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District Court 11 October 2019

R v Hammond

[2019] NSWDC 844

Assault & violenceTheft & property
SENTENCING ARMED ROBBERY AND ROBBERY AGGREGATE SENTENCE. SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES MAXIMUM PENALTY

Citation: R v Hammond [2019] NSWDC 844
Court: District Court of New South Wales
Date: 11 October 2019
Judge: Haesler SC DCJ

Background

The offender was sentenced for two separate robbery offences committed in the Wollongong area in June 2017, just weeks after his release on parole. The first was a robbery at a Cash Converters store in Warrawong on 14 June 2017, where the offender threatened staff and took $970 from the cash register. The second, occurring two days earlier on 12 June 2017, was an armed robbery at a chemist in Flinders, where the offender wielded a knife, confronted a lone staff member, and took prescription medication and the chemist's personal watch.

The offender pleaded guilty to the robbery in the Local Court but denied the armed robbery. Following a short jury trial in August 2019, he was convicted of the armed robbery. He was sentenced for both offences together.

The offender had an extensive history of offending stretching back to childhood, with virtually no time spent in the community since the age of 20. He had previously been sentenced in 2014 by Judge Berman SC for a prior armed robbery, and was on parole from that sentence at the time of these offences. His background, including matters addressed under the principles in Bugmy and Fernando, was a significant feature of the sentencing exercise.

  • What sentences were appropriate for the robbery and armed robbery offences, having regard to objective seriousness, the R v Henry guideline judgment, and the offender's criminal history?
  • How should the plea of guilty be reflected for the robbery offence, and what weight should be given to the offender's trial admissions for the armed robbery?
  • When should the sentences commence, given the offender had been in custody since 14 June 2017 and was also serving the balance of a parole term?
  • How should the totality principle be applied to produce an aggregate sentence that was just, avoiding double-counting while still reflecting the breach of parole?
  • Whether special circumstances existed justifying a variation of the statutory ratio between the non-parole period and the head sentence?

Decision

Haesler SC DCJ found both offences were objectively serious. Robbery and armed robbery are not merely crimes against property but crimes against people, and their impact extends beyond the immediate victims to the broader community's sense of safety. The use of a knife in the chemist robbery, the targeting of a lone staff member on a public holiday, and the element of threatened violence in the Cash Converters robbery were all significant features.

The offender's commission of both offences while on parole was treated as an aggravating factor, requiring a harsher response to reflect the breach of a promise made to the State Parole Authority and the community. At the same time, the court applied the principles from Bugmy and Fernando, recognising the offender's profoundly disadvantaged background and tragic personal history. The offender was not to be punished for exercising his right to a trial, but the admissions made during the trial were noted as a mitigating factor in that proceeding.

On totality, the court declined to commence the sentence from the date of arrest. Instead, the sentence was backdated to one year after the offender went into custody, reflecting the time already spent serving the balance of his parole and avoiding any unfairness from the delay in listing the matter for sentence. The court found special circumstances existed, justifying a longer-than-standard parole period, given the offender's need for intensive in-custody programs and structured support on release.

The court expressed concern that community-based programs such as the Compulsory Drug Treatment Plan were not available to those from the Illawarra, making an intensive in-custody program the only realistic protective measure. The judgment emphasised that the sentences, while reflecting denunciation and general deterrence, also aimed to give the offender a meaningful opportunity to reintegrate into the community.

Orders Made

  • Sentence for the robbery offence (with 25% guilty plea discount): three years' imprisonment.
  • Sentence for the armed robbery offence: five years' imprisonment.
  • Aggregate sentence: six years' imprisonment, commencing 14 June 2018.
  • Non-parole period: three years (reflecting a finding of special circumstances).
  • Parole period: three years.
  • Eligible for consideration for release to parole: 13 June 2021.

Key Takeaways

  • The District Court applied the R v Henry guideline judgment as an important reference point for armed robbery sentences, while affirming that the guideline functions as a guide rather than a fixed rule, consistent with the Court of Criminal Appeal's observation in Legge v R that it is "a guideline not a tramline."

  • Committing robbery offences while on parole is a significant aggravating factor, as it involves a breach of the conditional promise made to the State Parole Authority and the community in exchange for early release.

  • A 25% utilitarian discount for a guilty plea applied to the robbery offence; no such discount applied to the armed robbery conviction after trial, though admissions made during the trial were taken into account as a general mitigating consideration.

  • Special circumstances justified extending the parole period beyond the standard statutory ratio, given the offender's lengthy institutionalisation, complex personal history, and need for structured programs and support before re-entering the community.

  • Where prior sentencing remarks from an earlier decision addressed an offender's background under Bugmy and Fernando, the court adopted and applied those findings rather than re-traversing the same ground, reflecting an efficient and consistent approach to longitudinal sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94 (robbery, maximum 14 years) and 97(1) (armed robbery, maximum 20 years)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149 (guideline judgment on armed robbery sentencing)
- Legge v R [2007] NSWCCA 244 (guideline as guide, not tramline)
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (disadvantaged background on sentence)
- R v Fernando (1992) 76 A Crim R 58 (sentencing principles for Indigenous offenders)
- Callaghan v R [2006] NSWCCA 58 (no absolute rule on commencement of sentence)
- Regina v MMK [2006] NSWCCA 272
- R v Holder (1983) 3 NSWLR 245
- R v Hammond [2014] NSWDC 175 (prior sentencing of the same offender by Judge Berman SC)