Director of Public Prosecutions v Hamann

[2015] VCC 1043

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-11-01425

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT HAMANN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2015
DATE OF SENTENCE:	24 July 2015
CASE MAY BE CITED AS:	DPP v Hamann
MEDIUM NEUTRAL CITATION:	[2015] VCC 1043

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – contravention of suspended sentence - aggravated burglary

Legislation Cited:     Sentencing Act 1991 (Vic), Magistrates’ Court Act 1989 (Vic)

Cases Cited: R v Fuller-Cust [2002] VSCA 168; R v Steggall [2005] VSCA 278; R v Ioannou [2007] VSCA 277; R v Snip [2000] VSCA 205

Sentence:Convicted and discharged. Exceptional circumstances established. Operational period of the suspended sentence extended for 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Solicitor for the Office of Public Prosecutions
For the Accused	Ms E. Clark	Stary Norton Halphen

HIS HONOUR:

1Mr Hamann, if you just remain seated because if it was not made clear enough by Chief Judge Rozenes at the time, I want to make it clear now the circumstances that have led to this matter.

2In this matter, I am dealing with a breach summons insofar as the imposition by Chief Judge Rozenes of a sentence in regard to Mr Hamann on 29 March 2012.  Essentially on that day, Mr Hamann was convicted, sentenced to a period of imprisonment of 151 days, which represented the period on remand and then in addition, given a suspended sentence for a period of 2 years.

3The contravention is admitted.  There was the necessity insofar for the summons to be amended, which excluded the matters referred to by way of further offences, which was the basis for the conviction and a Community Corrections Order imposed for a period of 12 months on 28 August 2014.

4Indeed, it is a result of that, that the judicial monitoring reports had been tendered in this case.  That circumstance presents some complexity because the Court cannot take into account those matters as breach offences.  The only breach offences are those alleged insofar as the conviction on 18 December 2014, which relates to the offences committed on 10 April 2013 being an offence of theft, intentionally damage property and burglary, for which a wholly suspended period of imprisonment of three months was imposed.  The operational period for that was 12 months, which I think you have just told me Ms Clark, expires in on 18 December 2015.  Well, I cannot take into account the additional matters as a breach clearly in determining sentencing, on sentencing authority.  Those matters relate obviously to his general behaviour.

5The submission essentially to me was that I should find exceptional circumstances in this matter.  There were a number of documents tendered in support of that submission.  The first was Exhibit 2, which is the report of Consultant Forensic Psychiatrist Andrew Carroll.

6That report is dated 24 June 2015 and without going through the whole report, I simply go to the summary which is on p.5, which refers to his background.  He has had, unfortunately a background typical of many indigenous persons who have a neglected upbringing.  Such difficult backgrounds often lead to marked drug abuse and criminality, which has occurred here.

7Mr Hamann has been afflicted by substance abuse and indeed, heroin dependency.  He, according to the psychiatrist, is in remission, on treatment as to the heroin but remains dependent in regard to both alcohol and benzodiazepines.  He also, as of June 2015, was abusing methamphetamine.  Dr Carroll said this at paragraph 66:

"Mr Hamann's life trajectory shows evidence of an intense unstable intimate relationship involving his children's mother.  The collateral material assessed that he has periods of depressed mood and problems with anxiety.  The exact duration of these periods of mood disturbances, however, unclear.  Currently he has a degree of relative psychosocial stability with the framework of what appears to be a very strict community program involving correctional authorities.  He informs me that he has engaged well with his new psychologist and is hoping to detoxify from alcohol in the near future".

8Ms Clark also tendered a letter from the general practitioner, which became Exhibit 3. It is not of particular assistance except to note the background, confirm his medication and treatment from a psychologist.

9

Exhibit 4 is a report from Alicia Strickland, which comes about from the Family Drug Treatment Court, which is assisting the family, in order to take steps to trying to provide the children with a stable situation.  That report, dated

16 June 2015 from the clinical case manager of that Family Drug Treatment Court says:

"Mr Hamann is currently in phase 1 of the program where he is required to attend three times weekly substance use detection screening.  Once a week, maintain contact visits with his children and in addition, had recently completed a residential withdrawal detox program" (which I will talk about later).

10Ms Clark also tendered the report from the Launch Housing organisation, being a letter of 18 July 2015, which became Exhibit 5 signed by Craig Henry, the Justice Housing case manager of the Justice Housing Support Program.

11Mr Henry noted that Mr Hamann displayed great insight into his history of offending, that he is currently linked with the psychologist, William Wayne Wright, to address trauma in regard to family issues; in particular, the violence he experienced himself in his own family and the deaths of his father and sister which have impacted significantly upon his mental wellbeing.

12Mr Henry noted that Mr Hamann lists the regaining of custody of his children as his highest priority and acknowledges the potential barriers to that as being the dependence in offending behaviours.  He stated, I think, significantly about Mr Hamann:

"In our work together, I found Mr Hamann to be honest.  I have witnessed him to be extremely motivated and to take steps needed to bring about change.  I believe he is honest about his limitations but willing to push beyond his comfort zone to enact the change needed to abstain from re-offending, abstain from relapse and to work towards regaining custody of his children".

13The final documents were a bundle of Community Corrections Order reports, as I said, which came about as a result of the supervision being undertaken of Mr Hamann by the Court for the existing Community Correction Order, and handed down by His Honour Magistrate Fanning.

14Essentially, there has been positive progress as reported in these reports, however as I discussed this morning with Ms Clark, the ongoing challenges have also presented themselves.  It was those ongoing challenges that concern me about my ultimate order.

15Further, tendered as Exhibit 7, was a number of documents from the ReGen UnitingCare organisation.  There was confirmation that pursuant to the TORQUE rehabilitation programme, that Mr Hamann had been referred there on 15 July.  Further, he had a seven day residential drug withdrawal, which was confirmed by letter in the period from 3 July to 10 July.  Tendered was a completion certificate in that regard.

16As is obvious, and no doubt impacted upon His Honour in the original determination, Mr Hamann has a history of significant offending brought about from the drug milieu, in which he has been living.  Also contributed by, no doubt, his upbringing.

17The High Court has said on a number of occasions that a person of indigenous background is not entitled or any better or lesser sentence in Court than any other member of this community.  However, what is clear is that to fully comprehend all of the personal factors relevant to such a person who has been brought up in such deprivation and has been subject to such violence, it would be totally inappropriate for Court not to take those matters into account, which it is clear His Honour did in R v Fuller-Cust [2002] VSCA 168.

18The difficulty that I faced, and which I sought assistance from both counsel, is that while it is totally unfortunate in the Court's view that suspended sentences have been eliminated by Parliament, the provisions have actually been removed from the Sentencing Act 1991 (Vic). Firstly, s.83AB of the Sentencing Act is the source of these contravention proceedings and provides for an imposition of a sentence for that matter of up to three months' imprisonment. But importantly, in regard to the suspended period of imprisonment of 18 months less 151 days, the provisions of s.83AR of the Sentencing Act apply.

19Those sections, in particular, s.83AR(2) of the Sentencing Act, that despite anything to the contrary in s.83AR(1), if the Court finds the offender guilty, and here there was a plea of guilty as mentioned, it must exercise the power referred to in s.83AR(1)(a) of the Sentencing Act, unless it is of the opinion that it would be unjust to do so because exceptional circumstances have arisen since the order.

20The provision in s.83AR(1)(a) of the Sentencing Act is that the full sentence must be restored and the offender must serve it.  The ascertainment of what is exceptional circumstances in any particular matter obviously depends on the individual case in each instance.  The particular authorities that are relevant are firstly R v Steggall [2005] VSCA 278, which was a sentence of mine that went across the road on appeal when an exceptional circumstances submission was rejected by me and a full sentence was imposed.

21Subsequent in R v Ioannou [2007] VSCA 277 the Court further considered the meaning and in particular considered the pronouncement as to that meaning made in Steggall. At paragraph 17, Redlich JA said, after having referred to the particular definition, Hedigan J, who had to interpret the term, exceptional circumstances in regard to the then Magistrates' Court Act 1989 (Vic):

"It is, I think, apparent from these extracts and from the clear legislative intent implied in the use of the term exceptional, that the circumstances which justify the departure from the strong expectation that an individual has been permitted to remain in the community under such an order and has breached it by the commission of further criminal offences, will have the sentence restored.  The circumstances must be clearly unusual or quite special or distinctly out of the ordinary.  As these expressions indicate, the circumstances cannot fall within the range of normally, anticipated consequences, behaviours or extendencies."

22Talking of Steggall, Redlich JA said:

"Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable expectation or contemplation."

23It was because of that definition that I asked both counsel, and indeed expressed at the last hearing, my concern as to whether the facts being put, amounted to exceptional circumstances. The matters put in totality are as follows, and I set out at paragraph 17 of the submission of Ms Clark.

24

Firstly, the issue of stabilisation of mental health.  Secondly, the compliance with the Community Corrections Order.  The points in regard to that are the participation in drug counselling, the regular attendance for supervision with a case manager, the appearance at a number of judicial monitoring hearings, the engagement with Uncle Ronnie Biggs for support and the fact that certainly since

December 2013, there has been no further offending.

25Thirdly, the issue of housing, which at the moment, is secure.  Mr Hamann has engaged with the housing workers and if gaoled for more than three months, such housing would be terminated.  He has participated in the Family Drug Treatment Court programme and I have referred to that.  He is making through the Family Court, regular contact with the children and taking steps to effect reunification.

26Fourthly, Mr Hamann is taking steps to rehabilitate, insofar as to his substance dependency is concerned and though it is not directly relevant to the question of exceptional circumstances, Ms Clark threw in the question of delay, she referred to the comments of Hampel JA in R v Snip [2000] VSCA 205, where on the particular circumstances of that case, His Honour declined to restore a suspended sentence where that had been significant delay between the breach offending and the breach proceedings. I take such into account.

27As I asked counsel rhetorically, can there be exceptional circumstances where a person is simply conducting himself in the manner, which is expected of all members of the community?  Having given consideration to that rhetorical question and having considered all of the matters put by Ms Clark, I think in the end, the answer is, provided to a Court, from a very fundamental principle of sentencing, being that each case must be considered on its own facts. The clear fact in this case, is that perhaps and I raise my caution about that, because the psychologist himself and the monitoring authorities reports show guarded optimism.

28But perhaps for the first time, as submitted by Ms Clark, Mr Hamann has got himself into a position where he may be able to effect and change his life to a position of law abiding.  He has motivation to do so.

29If Mr Hamann wants to see his children on a regular basis, he must do so and must rid himself of substance abuse.  That obviously relates to his partner and the relationship with his partner as well.  Mr Hamann has been around long enough and knows the drug milieu and circumstances of being addicted far better than the Court.  He knows how hard it is to rid himself of it and hopefully he is not naïve about it.

30However, if he is to maintain a law abiding life, for the first time in his life. It would appear there is a level of stability, given his age, and much motivation for him to reform. I find in the particular circumstances of this case that I should accept the submission.

31However, as I indicated, the criminality is such that is of the breach and given the seriousness of the original offending such, that a breach of this type means that I would not make any order in the terms as set out in s.83AR of the Sentencing Act, that is, make no order as to the suspended sentence.

32I am prepared, however, not to restore the sentence or restore part of the sentence, but having been specifically advised by Ms Clark that she has spoken to Mr Hamann about such course, under s.83AR of the Sentencing Act, to extend the period of the suspended sentence for a further 12 months from today's date.

33Such will coincide with the current suspended sentence, which does not expire until December of this year.  So in effect, Mr Hamann must reform his lifestyle, overcome his addictions and not further offend in regard to both sentences.

34I have made it clear in the terms and the reason for going through these circumstances in some detail, is that Mr Hamann that is it.  Do you understand?

35OFFENDER:  Yes.

36HIS HONOUR:  You come back to me and you do not even need counsel.  All right?  You know what will happen.  I am prepared, in the circumstances of this case, because you have done so well and the Court is prepared to give you another chance, but if another breach happens in the next 12 months and criminal behaviour or indeed, breach of the conditions and you come back in front of me, then you will not need the services of Ms Clark, because you know the order.  Yes, Mr Prosecutor, any other matters?

37MR PLUMMER:  No, Your Honour.  Just with regards to the breach offence, just approve ‑ ‑ ‑

38HIS HONOUR:  Sorry, convicted and discharged.

39MR PLUMMER:  Yes, Your Honour.

40HIS HONOUR:  I do not think there is any alternative.  It would hardly be in keeping with the order if I did anything else, would it not?

41COUNSEL:  Yes, Your Honour.

42HIS HONOUR: So formally, Mr Hamann, you will be convicted of the breach offence to which you pleaded guilty. On that matter, you will be convicted and discharged. In regard to the suspended sentence, I will impose the order that I set out pursuant to s.83AR(1)(c) of the Sentencing Act as it then was, to extend the period of the suspended sentence for a period of 12 months from this date.

43COUNSEL:  As Your Honour pleases.

44HIS HONOUR:  Yes, well, good luck, all right?

45OFFENDER:  Thank you, Your Honour.

46HIS HONOUR:  All right.  Yes, Mr Tipstaff.  Somewhat unusual in a matter like this, but I order that a transcript of that be recorded and placed on the file.  I should state that the reasons set out in the transcript will be the reasons for finding exceptional circumstances.

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