District Court New South Wales Medium Neutral Citation: R v HAZELL [2012] NSWDC 34 Hearing dates: 10 February 2012 Decision date: 10 February 2012 Before: Berman SC DCJ Decision: The offender is referred to assess his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Judgment - Armed robbery - Common assault - ICO assessment ordered Category: Sentence Parties: The Crown Thomas Hazell Representation: Ms L Jardim - the offender The Director of Public Prosecutions File Number(s): 2010/322396 Judgment 1HIS HONOUR: One of the first guideline judgments issued by the Court of Criminal Appeal concerned the offence of armed robbery. That guideline judgment came in response to community and appellant court concern about the level of sentences being imposed for what was a prevalent, serious and frightening offence. 2The court heard lengthy argument, and promulgated a guideline judgment ultimately suggesting that for a standard set of circumstances, which the court outlined, a sentence of four to five years full-time custody should ordinarily result. 3I have a couple of things to say about the applicability of that judgment to the sentencing task I have before me. Firstly, that sentencing range was for a late plea, not an early one. Secondly, at the time the decision was handed down the sentencing option of an intensive correction order was not available. Thirdly, and clearly most importantly, it is a guideline rather than a straightjacket. 4Since that judgment was handed down there have been many decisions, including of the Court of Criminal Appeal itself, where sentences other than of full-time custody have been imposed for offences of armed robbery. The court has repeatedly made the point that the primary purpose of sentencing is to protect the community and, whilst that is often achieved by imposing harsh sentences designed to deter others, on occasions that objective is best achieved by promoting the rehabilitation of a particular offender. This is one such case. 5Although the offender's conduct was seriously criminal, despite the odd setback, we have reached the position now where the offender has demonstrated his potential to rehabilitate himself. He demonstrated the likelihood that he will put his offending behaviour behind him and with the assistance of further supervision I am satisfied that this is one case where it would be inappropriate not to give great weight to Mr Hazell's rehabilitation. That is not to of course ignore the other purposes of sentencing but it is to recognise that community safety is in this case best promoted if Mr Hazell's rehabilitation can continue and be set in concrete. 6On 28 September 2010 the offender, under the influence of drugs, went to a supermarket. He was armed with a hammer. He held it up to the lady serving behind the counter and demanded money and cigarettes. She moved away after opening the cash register. The offender lent over the counter, removed money from the register and went to leave the store. As he was leaving however a milkman came in. The offender raised the hammer to head height and swung it towards that milkman. Fortunately the milkman was holding a milk crate and he was able to lift it and block the blow from the offender. 7The offender then ran away. He was ultimately found hiding nearby. He was interviewed and incriminating material was found which clearly indicated that he had committed those offences I have just described, an offence of armed robbery and common assault. He remained in custody, bail refused, for some time, three months and twenty-seven days and there was a further one day in custody in June last year. I will get to this later, but he has also served some periods of quasi custody. 8The offender was born in July 1991, so is still a relatively young man. His parents separated when he was seven. He lived with his mother and was provided with a stable and supportive environment. He finished Year 11, did a one year horticultural course and then started work. However he has had difficulties relating to his drug use, as well as excessive alcohol consumption. He started using both at the age of fifteen. He told the author of the presentence report that they became a problem when he turned seventeen and those problems continued until he committed these offences. 9He has expressed his remorse for his behaviour and told the author of the pre-sentence report that he had consumed not only alcohol but also that he had consumed drugs. When interviewed in June last year the probation and parole officer said this: "Mr Hazell appears to have now come to the realisation of just how stupid and foolish his offending behaviour was and deeply regrets his actions for which he takes full responsibility. He has expressed remorse for the victims of his offences and has taken positive lifestyle changes to address his offending behaviour." 10I mentioned before that the offender had spent some time in custody. He was granted bail in the Local Court, a condition of that bail being that he attended a drug rehabilitation centre. Unfortunately there was a lapse by the offender since his admission to the Glen Centre. He consumed alcohol to excess and also committed another offence, this one of dishonesty. Ordinarily of course that would suggest that the offender's rehabilitation was unlikely but the Glen Centre was willing to have him back after a period of time and I was persuaded last year to allow him a further chance to demonstrate his rehabilitation. 11The information presented to me today suggests that Mr Hazell has taken advantage of that opportunity and has done very well indeed. The updated pre-sentence report tendered by the Crown today speaks of Mr Hazell in what I would describe as glowing terms. It is to be noted that he was subject to a toxicology test which returned a negative result for drugs and a breath analysis test returned a negative result for alcohol. There have been no indicators of relapse to alcohol or drug use during the offender's time on bail. 12He has completed now the Glen Rehabilitation Program and appears to be making an effort towards maintaining stability in his life. He attends Alcoholics Anonymous, he has enrolled in a TAFE course and obtained employment as a furniture removalist, working, depending on what work is available, about four days a week. His employer confirms that he is a good and reliable worker. He has been living with his mother and she reports also in positive terms about Mr Hazell's attitude and his behaviour. 13It has been the Crown's position from the outset that nothing less than full-time custody was appropriate in Mr Hazell's case. The Crown maintains that position today. It says that given the guideline judgment I could not impose a sentence of less than two years imprisonment and, given that a community service order is right out of the question, it is the Crown's position that Mr Hazell must be returned to custody to serve a further period of incarceration. 14I would not want anyone to think that I have reasoned the wrong way in this matter. I am satisfied that given Mr Hazell's behaviour during the commission of those offences, and the effects those offences are likely to have had on the victims of them, that a period of imprisonment is required. I have determined the length of that sentence after considering, not only the matters that I have thus far mentioned, but also the matter I hinted at before of the offender's pre-sentence custody. 15As well as three months and twenty-seven days in prison, he has spent some time in quasi custody as a resident at the Glen Rehabilitation Centre. He pleaded guilty at an early stage to these offences. 16The result is that having taken into account all those matters I do not consider that if I were to date a sentence from today the sentence would be more than two years. 17Accordingly, I consider it appropriate to refer Mr Hazell for consideration as to whether he is a suitable candidate to serve his sentence by way of an intensive corrections order. 18Now, Mr Hazell, I have seen you many more times than most offenders. Most offenders come in once. I send them to gaol. They go out that door. I never see them again. I have spent a lot of time with you because I consider, as I have just said in that judgment, that it is best to focus on your rehabilitation. But that does not mean that you are out of the woods yet. Should there be an adverse report between now and 13 April when you come back before me there is still a chance you will be going to gaol for more time. Do you understand that? You have done well so far, do not let up your obvious positive efforts to keep out of trouble. Do you understand? 19OFFENDER: Yes, sir. 20HIS HONOUR: You are close to avoiding further gaol, but you haven't got there yet. Do you understand? 21OFFENDER: Yes, sir. 22HIS HONOUR: I will adjourn. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2012