R v Hammond [2014] NSWDC 175

District Court New South Wales

Medium Neutral Citation: R v Hammond [2014] NSWDC 175 Hearing dates: 24 - 25 July 2014 Decision date: 25 July 2014 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period or 2½ years and a head sentence of 6 years Catchwords: CRIMINAL LAW - Sentence - Armed robbery - On parole at time of offending Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Fernando (1992) 76 ACrimR 58 R v Henry [1999] NSWCCA 111;(1999) 46 NSWLR 346; (1999) 106 AcrimR 149 Category: Sentence Parties: The Crown Ian Brian Hammond - Offender Representation: Director of Public Prosecutions Aboriginal Legal Service File Number(s): 2013/347987

Sentence 1HIS HONOUR: 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". Mr Hammond has a significant history of criminal misconduct, beginning in the Children's Court and including offences of armed robbery, the offence for which Mr Hammond must now be sentenced today. Indeed, at the time he committed the armed robbery for which I must sentence him he was on parole for an offence of armed robbery, having been released from custody a mere two days earlier. Mr Hammond demonstrates a continuing attitude of disobedience towards the law such that retribution and protection of society need to play an important part in the sentence I will impose upon him. 2Mr Hammond, leading up to his release from parole, was hoping to go to Brewarrina. He had family there and had plans for the future, but upon his release he was told that that could not happen and he was placed in a halfway house. Very shortly afterwards he met up with someone, consumed drugs and committed the offence I am about to describe. 3A Mr Brandon McDonald was walking home from work late on Monday 18 November 2013. The offender approached him and asked him for some money. Mr McDonald gave him some money but then the offender turned towards Mr McDonald and said, "I have a knife here, give me your wallet." Mr McDonald saw that the offender was holding a knife. He could see about 4 or 5 centimetres of the blade protruding from Mr Hammond's hand. Sensibly, Mr McDonald threw his wallet onto the ground and shouted, "Get away from me." Mr Hammond appeared not to have noticed because he repeated his demand but Mr McDonald emphasised that he had already thrown the wallet away and pointed it out on the road. At this, Mr Hammond picked up the wallet and walked away. 4Mr McDonald then called police. When they arrived Mr McDonald got in the police car and they drove around the area. Eventually they found someone who looked like the man who had just robbed Mr McDonald. Police officers approached him. Mr Hammond, because it was he who was approached, began to walk away quickly, throwing something as he left. Eventually he was arrested. He said, "It wasn't me, I haven't done anything." When police searched the area where Mr Hammond was seen to throw something away they found some of Mr McDonald's property. When it was suggested to Mr Hammond that he had thrown this property away he said, "You prove I threw them there." Fortunately, CCTV footage demonstrated exactly that. 5The circumstances that I have described demonstrate close affinity with the guideline offence of armed robbery postulated in the judgment of R v Henry [1999] NSWCCA 111;(1999) 46 NSWLR 346; (1999) 106 ACrimR 149, with two exceptions. One is that Mr Hammond's plea of guilty was entered at the earliest opportunity. The sentence proposed in Henry was for a plea of guilty of limited utility. And secondly, of course Mr Hammond is not a young man with a limited criminal history. Nevertheless, the Henry guideline is of importance in determining the appropriate sentence to impose in the present case. 6Consistent with Mr Hammond's criminal history is his background. He comes from a large family, being the youngest of nine siblings. As he grew up he was placed in his grandmother's care in Dubbo, because of his mother's frequent intoxication from alcohol and misuse of prescription pills which rendered her incapable of caring for her children. A number of other extended family members lived with Mr Hammond's grandmother. Mr Hammond told the psychologist that he liked living there but the circumstances were far less than ideal primarily due to offending conduct committed by some of Mr Hammond's family members. 7His uncles would engage in domestic violence when intoxicated with alcohol, which apparently occurred quite frequently. His grandmother would attempt to protect him from his uncles' violence by blockading herself and Mr Hammond in her bedroom, pushing a cupboard against the door to keep his uncles from entering. On occasions Mr Hammond would be sent by his grandmother out a window in order to contact the police. 8This sort of upbringing could only really have had a lasting detrimental effect on Mr Hammond. As he grew up he learnt that violence was commonplace and he learnt that adults would stand over those with money in order to get money to buy alcohol. Later, he did live with his mother but she, because of her addiction to alcohol, was frequently intoxicated and passed out. 9Although Mr Hammond enjoyed going to school and was a talented rugby league player, which gave him some positive notoriety, once his grandmother was placed in a nursing home his lifestyle became increasingly unstable. He went to school less and less and commenced what has become an almost lifelong misuse of drugs. He lost his place in the rugby league team, his grades and school attendance continued to decline and eventually he was asked to leave school. 10He has had some employment in the past but not much. He wants to work in the future. He has plans that involve returning once again to rural New South Wales where he sees that he will have more of a chance of turning his life around than he has had in the past. On occasions Mr Hammond has attempted to rehabilitate himself from his use of drugs, but, as is obviously the case, those attempts have not been successful. 11One of the problems that Mr Hammond faced, and has faced in the past, concerns his E classification. At one stage Mr Hammond was convicted of escape, and Corrective Services authorities classified him accordingly. It is notorious that opportunities for things such as work release are denied those with such a classification. The result is that many prisoners like Mr Hammond are released on parole without ever having had the opportunity to ease their way back into society that is given to those prisoners who do not have such classification. 12Some might be forgiven for thinking that the way E classification prisoners are administered represents a very shortsighted policy which does not do all that can be done to reduce the likelihood that prisoners such as Mr Hammond will re-offend upon release on parole. 13Fortunately in Mr Hammond's case he has recently been reassessed. He is no longer in an E classification and so when he is released on parole in the future it is hoped that this will be after a period where Mr Hammond is given the opportunity to spend some time in the community. If so, when he is released from prison gates, the chances that he will be able to avoid reoffending in the future are maximised. 14I mentioned that Mr Hammond was on parole at the time of this offence. That is, of course, a seriously aggravating feature but I also have to be careful not to double count by selecting a commencement date for this sentence which does not take account of the fact that he has been in custody and extending the sentence because of the aggravating feature that he committed this offence whilst on parole. I have decided to commence the sentence from the date of his arrest, 18 November 2013, notwithstanding the circumstance that he is currently serving the balance of parole of his sentence. 15Mr Hammond's case is clearly one where the principles in R v Fernando (1992) 76 ACrimR 58, recently re-emphasised by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, are of direct application. His background and his upbringing was such that his decision as to whether he would abuse drugs, his decision as to how he would respond to various stresses in his life, his decision as to whether he would commit offences or not were made in the context of a background where such conduct was commonplace. Not all of us have the same opportunities in life, not all of us are equally able to make the decision to live a law abiding lifestyle. Mr Hammond's background is a significant mitigating feature and continues to be so, notwithstanding the passage of time. 16One of the most important features of the sentence that I have to impose upon Mr Hammond concerns the issue of special circumstances. He has been in continuous custody since 31 October 2007, apart from the two days that he was on parole before he committed this offence. Effectively he is serving a long period of custody, and so in considering the ratio between nonparole 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 impose sentence as follows, 17Mr Hammond is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 18 November 2013 and a head sentence of six years. Mr Hammond will thus be eligible to be released to parole on 17 May 2016.