R v Hasselberg

[2023] NSWDC 601

District Court

New South Wales

Medium Neutral Citation:

R v Hasselberg [2023] NSWDC 601

Hearing dates:

3 November 2022

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Taine Hasselberg is convicted.

2   After taking into account the discount for the plea of guilty and 3 months of presentence custody, I impose a term of imprisonment of 2 years.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 November 2023) and expire on 2 November 2025.

4   The offender must report to the Leichhardt Community Corrections Office on or before 4pm on 10 November 2023 The standard conditions of the order apply:

(a)   the offender must not commit any offence; and

(b)   the offender must submit to supervision by a Community Corrections Officer.

5   The following additional conditions apply:

(a)   the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

(b)   the offender must receive treatment for his mental health as reasonably directed by Community Corrections;

(c)   the offender must receive treatment for drug rehabilitation as reasonably directed by Community Corrections; and

(d)   the offender must complete 200 hours of community service work.

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Legge v The Queen [2007] NSWCCA 244

Muldrock v R (2011) 244 CLR 120

R v Henry (1999) 46 NSWLR 346

R v Olbrich (1999) 199 CLR 270

R v Zamagias [2002] NSWCA 17

Category:

Sentence

Parties:

Regina (Crown)
Taine Hasselberg (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid of NSW (Offender)

File Number(s):

2022/105768

Publication restriction:

None

JUDGMENT

Introduction

1. Taine Hasselberg (the offender) appears for sentence after pleading guilty in the Local Court to an offence of robbery armed with an offensive weapon, contrary to section 97(1) Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment.

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and are entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Procedural History

5. When the matter was first listed for sentence in November 2022, I deferred sentencing for 12 months pursuant to s 11 Crimes (Sentencing Procedure) Act 1999. At that time the offender had been abstinent from alcohol and drugs for a few months and had been accepted by a residential rehabilitation program. He was suspended from the program for being in possession of drugs but was placed on a waiting list to get back into the program. At the time that the s 11 order was made, the offender intended to go back to residential rehabilitation.

6. In deciding to make the s 11 order, I took into account that the path to drug and alcohol rehabilitation is not linear and it is usual for most people to have some relapses along the way. The offender had shown some ability to remain abstinent and appeared to be making efforts to deal with his addiction issues.

7. The offender attended and completed the Triple Care Farm Rehabilitation Program between December 2022 to March 2023. It thereafter was followed up in the Triple Care After Care Program.

8. In about March or April 2023 he was set up to live by himself in an apartment in Coogee. That became overwhelming for him and he returned home where he is being cared for by his parents.

9. After that time the offender has committed some further offences to which he has pleaded guilty and been sentenced in the Local Court. The first of which involved his exclusion from the place where he had been set up to live.

10. Between 18 April 2023 and 20 April 2023 he committed the offences of remain on enclosed land and destroy property for which he was placed on a Conditional Release Order (CRO) for a period of 6 months with an abstention condition. I note the facts of those offences.

11. On 2 July 2023 he committed the offence of larceny for which he was fined the sum of $500. This involved the taking of a Hello Fresh box that had been delivered to a neighbour’s house.

12. On 21 September 2023 he committed the offence of shoplifting for which he was placed on a 12 month supervised Conditional Release Order with an abstention condition.

13. A detention application was made on 26 September 2023. The breaches of bail were established but no further orders were made and the offender has remained on bail.

14. It is clear by his commission of these further offences, that the offender has not abided by the terms of the s 11 remand, including the good behaviour and abstention conditions.

15. There is no evidence that he was under the influence at the time of these further offences. His mother gives evidence that he has been largely abstinent except for one occasion where he used alcohol.

Facts

16. The parties presented an Agreed Statement of Facts, which can be summarised as follows.

17. The offender is currently 20 years of age.

18. On 9 April 2022, Aditya Tarigopula (the victim) was an employee of Shell Coles Express Service Station in Stanmore (the service station). He commenced his shift at 8.00pm and was scheduled to conclude at 6.00am the following day. The victim was the only staff member present at the service station.

19. The offender arrived at the service station at around 12.03am on 10 April 2022. When he approached the front door, it was locked. He knocked on the door and waited to be let into the store, before activating the doorbell by hand. On hearing the doorbell, the victim opened the door for the offender. The offender was wearing a disposable surgical mask, a grey tracksuit top and pants, and black and white shoes.

20. The offender approached the counter and gave the victim a handwritten note on a piece of paper, that read, “Listen I want 200 hundred dollars”. The offender then said, “Listen I want $200, I have a knife with me”, to which the victim said, “No, I can’t”.

21. The offender lifted the right-hand side of his top, revealing a black handle and metal which the victim believed to be a knife in his waistband. He said, “Listen, I don’t want to hurt you, but I want $200…if I don’t have $200 by tomorrow I will be dead”.

22. The victim was in shock and feared for his safety. The victim opened the cash register and handed the offender a sum of notes. On receipt of the notes, the offender turned around and started walking towards the sliding door. The offender took a total sum of $90 in cash.

23. After getting to the middle aisle, the offender turned back towards the counter, to retrieve the paper with writing on it. The offender then left the store. He apologised to the victim three times.

24. The victim contacted the store manager and activated the duress button notifying the private security company and police. At 12.19am police attended the service station and commenced investigations.

25. The offender’s fingerprints were found on the external surfaces of the sliding entry door.

26. The offender was arrested on 12 April 2022 and taken to the police station. He participated in an ERISP, where he made full and frank admissions to the offence. He admitted to police that he spent the $90 on Xanax.

Sentencing Assessment Report

27. The Court received a Sentencing Assessment Report, the contents of which can be summarised as follows.

28. At the time of the report the offender was residing with his family in Leichardt, with whom he has a stable relationship.

29. The offender is currently unemployed and is in receipt of the Jobseeker allowance from Centrelink.

30. The offender reported that he was previously employed within the fast food industry and held employment until the start of 2022.

31. The offender has no prior criminal history.

32. The offender attributed his offending behaviour to his substance use, declining mental health and financial circumstances. He expressed his feelings of shame and remorse for the offences, accepted his guilt in relation to the offending, and acknowledged the need to change his behaviour to benefit his future and prevent re-offending to the author of the report.

33. The offender reported a history of alcohol and illicit substance use. He stated that a month prior to the offence he was consuming both heroin and unprescribed Xanax (alprazolam) to cope with untreated mental health issues. On the day of the offence, he was under the influence of Xanax and was unable to make sense of his behaviour. He also reported experiencing memory issues at that time.

34. The offender reported that he has remained abstinent from drugs and alcohol for the past five months and that he would like to undertake residential rehabilitation to address both alcohol and illicit substance abuse post-sentence.

35. The offender disclosed a childhood diagnosis of autism spectrum disorder and attention deficit hyperactivity disorder (ADHD). He also reported a history of mental health symptoms including anxiety and depression. He was diagnosed with autism and ADHD during childhood. He stated that he is currently taking mirtazapine to address his anxiety.

36. He is currently not engaged in further intervention to address his mental health conditions.

37. The offender reported that in the lead up to the offence, he was experiencing a rapid decline in his mental health and identified that he was self-medicating with illicit substances.

38. The offender has completed a Mental Health Care Plan with his General Practitioner and stated that he would like to obtain a comprehensive mental health assessment and re-engage in treatment to address his mental health concerns.

39. The offender expressed contrition for his offending behaviour and identified that his actions may have caused significant harm and detriment to members of the community and himself. He stated that he apologised to the victim after committing the offence, although his is unable to recall specific details.

40. The offender was assessed as a Medium/Low risk of re-offending and suitable to undertake community service work.

Offender’s Case on Sentence

41. The offender tendered the following documents:

1. report of Anissa Mouti (psychologist) dated 1 May 2012;

2. report of Associate Professor Clarke dated 10 September 2012;

3. report of George Tirris (Clinician, MERIT Program) dated 22 July 2022;

4. letter from the offender (undated);

5. letter from the offender’s mother dated 26 October 2022; and

6. report of Dr Richard Furst (forensic psychologist) dated 26 October 2022.

42. The following is a precis of the evidence relied upon by the offender. I will try not to repeat the matters raised in the Sentencing Assessment Report.

43. The offender is currently 20 years of age. He is single and lives with his parents, his 17-year-old sister and 14-year-old brother. He also has a 21-year-old sister who has moved out of home and with whom he is no longer in contact.

44. The offender was born in Sydney and attended high school until the third term of Year 12, when he was asked to leave.

45. Throughout his schooling, the offender had social difficulties and learning difficulties, including delays in reading and writing, and an inability to focus during class. The offender was hyperactive and had a poor attention span, which Dr Furst opined were consistent with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). Dr Furst reports that offender was commenced on Ritalin by his paediatrician when he was 11 years of age for two years.

46. A letter from Anissa Mouti, clinical research psychologist at Westmead Children’s Hospital outlined results from testing conducted in April 2012 for intellectual disability and autism. Ms Mouti’s testing found that the offender did not have an intellectual disability, but that he was on the “cusp” for the diagnostic classification of autism/Asperger’s.

47. The offender has a history of anxiety and depression, which began when he was around 16 years old. He reported in his interview with Dr Furst that at around that time, he would struggle to get out of bed and would feel very anxious. He reported feeling a tingling sensation in his hands and experiencing shortness of breath and severe nausea, as well as an avoidance of public places which Dr Furst opined was indicative of agoraphobia.

48. The offender drank alcohol and smoked cannabis from around the age of 15, and this escalated over the next year or so. By age 16, he was smoking approximately 4g of cannabis per day and drinking about one bottle of wine each weekend. From the age of 16, the offender would take one to two Xanax pills daily as well as Fentanyl patches to cope with his anxiety.

49. The offender began using heroin when he was around 16 or 17 years old, and this continued until August 2022. He also smoked or injected methylamphetamine on a regular basis for a period when he was 18 years old.

50. In her letter to the Court, the offender’s mother stated that neither she nor the offender’s father had any experiences with illicit substances, and so they did not recognise that the offender had been using illicit substances. She stated that she believed that he was experiencing normal teenage behaviour.

51. The offender entered a rehabilitation facility on 1 August 2022 before being suspended for possession of drugs. He entered a waiting list to return to the unit and in fact returned and successfully completed the program.

52. The offender reported to George Tirris of the MERIT Program, that when drugs were unavailable he would consume up to two litres of wine daily.

53. The offender had been living in a tent in the Royal National Park for about two months prior to committing the offence because he did not want to be at home.

54. Dr Furst reported that in his interview with the offender, he expressed guilt in relation to the robbery on 10 April 2022. He claimed not remembering committing the offence, because he had taken four to five Xanax tablets, 0.05g of heroin, half a “cap” of crystal methamphetamine, as well as Fentanyl.

55. The offender claimed that he committed the offence to fund his drug use.

56. After his arrest, the offender completed the MERIT Program over twelve weeks. The offender reported to Mr Tirris that he had been abstinent of drugs and alcohol since April 2022 and had also attended several online SMART Recovery meetings from April 2022. Whilst on the MERIT Program, the offender has been confined to the family home, other than taking the dogs for a walk with his mother daily.

57. The offender worked in a fast food chain from ages 14–17. He was working at McDonalds for two months in early 2022 but is currently unemployed. The offender plans to re-enter the workforce and has a friend in the building industry who has offered him work.

58. In his letter to the Court, the offender expressed remorse and re-stated that he has been abstinent of all drugs. He expressed concern for the impact that his offending may have had on the victim.

59. The offender is presently enrolled in a Certificate IV in Hospitality at TAFE. He is presently abstinent and has been attending support group meetings. He is presently looking for work.

60. His mother was called to give evidence today. Her testimony was that the offender needs structure in his life. As a result of being dealt with by the Local Court for the matters in the period of the adjournment he has come under the supervision of a community corrections officer at Leichhardt who has kept in regular contact with him.

61. The offender is currently attending Narcotics Anonymous meetings although his ability to do so has been impacted by the curfew part of his conditions. He has qualified to graduate from the Triple Care Farm program. His mother believes that he needs work to assist him with his mental health. It is obvious that his parents and family have provided extensive support for him including banning alcohol from the household to avoid any temptation that he might relapse.

Consideration

Objective seriousness

62. The offence involved minimal planning. The offender had a knife with him that he kept in the waistband of his pants, showing the handle to the victim. The offence involved some threat of violence, but no actual violence was used. The victim was vulnerable by reason of his occupation and the fact that the offence occurred late at night when there were not many people around. The amount of money taken was small. The offender was polite and apologised for his actions at the time. The offender was motivated by the need to obtain money for drugs.

63. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the s 97(1) offence is more serious than the offences considered in Henry, but also the guideline judgment related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]–[59].

64. As a child the offender suffered from ADHD and was diagnosed as being on the Autism/Asperger’s spectrum. His mental condition made schooling difficult and by age 16 he was suffering from significant anxiety and depression that impacted his ability to get out of bed and to go out in public. He started drinking alcohol and using drugs at 15. His drug use quickly escalated to the use of multiple harmful substances. I am satisfied that the impacts of his mental condition were such that his addictions arose when he was not of the age or maturity at which he could make an informed choice. His mental condition is characterised by attentional deficits, hyperactivity, anxiety and impulsivity. In all of the circumstances his moral culpability for the offence is reduced.

65. I have taken into account the maximum penalty for the offence.

66. The objective seriousness of the index offence is towards the bottom of the low range.

Deterrence

67. General deterrence is of significance to robbery offences. The penalty imposed must signal to others contemplating similar crimes that they will be met with significant punishment.

68. General deterrence may be afforded less weight where the offender suffers from a mental condition because they are not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. I accept Dr Furst’s opinion that the offender was suffering from Panic Disorder, ADHD and Substance Use Disorder and that the symptoms of those conditions were causally related to the offending conduct.

69. There is also a need for specific deterrence. The offence for which the offender appears for sentence is significantly more serious than the balance of his criminal history. To date, he has been provided with a number of chances to pursue rehabilitation opportunities. He needs to understand by reference to the penalty imposed on him for this offence that if he continues to commit offences that he will be met with significant punishment.

Aggravating Factors

70. There are no relevant aggravating factors.

Mitigating Factors

71. The offender is young and has taken some steps in the past towards drug and alcohol rehabilitation. He has the unwavering support of his mother. I am satisfied that he has some prospects of rehabilitation but I am not satisfied that the mitigating factor provided for by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999 is made out. The offender’s prospects of rehabilitation would be greatly improved by close supervision and engagement with mental health treatment.

71. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to Dr Furst and has accepted responsibility for his actions. His plea of guilty also indicates remorse.

72. The offender’s mental condition would make him particularly vulnerable in prison to abuse and exploitation. Further, I am satisfied that sending him to prison would cause a substantial exacerbation of his mental condition that could lead to traumatisation or long term psychological damage.

73. I have taken into account that the offender served 2 days of presentence custody.

74. Taking into account all of the relevant matters, I have concluded that the appropriate sentence is one below the Henry guideline. This is a case where it is appropriate to afford the offender one last chance at rehabilitation, conditional on him accepting supervision and receiving mental health and drug rehabilitation treatment.

Penalty

76. Taine Hasselberg is convicted.

77. I have considered section 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

78. After taking into account the discount for the plea of guilty and 3 months of presentence custody, I impose a term of imprisonment of 2 years.

79. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the reasons I have already given and the following additional reasons, including by returning the purposes of sentencing in s 3A.

80. I have had regard to community safety as the paramount consideration. This is a case in which community safety is best achieved by the rehabilitation of the offender by requiring him to undertake intensive treatment of his mental condition and drug addiction in the community: R v Zamagias [2002] NSWCA 17 at [32] (Howie J). The offender presents with a complex mental condition that has led him to use drugs and abuse alcohol. His criminal history, apart from this offence, has been a nuisance to the community rather than a threat to community safety. The objective seriousness of this offence was low and whilst a serious type of offence, it lacked sophistication and was characteristic of the offender’s amateur criminal status.

81. The offender is young and immature by reason of his mental condition and rehabilitation should be afforded greater weight. He needs assistance through long term supervision to deal with his mental health and addiction issues.

82. By reference to the severity of his mental condition and the genesis of his addictions, his moral culpability is reduced and accordingly general deterrence, denunciation and retribution can be afforded less weight.

83. An order that the sentence be served by way of an ICO will make the offender accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the community.

84. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 November 2023) and expire on 2 November 2025.

85. The offender must report to the Leichhardt Community Corrections Office on or before 4pm on 10 November 2023. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

86. The following additional conditions apply:

1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

2. the offender must receive treatment for his mental health as reasonably directed by Community Corrections;

3. the offender must receive treatment for drug rehabilitation as reasonably directed by Community Corrections; and

4. the offender must complete 200 hours of community service work.

87. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody.

88. The offender must attend the Registry to confirm his residential address so that a copy of the order can be posted to him.

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Decision last updated: 16 February 2024