R v Hammond

[2019] NSWDC 134

District Court

New South Wales

Medium Neutral Citation:	R v Hammond [2019] NSWDC 134
Hearing dates:	27 March 2019
Decision date:	27 March 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to a fixed term of 15 months imprisonment for the offence of attempted aggravated break and enter; and a term of 3 years imprisonment with a non parole period of 18 months for the offence of aggravated break and enter and commit serious indictable offence.
Catchwords:	CRIMINAL LAW – attempted break and enter and commit serious indictable offence – aggravated break and enter and commit serious indictable offence – previously unrevealed sexual abuse of the offender whilst in juvenile detention – impact on length of sentences and finding of special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW): ss112(2) and 344A
Category:	Sentence
Parties:	Regina (Crown) Glen Hammond (Offender)
Representation:	Mr Ng (DPP) Mr Kennedy (Offender)
File Number(s):	2015/00010042; 2017/00368367; and 2018/00071292
Publication restriction:	Nil

Judgment

1. Glenn Hammond, you appear for sentence today in relation to two offences.

2. The first offence is attempted aggravated break enter and commit serious indictable offence - the serious indictable offence being larceny.

3. This involves a contravention of s 112(2) of the Crimes Act, in conjunction with s 344A of the Crimes Act. The maximum penalty for that offence is twenty years imprisonment and there is no standard non-parole period.

4. The second offence is aggravated break enter and commit serious indictable offence, the serious indictable offence again being larceny.

5. This also involves a contravention of s 112 subs (2) of the Crimes Act. In this case, however, because s 344A is not involved, although the maximum penalty is twenty years there is a standard non-parole period of five years imprisonment.

6. The fact surrounding your offending are quite straightforward and can be summarised as follows.

7. In early November 2017, you were on parole - and you had been on parole for three months.

8. In the early hours of the morning of 14 November 2017 you and a co-offender, Andrew Warner, went to the Milperra Post Office and you tried to break in. It was Mr Warner who had the implement and who actually tried to effect the break-in. You were present carrying a bag. I am satisfied that the only rational inference in connection with that bag is that it was intended by you to be the means by which your ill-gotten gains were to be taken from the post office. But you and Mr Warner were unsuccessful in breaking into the post office.

9. About twenty-four hours later, that is to say in the early hours of the morning of 15 November 2017, you went to another post office with Mr Warner. This was the Panania post office. This time you and Mr Warner were successful in using a screwdriver to gemmy open a glass sliding door - and in the course of which causing a great deal of damage to the door. Once inside the post office, you and Mr Warner stole fifty-two mobile phones which had a value of just a little under $6,000. Ultimately, when the police effected a search warrant, four of those mobile phones were recovered but the balance were not.    

10. It is necessary for the court to make an assessment of the objective seriousness of those offences for offences of their kind bearing in mind there is a wide range of matters that can be covered by the rubric “attempted break and enter and commit serious indictable offence.”

11. In so far as the attempt is concerned it is towards, if not at, the bottom of the range for an offence of its type. The second offence sits somewhere equidistant between the middle of the range and the bottom of the range.   

12. Each offence is aggravated in three respects.

13. First, as I have said, you were on parole.

14. Secondly, you were the subject of a s 12 bond, that is, you were the subject of a gaol sentence which had been suspended.

15. And thirdly, it is aggravated by your criminal record.    

16. You did not give evidence today in your sentence hearing. Your subjective circumstances (that is things about your background) have come before the court through two experts’ reports: one prepared in February 2016; the other prepared in March 2019.

17. You were born in Australia and you are now forty-seven years old.

18. You came from a good family. You had hard working parents. Your father worked hard as a boilermaker and your mother worked hard in the home raising you, looking after her husband, and looking after the other children.

19. You left school at year ten and you have a very lengthy criminal history. I shall come back to that shortly.

20. Upon leaving school, you have had little work history. What work you have had has been as an unskilled labourer. Whatever you have legitimately earned, you have spent on drugs. And when not legitimately earning money for drugs, you have committed offences - over and over again.    

21. You first came in contact with the criminal justice system when you were ten years old, and the computer printout of your criminal history occupies thirty-two pages. Your first offence was break and enter. (You are not to be punished for your offences as a juvenile.). As an adult, your criminal history began in 1990, again with break and enter. The Crown has helpfully told me that the offences today are your seventh and eighth break and enter offences. But there are many more offences of dishonesty, stealing, malicious damage, intimidation, being armed with a knife, possessing prohibited weapons, using false instruments (which is fraud), being in possession of goods that were stolen, larceny, shoplifting, common assault - and the list goes on.

22. It is the extensive nature of your criminal history, and the persistence in this type of offending (not only break and enter but related offences) which, in my opinion, constitutes an aggravating factor.   

23. Your use of drugs is also long-term. It started when you were fifteen. In the most recent psychologist’s report you revealed something that I, as far as I am aware, you have not previously revealed. That is, that when you were in juvenile detention as a fourteen year old you were physically and sexually abused in the institution where you were being detained.

24. It may just be a coincidence that twelve months after you were abused in that fashion you turned to alcohol and cannabis - and then speed and then heroin. It may be a coincidence. On the other hand, I have seen a sufficient numbers of cases Mr Hammond in this court over the last ten years where there has been evidence of a direct causal connection between a young person: being sexually abused; not revealing the abuse; and not receiving treatment for the abuse, but seeking to self medicate with alcohol and illicit drugs.

25. It is disappointing that this matter has not been the subject of previous attention by psychologists because if your use of drugs over all these years has, at its cause, what happened to you when you were fourteen, then there is no real prospect of you being effectively rehabilitated from the use of drugs until the cause of your use (or abuse) of them is addressed.

26. It is because of your long history of drug use, and its intimate connection with your long history of offending, and the lack of exploration by any expert as to any connection between the abuse at fourteen and your drug offending, that I have pessimistic views about your prospects for rehabilitation - at the present time.   

27. The Crown has pointed out, in his very helpful submissions today, matters that go against you in the Sentencing Assessment Report and in the psychologist’s report, as to how you have not engaged meaningfully with Probation and Parole. Those submissions by the Crown are correct; your solicitor does not seek to say otherwise.

28. But I have the strong feeling, Mr Hammond, that again we come back to the root cause of the problem (or potentially the root cause of the problem – unfortunately I cannot make a finding that it is because it has been completely unexplored): what happened to you at fourteen?

29. What I do know is what the President of the Royal Commission into the Institutional Abuse of Children said at the commencement of that Royal Commission. I have mentioned it during the course of the hearing today. It is well known to all of the lawyers in the court room - that abuse of children (even what used to be regarded as "minor" sexual abuse) can have catastrophic effects on a child.    

30. I have not overlooked other aspects of your subjective circumstances, Mr Hammond.

31. I have taken note of the relationships that you have had; that you have adult children; that you have the support of your mother and your siblings - your father has unfortunately died. 

32. Clearly no sentence other than one of full-time imprisonment is appropriate for either of these offences.

33. I have also had regard to the sentences which were imposed on your co-offender in the Local Court. I am satisfied, however, that there are significant points of distinction between you and Mr Warner for the reasons submitted by the Crown.   

34. The start date of the sentence, Mr Hammond, will be backdated to when you completed your last period on parole. I decline to start the sentence on 5 December, it will start on 4 February 2018.   

35. A question which has occupied my mind a lot this morning, Mr Hammond, has been the submission made by Mr Kennedy on your behalf for a finding of special circumstances. And the reason it has occupied my mind is because of the matter I have been repeatedly coming back to: and that is no-one seems to have addressed what might well be the fundamental cause of your offending. Certainly nothing has been put before me to suggest that anybody has looked at this. Except for that fact, I would not have had any hesitation in rejecting the submission that there should be a finding of special circumstances. But because that matter seems not to have been explored, I am going to take the unusual step of making such a finding. It is “unusual” Mr Hammond because by reason of the length of your criminal history; the fact that you have been in custody before; and the fact that you are of a mature age, ordinarily a finding of special circumstances would not be appropriate - but I am going to do it today.

36. You will receive a 25% discount for the early pleas that you have entered.    

37. And as a deliberate act of leniency, the sentences will be totally concurrent.

38. For the attempted aggravated break and enter, except for your plea of guilty, the term of imprisonment would have been twenty months. But because of the plea, and the discount of 25%, the term is a fixed term of fifteen months imprisonment to date from 4 February 2018.    

39. In connection with the actual aggravated break and enter, except for your plea of guilty, the term of imprisonment would have been four years.

40. Because of the plea, and the discount of 25%, the term of imprisonment is three years.

41. If there had been no finding of special circumstances, the non-parole period would have to have been two years and three months. Because I am making a finding of special circumstances, the non-parole period will be eighteen months starting 4 February 2018.

42. Before I conclude my remarks, I have previously mentioned that you were on a s 12 bond when you committed these offences. The protocol for a breach of a s 12 bond is that the Judge who imposed the bond must be asked whether she or he wishes to have the bond called up and, if called up, whether that Judge wishes to deal with it or whether it can be done by any Judge of the court. During the course of this morning, my Associate has been in communication with the judge who imposed the s 12 bond. His Honour has indicated that he does wish to call the bond up and that it is to be called up before his Honour. Therefore the s 12 bond is listed for callup in this court complex on 24 April 2019 at 10:00am before his Honour Acting Judge Delaney. A s 77 warrant is to issue to bring you to this court on that date.

43. You may now go with the officers thank you.

Decision last updated: 18 April 2019