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District Court 27 March 2019

R v Hammond

[2019] NSWDC 134

Theft & propertyPublic order & justice offences
CRIMINAL LAW

Citation: R v Hammond [2019] NSWDC 134
Court: District Court of New South Wales
Date: 27 March 2019
Judge: Colefax SC DCJ

Background

The offender, a 47-year-old man with an extensive criminal history spanning 32 pages, appeared for sentencing on two offences. Both arose from events in November 2017 and involved post offices in South-West Sydney.

The first offence was an attempted aggravated break, enter and commit a serious indictable offence (larceny) at the Milperra Post Office on 14 November 2017. The offender attended with a co-offender, carrying a bag, while the co-offender attempted the break-in with an implement. The attempt was unsuccessful. The following night, the pair succeeded at the Panania Post Office, using a screwdriver to force open a glass sliding door and stealing 52 mobile phones valued at just under $6,000. Only four phones were recovered by police.

At the time of both offences, the offender was on parole and also subject to a suspended sentence under a section 12 bond. A key feature of the sentencing proceedings was the late disclosure, in a psychologist's report prepared shortly before sentencing, that the offender had been physically and sexually abused while in juvenile detention at age 14.

  • What is the appropriate objective seriousness of each offence?
  • What weight should be given to the offender's lengthy criminal history and drug use as aggravating factors?
  • Whether previously undisclosed sexual abuse suffered at age 14 in juvenile detention should influence the length of the sentences imposed.
  • Whether special circumstances existed, within the meaning relevant to parole periods, justifying a departure from the standard non-parole period ratio.
  • What discount applied for early pleas of guilty?

Decision

His Honour assessed the attempted break and enter as sitting at or near the bottom of the range for its type. The completed break and enter was placed approximately midway between the bottom and middle of the range. Each offence was aggravated by three factors: the offender was on parole; he was subject to a suspended sentence; and his extensive criminal record itself constituted an aggravating circumstance.

The offender's late disclosure of sexual and physical abuse in juvenile detention was a significant feature of the sentencing remarks. His Honour observed that the onset of drug use at age 15, only 12 months after the abuse occurred, may not be coincidental. Drawing on his experience of cases in the District Court and the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, His Honour noted the potential causal connection between unaddressed childhood sexual abuse and long-term substance dependence. He expressed concern that no psychologist had previously explored this connection, and that without addressing that potential root cause, meaningful rehabilitation was unlikely.

Despite reservations grounded in the offender's age, prior custodial experience, and criminal history, His Honour made a finding of special circumstances. He described this as an unusual step, taken specifically because the possible underlying cause of the offender's drug use and offending had never been properly investigated or treated. A 25% discount was applied for early guilty pleas, and the sentences were made fully concurrent as a deliberate act of leniency.

Orders Made

  • First offence (attempted aggravated break and enter): fixed term of 15 months imprisonment, commencing 4 February 2018.
  • Second offence (aggravated break and enter): 3 years imprisonment, commencing 4 February 2018.
  • Non-parole period for the second offence: 18 months (reduced from the standard 27 months by reason of the special circumstances finding), commencing 4 February 2018.
  • Sentences made fully concurrent.
  • Section 12 bond listed for call-up before Acting Judge Delaney on 24 April 2019; a section 77 warrant to issue.

Key Takeaways

  • A finding of special circumstances can be made even where an offender's age, prior custodial history, and lengthy criminal record would ordinarily weigh against it, where an unexplored potential cause of offending remains unaddressed.
  • Previously undisclosed childhood sexual abuse suffered in state detention is a factor capable of influencing both the length of sentences and the structure of the non-parole period, particularly where it may connect causally to long-term substance dependence and offending.
  • The District Court drew expressly on the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse to support its observation that even conduct once regarded as minor sexual abuse can have catastrophic long-term effects on a child.
  • Absence of expert evidence examining a potential causal link between early trauma and subsequent drug use left the court unable to make a formal finding on that connection, but His Honour treated the unexplored possibility as sufficient to justify leniency in sentence structure.
  • Being on parole and subject to a suspended sentence simultaneously at the time of offending constitutes two separate statutory aggravating factors under the sentencing framework, in addition to the weight given to a lengthy criminal record.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit serious indictable offence; maximum: 20 years; standard non-parole period: 5 years)
- Crimes Act 1900 (NSW), s 344A (attempts; removes standard non-parole period)
- Crimes Act 1900 (NSW), s 12 (suspended sentences)

Cases: No cases were cited in the judgment.