Director of Public Prosecutions v Hambilton

[2024] ACTSC 70

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Hambilton

Citation: 

[2024] ACTSC 70

Hearing Date: 

14 March 2024

Decision Date: 

21 March 2024

Before:

Hopkins AJ

Decision: 

See [64].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – theft – minor theft – burglary – childhood disadvantage – Bugmy considerations – rehabilitation – not suitable for Drug and Alcohol Treatment Order – imposition of term of imprisonment – nonparole period imposed

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 7, 80U

Criminal Code 2002 (ACT) ss 308, 309, 311, 312, 321

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Hogan v Hinch [2011] HCA; 243 CLR 506

Kelly v Ashby [2015] ACTSC 346

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Millard v The Queen [2020] ACTSC 20

O’Brien v The Queen [2015] ACTCA 47

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Hagen [2022] ACTSC 362

R v Hancock [2021] ACTSC 52

R v Henry [1999] NSWCCA 111; 46 NSWR 346

R v Pham [2015] HCA 39; 256 CLR 550

R v Toumo’ua[2017] ACTCA 9; 12 ACTLR 103

Parties: 

Director of Public Prosecutions ( Crown)

Jack Thomas Hambilton ( Offender)

Representation: 

Counsel

E Bayliss ( Crown)

N Deakes ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 298 of 2023

SCC 299 of 2023

SCC 69 of 2024

SCC 70 of 2024

HOPKINS AJ:

Introduction

1․Jack Hambilton, you are to be sentenced for offences of aggravated burglary, burglary, robbery and associated thefts and minor thefts committed between 1 June 2023 and 30 July 2023. These offences were committed shortly after you were released from prison in NSW on parole on 26 May 2023. You had relapsed into heavy substance use and committed the offences in order to pay for illicit drugs, particularly methamphetamine.

2․Because you are dependent on illicit substances and this dependency substantially contributed to your offending, and indeed your history of offending, you asked for your case to be committed to the Supreme Court for sentence so you could be assessed for a Drug and Alcohol Treatment Order (Treatment Order). If you had not made this decision, it is likely that you would have been sentenced in the Magistrates Court, having regard to the seriousness of your offending.

3․You were assessed by ACT Corrective Services and ACT Alcohol and Drug Services. You were honest with the report writers and expressed your doubts about your capacity to meet the requirements of what is a strict abstinence-based sentencing order.

4․You are yet to develop the strong motivation and commitment that is required to succeed on a Treatment Order. You were found to be unsuitable for this reason, together with concerns about your history of non-compliance with community-based orders and the absence of approved accommodation.

5․I am not required to make a decision about whether to make or decline to make a Treatment Order. That is because, through your lawyer, you have made clear that you no longer wish to be considered for such an Order as you believe it would set you up to fail. I agree with your assessment. I would have declined to make the Order. Your decision is a mature one. It demonstrates insight. Ultimately, a Treatment Order can only assist you if you have a strong desire to be abstinent.

6․You did not ask for your case to be remitted, or sent back, to the Magistrates Court: s 80U of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Instead, you have asked that I finalise the sentence in the Supreme Court.

7․For the reasons that follow, I will impose a total sentence of 22 months imprisonment, backdated to commence on 30 September 2023 and end on 29 July 2025. I will set a nonparole period of 11 months, that will end on 29 August 2024.

8․Your release on parole will likely depend on whether you can develop the motivation and commitment to address your illicit substance dependence and related criminal offending. I strongly urge you to apply for the Karralika Solaris Therapeutic Community Program, and to complete it if you are offered the opportunity. This is because you will need support to address your substance dependency. You cannot do it alone.

9․Mr Hambilton, only you can decide when the time is right to make the commitment, reach out for help and start to climb the mountain.

The offences

10․The maximum penalties for the offences you committed provide a basis for comparing your offending to the worst possible cases of offending of this type, and a “yardstick” to assess the seriousness of your offences: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

11․On 1 June 2023, you committed the offence of theft (CC 8057/2023). This has a maximum penalty of 10 years imprisonment: s 308 of the Criminal Code 2002 (ACT) (Criminal Code).

12․On 12 July 2023, you committed the offence of aggravated burglary (CAN 3039/2024) with a maximum penalty of 20 years imprisonment: Criminal Code, s 312. It is aggravated because you had an offensive weapon with you at the time of the offence. On this same day, as part of this offending, you also committed two offences of minor theft (CAN 555/2024; CAN 556/2024) each with a maximum penalty of 6 months imprisonment: Criminal Code, s 321.

13․On 28 July 2023, you committed the offence of burglary (CAN 807/2023), with a maximum penalty of 14 years imprisonment: Criminal Code, s 311. In the course of this offence, you also committed an offence of minor theft (CAN 8071/2023).

14․Finally, on 30 July 2023, you committed the offence of robbery (CAN 10838/2023). It has a maximum penalty of 14 years imprisonment: Criminal Code, s 309.

15․You were arrested on 30 July 2023. You have been remanded in custody since that day.

16․In order to sentence you today, I must consider the nature, circumstances and features of each offence to enable me to make an assessment of their objective seriousness: R v Toumo’ua[2017] ACTCA 9; 12 ACTLR 103 at [24].

Theft on 1 June 2023

17․At around 12.30 pm on Thursday 1 June 2023, you stole an electric mountain bike from Anaconda Gungahlin, valued at $2,999. Having removed a price tag and user manual from the bike, you walked it out of the store. Your offence was opportunistic and unsophisticated. There was limited pre-meditation or planning. You did not disguise yourself and you were later identified on CCTV footage.

18․At the time of this offence and of all offences that follow, you were on parole in relation to a NSW sentence. You had been granted parole on 27 May 2023, with the parole period set to expire on 26 March 2025. This aggravates your sentence: Kelly v Ashby [2015] ACTSC 346 at [61]. You reoffended four days after release and then continued to offend.

Aggravated Burglary and Minor Thefts on 12 July 2023

19․At about 11.30pm on Wednesday 12 July 2023, you entered Highball Bar on London Circuit in Canberra City. You purchased a drink. You then entered an area of the bar that was not open to the public. After checking that you were not observed, you went behind the bar, knelt down and tried to open a cash register. You used a small knife and a screwdriver. You were unsuccessful, causing damage to the register in your attempt.

20․You then entered a storeroom through an unlocked door. This was a place where staff kept their personal belongings. There you went through the belongings of staff members, stealing various items, including keys and a set of headphones valued at $300 belonging to one staff member, and a Swiss army knife and other items valued at $198.95 belonging to another staff member.

21․You left the storeroom, made another unsuccessful attempt to open the same cash register, then ran from the bar.

22․Your offending on this occasion was also opportunistic and unsophisticated. You wore a mask and used a knife and screwdriver. This indicates some limited degree of planning and premeditation. It was a commercial premises. This means that the violation and harm that you have caused is of a different nature to that which commonly results from burglaries of residential homes. The items you stole were of relatively low value, though the loss and inconvenience caused are still significant. You caused damage to the register but did not engage in vandalism. Employees were present. Though it is clear that you were seeking to avoid confrontation, confrontation was a possibility. These features are all relevant to an assessment of the seriousness of your offences: see R v Hancock [2021] ACTSC 52 at [33].

23․You were arrested on 14 July 2023. You were then granted bail on 24 July 2023. Your offending after this point is aggravated by the fact that you were subject to bail conditions. It is also an indication that you were not deterred by the risk of parole cancellation or bail revocation.

Burglary and Minor Theft on 28 July 2023

24․Shortly after 10 am on Friday 28 July 2023, you entered the Best & Less store in Phillip, ACT. Once inside, you took and put on a large jacket valued at $20 before entering the “staff only” area of the store. There you opened lockers and stole various items belonging to staff members, including bank cards, coins and a wallet. You then left the store with these items, along with the jacket you took from the store.

25․Again, your method was unsophisticated. There was limited pre-meditation or planning. You did not disguise yourself and you were later identified on CCTV footage. It was a commercial premises. However, the items you stole belonged to staff members who suffered the violation of their property and the inconvenience of having to replace bank and other cards. You did not engage in vandalism and there was no confrontation. Staff were present so confrontation was a possibility.

26․Best & Less seeks reparation for the theft of the jacket valued at $20.

Robbery on 30 July 2023

27․At about 2.45pm on Sunday 30 July 2023, you entered the Bharat Restaurant in Belconnen ACT. You asked to change some money but were told it was not possible. You left and then entered the adjoining Bharat International Spice and Sweet Centre, walking upstairs into an office from which the two businesses are managed. This was not an area open to the public.

28․Whilst inside the office, you took two bags, walked back downstairs and entered the restaurant. The bags were recognised by the owner of the business. He attempted to kick you. You tried to leave with the bags. He stood in your way. You pushed him and tried to leave the premises with one of the bags. The owner ran after you in an attempt to recover that bag. He grabbed onto the bag and brought you to a stop. You turned and punched him in the face with a closed right fist before running from the front door. The owner caught you again and grabbed the bag a second time. He attempted to punch you. You turned and again punched him in the face with a closed fist. You then let go of the bag and ran off.

29․Although this offence followed the same pattern as your previous offences, on this occasion you were confronted. Your violent response is what makes this a robbery. Here again there is limited evidence of planning and premeditation. Importantly, there is no evidence that you planned to use force. The violence you engaged in by pushing, then punching the owner of the business on two separate occasions was largely reactive and impulsive. It is, however, important to take into account the fact that the face and the head are vulnerable areas of the body and the impact of your actions.

30․The owner has provided a Victim Impact Statement to the Court. This enables the Court, and you, to understand the harm that you caused on that day. He lives with the memory of your attempt to steal property from his business and your assault upon him when he tried to stop you. Along with the pain and discomfort of a swollen eye, he now experiences anxiety, fear and a sense of vulnerability that he has not experienced before. What you did has made him feel unsafe and challenged his sense of confidence in the world.

31․Mr Hambilton, you have been harmed as a child. This harm is integrally linked to your addiction, which in turn is linked to your offending. Your offending has caused harm. Though you are not to blame for the harm that was caused to you, you must accept responsibility for the harm you have caused to others. Committing to and then working towards your rehabilitation, and healing, will be key to ensuring that you do not continue to harm others.

Plea of guilty, remorse and acceptance of responsibility

32․The timing of your pleas differed. Some followed negotiations. Regardless, it is accepted that your pleas were entered at an early opportunity. I will reduce the sentence that would otherwise have been imposed by approximately 25% to take account of your pleas. This is because, by pleading guilty, you have reduced the costs to the justice system. Importantly, you have also ensured that those who were harmed by you did not have to give evidence.

33․In your case, I also accept that your pleas of guilty are an indication of remorse and acceptance of responsibility. From what I have read, I know that you find it emotionally difficult to think about the way your offending has impacted the victims. You explained that whilst under the influence of illicit substances, when you are “chasing drugs” and committing crimes to pay for them, you “block out the victims”. But you have also said that looking back, and when not under the influence of illicit substances, you often think about how you would feel if you were in your victims’ shoes, and that “this is not nice to think about”.

Criminal history

34․You have a lengthy criminal history for such a young person. It is largely made up of dishonesty offences. There is a significant number of offences of burglary, theft and like offences. As pointed out by the prosecutor in her written submissions, this is consistent with your battle with illicit substance use. I will say more about this shortly.

35․You are not to be punished again for these offences. However, the fact that you continue to commit similar offences means that you have not been deterred by past sentences. Importantly, it also means that you have not been rehabilitated. Your pattern of offending has continued, driven by you unaddressed substance use dependency.

Subjective circumstances

36․Mr Hambilton, you are now 20 years of age. You have had experiences as a child that no child should have to face. You did not have the opportunity to feel safe and protected in your formative years. Instead, you have experienced repeated trauma. This has had a profound impact on you.

37․You were raised by both parents until their separation when you were eight. During this time, you witnessed their drug use and family violence perpetrated by your father against your mother. Your father was also violent to you.

38․From the age of 8 to 13 you were raised by your father, who was engaged in the sale and supply of illicit drugs. Your father passed away when you were 13. You missed the funeral because you were in a car accident on the way. Your mother lost control of the car she was driving you in, because she was under the influence of illicit substances.

39․Following your father’s death, you lived with your mother where your exposure to drug use continued. She did not have the capacity to care for you. You were removed from her care by child protection authorities, spending time in refuges, in foster care and then on the streets, homeless.

40․Your schooling was significantly disrupted because of the instability and dysfunction in your family life, care arrangements, drug use and behaviour. You were suspended on several occasions and ultimately exited from formal schooling part-way through year 9.

41․You started using cannabis at from as early as 10 years of age, before being introduced to methamphetamine at the age of 15. You quickly developed a dependency. By 16, you were using daily and committing offences to enable you to get the drug. The cycle of drug use and offending resulted in you [redacted]. You have said that you “start crime as soon as [you are] on ice and [you’ve] only even been off the ice when [you] are locked up.” On your assessment, the longest period that you have been out of [redacted] imprisonment in recent years is about six months [redacted].

42․Your experiences as a child are closely tied to your mental health. You have been diagnosed with depression, anxiety, attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD). It is possible that you also experience schizophrenia, though this diagnosis is unconfirmed. You have a history of complex grief, emotion dysregulation and suicide attempts. You have explained that your methamphetamine use has enabled you to concentrate, addressing an aspect of your ADHD symptoms, and to mask your experience of depression. You are currently receiving medication for some of your conditions, including for your ADHD. It is likely that your capacity to break the cycle of substance use dependency and criminal offending will be enhanced by you continuing to receive mental health treatment, medication and support.

43․You have had limited experience with counselling and rehabilitation programs. This form of support is also likely to be important in enabling you to address your substance dependency and the underlying drivers of that dependency.

44․Since the age of 15, the only support you have had has come from an older woman you refer to as your “step-mother”. You have said that she is one of the few people in your life who has genuinely cared for your wellbeing.

45․The High Court in the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] (Bugmy) has made clear that sentencing courts must give “full weight” to the impact of adverse childhood experience. This is to recognise that there are lines of force that shaped your life as a child that continue to impact you today, explaining your descent into addiction and a cycle of offending. This reduces your “moral culpability” and the weight to be given to “punishment, denunciation and general deterrence”: see also R v Hagen [2022] ACTSC 362 at [40].

46․Further, your age, maturity and circumstances at the time that you commenced drug use means that you did not have the capacity to consider the consequences of your choice in the same way as an adult: R v Henry [1999] NSWCCA 111; 46 NSWR 346 at [273] (Wood CJ), at [335]-[355] (Simpson J). For this reason, you are less morally culpable for that choice and the negative consequences that have flowed from it.

47․Mr Hambilton, this short description of your past does not do you justice. It describes some of the experiences, events and circumstances of your life that explain how you have come to be in your current situation. It does not describe how you have survived these experiences, and the strengths you have that have enabled you to survive.

48․At 20, you are a very young man. There is significant potential for your rehabilitation and healing. Your future can look very different to your past. But to get to that future you will have to draw on your strengths and supports. You will have to develop new ones. You will need clear goals and a plan that enables you to walk step by step towards those goals. One goal that you have stated is that you no longer be dependent on drugs to deal with your problems. It is now for you to find the strength and support to step towards that goal.

Current sentencing practice

49․I was directed to a number of sentences imposed on other offenders to enable me to consider current sentencing practice. These have been of assistance to me. They were all sentences imposed by the Supreme Court. They were largely for more serious examples of the offences you committed. Less serious examples are more often finalised in the Magistrates Court.

50․Comparable sentences illustrate, but do not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53].

51․I have reviewed statistics from the ACT Sentencing Database relating to sentences imposed for the offences of aggravated burglary, burglary, robbery and theft in the Magistrates Court. Statistics are of limited assistance in the sentencing process: Millard v The Queen [2020] ACTSC 20 at [29]-[30]. This is because a sentence outcome says nothing about the particular circumstances of the offence or the offender. That said, statistics are still of value in understanding the broad sweep of sentencing practice within a jurisdiction.

52․The Sentencing Database indicates that for offences of aggravated burglary, burglary, robbery and theft, for which a term of imprisonment has been imposed in the Magistrates Court, the terms range from 1 month to 24 months. The midpoint for both aggravated burglary and burglary is 12 months. The midpoint for robbery is 7 months, whilst the midpoint for theft is 5 months.

Sentencing purposes and consideration

53․No sentence other than imprisonment is appropriate having regard to the seriousness of your offending.

54․In sentencing you today, I am required to consider the purposes of sentencing set out in s 7 of the Sentencing Act.

55․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability, judged by reference to your experiences of childhood disadvantage which is linked to your descent into addiction to illicit substances: Bugmy at [44].

56․Your sentence must deter you and others from offending. However, the experiences you faced as a child and young person reduce the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, the disadvantages you faced and their impact on you makes it less appropriate to use you as an example to deter others from committing offences.

57․The sentence must recognise the harm you caused and denounce the conduct you engaged in. It is important that you understand that I am not denouncing you as a person. You are responsible for your offending, but it does not define you.

58․Importantly, the sentence must be designed to promote your rehabilitation and protect the community. Though these purposes can conflict, ultimately, as stated by French CJ in Hogan v Hinch [2011] HCA; 243 CLR 506 at [32] “Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. In your case, rehabilitation depends upon you being able to address your addiction and the underlying causes of that addiction. Your current lack of motivation and commitment increases the weight to be given to protecting the community. And yet, you are still very young. There is real hope that you can develop the strength to face the challenges of your past experience and find a brighter future.

Totality

59․The totality principle requires me impose a sentence for each offence that is appropriate and then consider the extent to which these sentences should be concurrent or accumulated to reach a total sentence. It is then necessary for me to step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the total sentence is just and appropriate for all the offences: O’Brien v The Queen [2015] ACTCA 47 at [26].

60․In considering the overall criminality of your offending, it is important to take into account the fact that the offences were committed during a relatively short period when you were heavily in the grip of addiction, which had its genesis in your disadvantaged childhood experience.

61․Further, totality requires that the overall sentence “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 341.

62․In this context, it is important to consider the risk of further institutionalisation and the long-term harm this will do to you and to the community.

Time in custody

63․You have been in custody solely for these offences since 30 September 2023. I will backdate your sentence to that date.

Restitution

1. Finally, I have been asked to make a restitution order in the sum of $20 to Best & Less for the cost of the jacket you stole. Although this is a small sum of money, you will have limited if any capacity to pay or make arrangements to pay because you will be in custody for some time. I consider the benefits of ordering you to pay the sum do not warrant the order in circumstances where you are being held to account through the imposition of a significant period of imprisonment.

Orders

64․For those reasons I will make the following orders:

(1)Jack Thomas Hambilton be convicted of robbery (CAN 10838/2023) and sentenced to 12 months imprisonment, reduced from 16 months on account of his plea of guilty, commencing 30 September 2023 and ending on 29 September 2024.

(2)Jack Thomas Hambilton be convicted of aggravated burglary (CAN 3039/2024) and sentenced to 12 months imprisonment, reduced from 16 months on account of his plea of guilty, commencing 30 March 2024 and ending 29 March 2025.

(3)Jack Thomas Hambilton be convicted of minor theft (CAN 555/2024) and sentenced to 1 month imprisonment reduced from 6 weeks on account of his plea of guilty, commencing 30 March 2024 and ending 29 April 2024.

(4)Jack Thomas Hambilton be convicted of minor theft (CAN 556/2024) and sentenced to 1 month imprisonment reduced from 6 weeks on account of his plea of guilty, commencing 30 March 2024 and ending 29 April 2024.

(5)Jack Thomas Hambilton be convicted of burglary (CAN 8070/2023) and sentenced to 9 months imprisonment, reduced from 12 months on account of his plea of guilty, commencing 30 September 2024 and ending 29 June 2025.

(6)Jack Thomas Hambilton be convicted of minor theft (CAN 8071/2023) and sentenced to 1 month imprisonment reduced from 6 weeks on account of his plea of guilty, commencing 30 September 2024 and ending 29 October 2024.

(7)Jack Thomas Hambilton be convicted of theft (CAN 8057/2023) and sentenced to 3 months imprisonment, reduced from 4 months on account of his plea of guilty, commencing 30 April 2025 and ending 29 July 2025.

(8)The total sentence imposed is 22 months imprisonment commencing 30 September 2023 and ending on 29 July 2025.

(9)A nonparole period of 11 months is set, commencing 30 September 2023 and ending 29 August 2024.

Final Word

65․Mr Hambilton, facing and recovering from you addiction will be very difficult. So, too, will be healing from the harm caused to you as a child. You know this far better than I do. It has been your lived experience.

66․To repeat what I said at the beginning, there is a mountain to climb. You will need to commit to this climb and get support along the way. This will require you to change your behaviour in custody and look for opportunities to build your strength. I again strongly urge you to apply for the Karralika Solaris Therapeutic Community Program, and to complete it if you are offered the opportunity.

67․Remember, each step you take up the mountain will give you a better view. Each step can be a source of pride for you. Each step will make others proud. If there are steps back along the way, then you will still remember the view. With courage you will continue to climb.

68․You have the strength to do this. The view from the top will be worth it. I wish you luck.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence by his Honour Acting Justice Hopkins

Associate: J Liu

Date: