R v Hamson

[2010] NSWDC 74

CITATION:	R v HAMSON [2010] NSWDC 74
HEARING DATE(S):	17 September 2009 5 February 2010 30 April 2010
JUDGMENT DATE:	30 April 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. The imprisonment period is eighteen months. I suspend the execution of that sentence under s 12 of the Crimes (Sentencing Procedure) Act.
CATCHWORDS:	CRIMINAL LAW - Sentence - Assault with intent to rob
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	The Crown Anita Danielle Hamson
FILE NUMBER(S):	DC 2009/00068217
SOLICITORS:	Director for Public Prosecutions Legal Aid Commission

JUDGMENT

1 HIS HONOUR: Anita Hamson committed a serious offence about a year ago on 10 March 2009. She was with her co-offender, Robert Reddy, when a woman took some money out of an ATM in their vicinity. She was just about to put the money into her wallet when the offender reached over her shoulder and grabbed the money. Not surprisingly, the victim of the offence held onto the money, which caused Ms Hamson to lose her grip. However, they then had a struggle. Ms Hamson would not give in, nor would the victim. During that time, the offender grabbed hold of the victim’s hand, which caused small scratches to her right thumb and right little finger. After the struggle ended, the victim tried to get away, but the co-offender, Mr Reddy, prevented her from doing so. However, she managed to push past Mr Reddy and run away, where she fell over, suffering more scratches and grazes. Ms Hamson and Mr Reddy gave up, and walked away, but the victim recognised them later on, after having been treated in hospital for her injuries, and they were arrested

2 Ms Hamson was interviewed by police, and while she admitted being there, she denied the allegation she tried to take money from the victim. That, of course, was not true. She was charged, and, while she was released to bail, she was re-arrested the following day. She remained in custody for a total of sixty-nine days, until she got Supreme Court bail.

3 She first came before me in September last year. It was at that stage that Ms Hamson’s lawyer, Ms Sanders, asked that I grant her client the benefit of a s 11 remand so that Ms Hamson could attend Biyani House. The Crown did not oppose that. There were indications at that stage that Ms Hamson was capable of rehabilitating herself, and so I gave her the opportunity of demonstrating to me that she should not receive a sentence of full-time custody, a sentence that, on one view, she richly deserved.

4 The matter came back before me more recently in February this year when Ms Sanders asked that I adjourn the matter until today and continue the s 11 remand.

5 I now have before me a number of reports about Ms Hamson and her progress to date. Ms Hamson was born in Melbourne. Her mother and father separated, with her mother taking the offender and her sister to Newcastle when Ms Hamson was about six. Ms Hamson has sometimes lived with her father and other times with her mother, although she has not recently spoken to her mother with any great regularity. She does, however, have a close relationship with her father and also with her sister. She left school in year nine, and has not yet completed her school certificate. She has had some work in the past, but her major occupation to date has been as a sex worker. Consistent with that activity, she has been a regular drug user, using cannabis at fifteen and later other drugs including heroin. At one stage she was on the methadone program.

6 When she came before me in September last year there were indications that Ms Hamson was willing and able to put her life of crime behind her. She has other offences on her criminal history apart from the one that I must sentence her for, but there were suggestions that with some help, Ms Hamson might be able to turn her life around. That has largely proved to be the case. I say “largely” because of one significant blip in Ms Hamson’s rehabilitation. Ms Hamson was with Biyani for a number of months and was accepted into the Stepping Out program as a means of re-entering the community. However, Ms Hamson was found to have consumed drugs; cannabis on two or three occasions, as well as amphetamines. This would ordinarily result in her being excluded from the Stepping Out program because of their strict requirement that a person has six months drug free before they can be accepted into their program. However, those that are in control of the Stepping Out program must have been impressed with Ms Hamson, because they made a significant exception to her. They have allowed her to enter the Stepping Out program on a trial period.

7 Part of her re-entry into the community involves living with her father on the weekends, and on occasions midweek, re-establishing contact with her father and sister, going to TAFE, studying and working hard. There is much to suggest that Ms Hamson is capable of turning her life around and becoming a worthwhile citizen and a person who is proud of herself.

8 There remains, however, the concern about her recent drug use. She explained in evidence that it was primarily due to the problems of living in Biyani with, in particular, a rather difficult resident. It seems that not only other residents such as Ms Hamson, but also staff found a great deal of difficulty in dealing with one particular resident, and this affected the entire household. It was in those circumstances that Ms Hamson says that she succumbed to temptation to smoke cannabis and consume drugs. Despite that blip, Ms Hamson’s progress has been generally satisfactory. She gave evidence today that she herself recognises that drugs do nothing for her. In one sense, she says, it has been good that she consumed those drugs, because she realises now that they are no longer for her.

9 This is, of course, a matter where I cannot lose sight of the fact that a perfectly innocent person was assaulted with intent that she be robbed by the offender who was in company with another person. People are entitled to use ATMs without drug users, such as Ms Hamson was, attempting to rob them of money which is legitimately theirs, especially in circumstances where they are injured. Ordinarily, therefore, because of Ms Hamson’s serious offence, she would go into full-time custody. She has done sixty-nine days bail refused in this matter, but objectively on one view she should do much more because of the seriousness of her misconduct. On the other hand, as I have expressed earlier when dealing with Ms Hamson, it is in the community’s interests for Ms Hamson to be rehabilitated. If she leaves her offending behaviour behind, then the community is better off.

10 I am satisfied that I should impose a sentence on Ms Hamson which focuses on her rehabilitation. But one way that it does that is by ensuring that if she does relapse she will be significantly punished. I should note that Ms Hamson pleaded guilty at an early time to this offence. I will not separately quantify the discount that I have allowed for that matter, but say that it is one of a number of matters that have led to me imposing a different form of sentence than I would otherwise.

11 The order I make is this, the offender is sentenced to imprisonment. The imprisonment period is eighteen months. I suspend the execution of that sentence under s 12 of the Crimes (Sentencing Procedure) Act. It is a condition of the suspension, of course, that Ms Hamson enter into a bond to be of good behaviour. The conditions of that bond are, not only that she is to be of good behaviour but also that she participate in the Stepping Out program and follow the reasonable directions of that service in order to maintain her accommodation and address her underlying issues as regards drug use, her mental health and sexual assault counselling.

12 Ms Hamson is also to continue to attend TAFE and to apply herself to her studies. When appropriate she is to actively seek employment. She is to comply with mental health treatment as directed by a medical practitioner. She is to continue to engage with drug and alcohol counselling and treatment. And she is to be subjected to random but frequent urinalysis in order to ensure that Ms Hamson consumes no illegal drugs whatsoever.

13 Ms Hamson, I want you to listen very carefully to what I’ve got to say. I have got a document before me that says that should future drug use be detected, you should be put in a residential rehabilitation program. Now, that is not going to happen. If drug use is detected, there is only one place you are going to be residing, and that is in custody. Ms Sanders is going to, no doubt, tell you that I generally put people like you in gaol without much hesitation. And it is most unusual for me to spend so much time on a person like yourself, giving them s 11 remands and seeing you regularly as I have. Usually, I would put you straight into gaol without much hesitation. So, not only have Stepping Out taken an unusual course for them, but I have taken an unusual course for me. But, what that means is that if you disappoint me, I am going to have no hesitation in putting you in gaol, do you understand that? So, next time you are under a bit of stress, next time you get the opportunity to consume drugs, you are going to think about a number of things. One of the things I want you to think about is, “if I consume this drug, I am going to be found out and I am going to go to gaol”. Think about that when you decide whether it is worth it or not. Do you understand? All right, thank you very much for your assistance, Mr Crown and Ms Sanders.

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