Citation: R v Hasselberg [2023] NSWDC 601
Court: District Court of New South Wales
Date: 15 November 2023 (sentenced 3 November 2023)
Judge: Scotting DCJ
Background
The offender, a 20-year-old male with no prior criminal history, pleaded guilty in the Local Court to one count of robbery armed with an offensive weapon under section 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offence occurred in the early hours of 10 April 2022 at a service station in Stanmore, where the offender was the sole attendant on shift.
The offender approached the lone employee, handed him a handwritten note demanding $200, verbally claimed to have a knife, and lifted his clothing to reveal what appeared to be a knife handle in his waistband. The victim, fearing for his safety, opened the cash register and handed over $90. The offender left, apologising to the victim three times, but not before returning to retrieve the note he had written. He later admitted to police that he spent the $90 on Xanax.
Sentencing was deferred for 12 months under section 11 of the Crimes (Sentencing Procedure) Act 1999 when the matter was first listed in November 2022, to allow the offender to engage with residential rehabilitation. During the deferral period he completed a residential rehabilitation program, but also committed further minor offences including trespass, larceny, and shoplifting.
Legal Issues
- What sentence was appropriate for a young, first-time offender convicted of armed robbery, given significant mitigating factors including mental health conditions, substance use, and rehabilitative steps taken?
- What weight should be given to general deterrence, denunciation, and retribution against rehabilitation and reduced moral culpability?
- Was the offender suitable for an Intensive Correction Order (ICO) rather than full-time custody?
- What discount applied to sentence by reason of the early guilty plea?
Decision
Scotting DCJ found that the objective seriousness of the offence was low within the spectrum of armed robbery offences. The robbery was unsophisticated, opportunistic, and characteristic of what the court described as the offender's "amateur criminal status." The offender had made admissions in his ERISP interview, apologised directly to the victim, and expressed genuine remorse throughout proceedings.
The court gave significant weight to the offender's personal circumstances. He had been diagnosed with autism spectrum disorder and ADHD in childhood, had a history of anxiety and depression, and had been self-medicating with heroin and unprescribed Xanax in the period leading up to the offence. These factors reduced his moral culpability, and the court held that general deterrence, denunciation, and retribution could accordingly be afforded less weight. Rehabilitation was treated as a primary consideration.
The court acknowledged the non-linear nature of addiction recovery and noted that the offender had made genuine efforts, including completing the Triple Care Farm Rehabilitation Program. The subsequent minor offending during the deferral period was not ignored, but the court accepted that it did not represent a danger to community safety. A 25% discount was applied to the sentence for the early guilty plea pursuant to section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
The court determined that a sentence served by way of an ICO was appropriate. An ICO is a form of imprisonment served in the community and, in the court's assessment, would hold the offender accountable while supporting the long-term supervision needed to address his mental health and addiction issues.
Orders Made
- A two-year sentence of imprisonment, to be served by way of an Intensive Correction Order (ICO) commencing 3 November 2023 and expiring 2 November 2025
- The offender must report to the Leichhardt Community Corrections Office by 4pm on 10 November 2023
- Standard ICO conditions apply: no further offending; submission to supervision by a Community Corrections Officer
- Additional conditions:
- Abstain from all restricted or prohibited drugs except those prescribed by a medical practitioner
- Receive mental health treatment as directed by Community Corrections
- Receive drug rehabilitation treatment as directed by Community Corrections
- Complete 200 hours of community service work
- The offender was advised that non-compliance could result in revocation of the ICO and full-time custodial detention
Key Takeaways
- The District Court confirmed that sentencing for armed robbery requires assessment of objective seriousness across the full spectrum of such offences, and that an unsophisticated, single-victim, low-yield robbery by a first offender can sit at the lower end of that range.
- Where an offender's diagnosed mental health conditions and substance dependence causally contributed to offending, moral culpability may be reduced, allowing rehabilitation to take priority over general deterrence and denunciation.
- A 25% sentence discount applied as a matter of statutory entitlement under section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 for a guilty plea entered in the Local Court.
- Deferral of sentencing under section 11 of the Crimes (Sentencing Procedure) Act 1999 to allow engagement with rehabilitation is available even where subsequent minor offending occurs during the deferral period, provided the offender does not represent a significant threat to community safety.
- An ICO remains available as a sentencing option for serious offences such as armed robbery where the offender's youth, mental health vulnerabilities, and rehabilitative progress collectively justify a community-based sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 11, 21A, 25D(2)(a)
Cases
- Legge v The Queen [2007] NSWCCA 244
- Muldrock v R (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346
- R v Olbrich (1999) 199 CLR 270
- R v Zamagias [2002] NSWCA 17