(2013) 249 CLR 571
R v Fernando (1992) 76 ACrimR 58
R v Henry [1999] NSWCCA 111
(1999) 46 NSWLR 346
Source
Original judgment source is linked above.
Catchwords
(2013) 249 CLR 571
R v Fernando (1992) 76 ACrimR 58
R v Henry [1999] NSWCCA 111(1999) 46 NSWLR 346
Judgment (10 paragraphs)
[1]
Solicitors:
Grays Legal (for the offender)
File Number(s): 2017/00178071
[2]
Facts for sentence
On 14 June 2017, a man entered the Cash Converters store at Warrawong in southern Wollongong. The man was wearing a hooded jacket, "a hoodie". As he entered he covered his lower face with a jumper worn under the hoodie. He threatened staff saying they'd be shot. He jumped the counter. He took $970 from the cash drawer and fled. The events were captured on high quality CCTV from within the store.
When they came to investigate the matter police recognised the robber as Ian Hammond, who was known to them. He lived nearby, having only recently been released from gaol, on 18 May 2017.
Hammond was arrested on 14 June 2017, and charged with the robbery at the Cash Converters. That offence pursuant to s 94 of the Crimes Act 1900 carries a maximum penalty of 14 years' imprisonment. Hammond has been in custody since that date.
After further police investigation Hammond was also charged with the armed robbery of a chemist shop in Flinders, southern Wollongong, which occurred on 12 June 2017. The chemist on duty was alone in the shop when he was confronted by a man wearing a disguise and wielding a knife. The robber demanded drugs and money. The robber was eventually given some Antinex (Valium) tablets and the chemist's gold Citizen brand watch.
The robbery at the chemist was also captured on CCTV but the recording was of poor quality. It showed a man wearing a hoodie with his face covered by some black material. The robber had a knife and was carrying a backpack with some distinctive markings on it. The robber was agitated and it is clear from his evidence at trial and viewing the CCTV that the chemist, the victim of the robbery, was shaken by the incident.
When Hammond was arrested on 14 June 2017, he was wearing a gold Citizen brand watch, which the chemist later identified as his. At the home where he was staying with his partner, a backpack was found. It had very similar markings to that carried by the robber in the chemist robbery. That type of backpack was relatively rare having been produced for a promotion of a now out of service local bus company. Hammond was charged with armed robbery of the chemist. That offence, pursuant to s 97(1) of the Crimes Act 1900, carries a maximum penalty of twenty years imprisonment.
When he came before the Local Court Hammond accepted his guilt for the Warrawong Cash Converters robbery. However, he said he was not guilty of the Flinders chemist robbery. As is his right the matter went to trial. On 1st August 2019, after a short trial, a jury of 12 citizens found him guilty of that armed robbery offence. He now stands for sentence for both offences.
He will receive a reduction of 25% for the utilitarian value of his guilty plea when I indicate the sentence for the robbery. He can get no such reduction for the armed robbery matter, although he did, by the making of admissions, facilitate the prompt resolution of the trial. A matter I will take into account generally. He is not to be punished for exercising his right to trial no matter, with great respect to him, how objectively hopeless his defence was.
[3]
Maximum penalties
Here the maximum penalties provide one important guide to the exercise of my sentencing discretion. They also provide sentencing measures to be balanced with all other relevant factors. Here one very relevant measure is the guideline judgment of R v Henry (1999) 46 NSWLR 346, 106 A Crim R 149, a decision brought about because of the perceived leniency of judges of this Court in sentencing those who commit armed robberies. But as Spigelman CJ later said in Legge v R [2007] NSWCCA 244 at [59] "it is a guideline not a tramline."
[4]
Objective seriousness
Robbery, and armed robbery in particular, are not just crimes against property, they are crimes against people. Where citizens are confronted and robbed and confronted, threatened at knifepoint and robbed it can have a terrible impact on them. Such crimes, particularly when they occur at local stores open to the public or those which provide the even more valuable service of providing health products, particularly as this was on a long weekend, can have more serious consequences. We all use those services. If they close we all suffer.
The staff of such service providers learn to live in fear, extra security is often required, some services even close. Those who work in them can lose confidence in public institutions. They feel their communities are no longer safe. They feel police cannot protect them. The community learns to fear others and lose trust in others. Where people are fearful the entire community suffers. As a consequence we all lose our freedom to go out and use public facilities, participate in community activities and exercise our right to have access to those providing services to the community.
Where criminals are caught committing such offences the community can lose trust in the Courts if they do not punish such crimes and punish them severely.
It is important to note the objective seriousness of what occurred here. So far as the robbery is concerned a local business was targeted. I am prepared to find the offence was opportunistic, but that is little comfort to the staff that were threatened and put in fear. A small amount of cash was taken.
In relation to the armed robbery, a chemist providing a valuable service on a public holiday was robbed. A single staff member, alone in the store, was targeted. A knife was used. The victim was placed in fear. A small amount of property was taken; some of was his own personal property of some sentimental value, other property belonged to the store.
[5]
Other relevant factors on sentence
Hammond was released to parole on 18 May 2017. It is critical to any parole system that a person understands and appreciates that their release is conditional upon them being of good behaviour and on them making a promise to themselves, to their family, to the State Parole Authority and to the community that they will be of good behaviour.
On 25 July 2014 Judge Berman SC had imposed a six-year sentence on Hammond for an armed robbery offence. His Honour fixed a non-parole period of two years and six months: R v Hammond [2014] NSWDC 175. Judge Berman allowed for a significant period on parole in the hope that at long last Hammond could break a cycle of offending and gaol or juvenile detention, a cycle that had begun when he was a young child. His Honour noted and applied the matters set out in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, R v Fernando (1992) 76 ACrimR 58; and, R v Henry [1999] NSWCCA 111;(1999) 46 NSWLR 346; (1999) 106 ACrimR 149. Judge Berman introduced his judgment by noting, at [1], "Ian Hammond is 42 years of age. When he gave evidence before me yesterday I asked him how many birthdays he had spent out of gaol since he turned 20. He told me the answer was 'none'". Judge Berman then, relying heavily on a very comprehensive report from Ms Hare, Psychologist, which is now before me as exhibit 2, set out uncontroversial matters about the offender's background. His Honour structured the sentence to recognise the length of time Hammond had spent in custody concluding:
"Effectively he is serving a long period of custody, and so in considering the ratio between non-parole period and a head sentence it would be quite wrong for me to treat the sentence I am about to impose in isolation. That circumstance is enough of itself to justify a significant variation from the statutory ratio in Mr Hammond's favour".
I agree with and adopt those remarks.
[6]
Starting date
Mr Hammond's parole was breached on his arrest because of the commission of these offences. He is serving the balance of his parole for Judge Berman's sentence; that sentence will expire on 19 November 2019.
The commission of an offence while on parole requires a harsher punishment in order to recognise the breach of a promise made to secure early release. The promises were simple, be of good behaviour and obey Parole Service directions.
There is no single, absolute rule that dictates when these sentences must start: Callaghan v R [2006] NSWCCA 58. I have to consider proper application of the totality principle and try and avoid any unfairness. The offender should not be disadvantaged because of the time it took to list these matters for sentence. I must also avoid any double counting of matters in aggravation of sentence, particularly as I must take into account the commission of these offences while on parole as part of my synthesis of the appropriate penalty for each offence.
I note that the general practice applying the definition of parole review eligibility dates in the Crimes (Administration of Sentences) Act 1999 is that when a person is returned to custody they often have to wait up to a year before their parole is reviewed. In my view there must be some accumulation of these penalties on the balance of parole, and it should be significant to reflect, independently from the sentences I impose, the fact that he breached the trust that had been shown in him so soon after being released.
I made mention of the totality principle. There are a number of ways in which this principle can properly be applied. If I were to simply tot up both offences and add it to every offence committed by Mr Hammond he would be spending the rest of his life in custody. That result is not required unless it is absolutely critical; it is not critical yet, as it is in the community's interest that when Hammond is released he not reoffend.
In Regina v MMK [2006] NSWCCA 272 the Court cited the decision of R v Holder (1983) 3 NSWLR 245 where Street CJ said at [260]
"... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ..".
It would be very easy to reach very large figures in relation to Mr Hammond. Independent examination of his background and his subjective case requires a degree of leniency for both the individual sentences and the total sentence.
[7]
Subjective case
Mr Hammond comes from a large family; he is the youngest of nine. He grew up primarily in his grandmother's care in Dubbo. His mother, because of frequent intoxication and misuse of pills, was unable to care for her children. Hammond lived with a large, extended family in his grandmother's home. He told Ms Hare that he liked living there, but the circumstances were far from ideal; that is an understatement. The extended family was blighted by domestic violence and gross intoxication of alcohol. His grandmother was unable to protect Hammond from his uncle's violence. Occasionally he would be sent out to bring the police back to the home.
The background, which is detailed in two reports before me, from Mr Borenstein, exhibit 1 and from Ms Hare, exhibit 2, could only have had a lasting and detrimental effect on Hammond. As he grew up he learnt that violence was common place and he learnt that adults would standover others for money to buy alcohol. He lived for a period with his mother but she was unable to care for him; frequently intoxicated she would pass out leaving him uncared for.
He enjoyed school. He was talented at rugby league but the early uptake of drugs and alcohol, which commenced when he was far too young, led to a lifelong misuse of drugs, both in the community and in custody. He lost his place in the rugby team, his school attendance dropped off and eventually he was asked to leave. He has had some jobs in the past, but not many. He wants to work; he has plans I am sure. He told Judge Berman that he wanted to work in rural New South Wales; that would have been a good idea.
It appears from all the material that while life in custody is far from ideal that he is able to function there. It appears to be he is well and truly institutionalised.
Gaol is meant to punish someone appropriately and then enable them to be released so that they can, with help, adjust to normal community life. Hammond has never lived a normal community life. How then to synthesise all these relevant principles?
[8]
Synthesis
One disturbing element is the report of Mr Bornstein. While it notes the history similar to that provided by Ms Hare it also indicates a recent significant potential deterioration in Hammond's mental health. One can understand anxiety and depression from facing another lengthy time in custody, but there are indications in the report of a thought disorder and other matters which require immediate investigation. At least prima facie, there are indications more so than in the past that prison is going to be much, much harder for him. I will have Mr Borenstein's report attached to the warrant and will recommend on the warrant that he be immediately assessed by a Justice Health psychiatrist.
A background such as the one set out in the reports and the evidence before me leaves a mark on someone. It means that they are less morally culpable for their actions. It means that they should not be treated in the same way as other, more rational, actions. It requires moderation of the harshness that regard to maximum penalties and other guidelines often require of sentencing judges.
Hammond is well on a trajectory that will mean he will spend the rest of his life in custody. But if he is to return to gaol again after he is next released it will be because he has offended against the community one more time. Judges have a duty to the community to try and prevent further crimes. One way we do this is by removing someone from the community. But the ineffectiveness of that practice, apart from the immediate and relatively short term consequences of being locked up, are well demonstrated by this case.
At the conclusion of the Parole breach report was a phrase that Mr Hammond on release on the last occasion faced "critical transition issues". There is an apparently intractable problem here, Hammond needs to be released in a way that enables him to live a normal community life. He needs to respond properly to that treatment. I know his family is here to support him. If he is returned simply to his family, as these offences demonstrate, the chances of him reoffending are very, very high. His crimes were serious but they are not so serious that he must be locked up forever. He must be released and he should be released fit for, or at least in a situation where he may learn how to live, a normal community life. This may prove impossible, but the provision of resources to him to enable him to at least try must be made. Without comprehensive support on release he will offend again.
Once again I have to note that programs often provided to offenders, such as the Compulsory Drug Treatment Plan, are not available to those from the Illawarra. An intensive program in custody is the only way, in my view, that the community can be protected from further offences by Hammond.
I will take into account the submissions of both counsel. I will attempt, by this judgment, to be as lenient as the law allows, recognising that this is an exceptional case whereby the person for sentence has to be viewed as an individual with a very tragic background. But sentencing is not just about the offender. I must ensure that he is adequately punished, not just to deter him from committing future crimes but in an attempt to deter others who might offend as he did. As the judgment in Henry makes clear consistent and harsh sentences are required for crimes such as this in order to make it clear that custody will be an almost inevitable consequence of such seriously criminal behaviour.
Most importantly what Hammond did must be denounced. He must be held accountable for his actions and the harm done to his individual victims and the community must be recognised.
[9]
Orders
I propose to commence the sentence one year after he went into custody.
For the robbery offence, taking into account the plea of guilty, I indicate a sentence of three years.
For the armed robbery offence I indicate a sentence of five years.
There will be an aggregate sentence in this matter; that sentence will be six years' imprisonment. It will date from 14 June 2018. There will be a non-parole period of three years reflecting my finding of special circumstances. There will be a parole period of three years. He will be eligible for consideration for release to parole on 13 June 2021.
[10]
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Decision last updated: 09 March 2020