the non-parole period and the overall sentence), the court considered each offender's individual circumstances and made findings accordingly. Viliamu's appeal against sentence to the District Court was subsequently dismissed on 29 June 2017.
Orders Made
Hammond (convicted on each sequence):
- Seq 2 (intimidation): 14 months and 15 days imprisonment, commencing 28 April 2017, served by way of Intensive Correction Order.
- Seq 3 (remain in building with intent): 17 months and 15 days imprisonment, commencing 28 April 2017, served by way of Intensive Correction Order.
Clough (convicted on each sequence):
- Seq 2 and 3 (intimidation, two counts): 12 months imprisonment each, commencing 28 April 2017, served by way of Intensive Correction Order.
- Seq 4 (remain in building with intent): 15 months imprisonment, commencing 28 April 2017, served by way of Intensive Correction Order.
- Seq 5 (larceny): Fined $600.
Viliamu (convicted on each sequence):
- Seq 2 and 3 (intimidation, two counts): Non-parole period of 9 months, total term of 15 months, commencing 26 April 2017; eligible for parole 25 January 2018.
- Seq 4 (remain in building with intent): Non-parole period of 12 months, total term of 18 months, commencing 26 April 2017; eligible for parole 25 April 2018.
- Seq 5 (armed with intent): Non-parole period of 14 months, total term of 22 months, commencing 26 April 2017; eligible for parole 25 June 2018.
Key Takeaways
- Objective seriousness in Local Court matters is assessed against the statutory maximum penalty for the offence, not against the two-year jurisdictional ceiling, following R v Doan (2000) 50 NSWLR 115.
- Drug addiction is not a mitigating factor in sentencing except in genuinely exceptional circumstances; the court found no such circumstances here.
- An offender may be found suitable for an ICO following formal assessment, yet the court may still determine that an ICO is not appropriate having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, as occurred with Viliamu.
- Where co-offenders are sentenced together, a material difference in objective criminality, such as one offender arming himself with a weapon in circumstances not reasonably foreseeable by the others, can and should produce meaningfully different sentences.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 may be established where evidence demonstrates that prospects of rehabilitation would be assisted by a longer period on supervised parole, consistent with R v Lulham [2016] NSWCCA 287.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 114, 117
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5F, 67
Cases:
- R v Doan (2000) 50 NSWLR 115
- R v Borkowski [2009] NSWCCA 102
- R v Cahill [2015] NSWCCA 53
- R v Lulham [2016] NSWCCA 287
- R v Henry (1999) 46 NSWLR 346
- R v Pogson (2012) 82 NSWLR 60
- Daniels v R [2016] NSWCCA 35
- Hardie v R; Phillipsen v R [2012] NSWCCA 6
- Hayek v R [2016] NSWCCA 126
- Palijan v R [2010] NSWCCA 142
- Rios v R [2012] NSWCCA 8
- R v Todorovic [2008] NSWCCA 49