Director of Public Prosecutions v Hamden

[2016] VCC 256

Pages 1 - 8   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-01187

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN HAMDEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	10 March 2016
CASE MAY BE CITED AS:	DPP v Hamden
MEDIUM NEUTRAL CITATION:	[2016] VCC 256

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan
For the Offender	Mr K. McDonald

HIS HONOUR: 

1Dean Andrew Hamden, you have pleaded guilty to one charge of threat to kill, one charge of false imprisonment, one charge of assisting an offender and one charge of common assault.  Those crimes carry maximum penalties of ten years, ten years, five years and five years respectively.

2You pleaded guilty at a relatively late date, but there was a delay in the order of some three years.  You have ultimately pleaded to a settled indictment and I give you the benefit of that.  Your plea of guilty in this situation has a very strong utilitarian effect.  It would have been a difficult trial to run and you have relieved a number of people of the obligation and trauma of giving evidence.

3In so far as remorse is concerned that is somewhat problematic, but in the circumstances of all this, perhaps understandable.  As I say, I take the delay into account without attributing it to anybody.  You do have a criminal history where you have been given suspended sentences in the past.  You do have prior convictions for violence, but the last of those was now some seven years or so ago.  Most of your priors would appear to have been drug related.

4In so far as this matter is concerned there was a co-accused sentenced to a community corrections order with work hours.  So far as that is concerned it does limit the sentence that I can impose, but I make it clear that that co-accused attracted the operation of Verdins and gave an undertaking to the Crown to give evidence against you.  It is in those circumstances where she clearly must have received a very significant discount and in all probability saved her from active imprisonment.

5The circumstances of the offending are that at the time of this offending you were around about 37 years of age and are therefore now around about 40 on the material before me.  You were living with your then partner and two children.  One of those children has subsequently passed on and I understand that that has been of great distress to you.

6But in any event, a Mr James Morrison had been staying at the house sometime earlier and he was aged around 23 at the time of this offending.  He has been described as suffering from cerebral palsy as a child and he has intellectual difficulties.  He has an inability to show any emotion or sympathy and apparently was easily led.  As I have indicated, he had been a friend of your family, and indeed been in a relationship with your sister.

7It was in the course of that and in the terms of Mr Morrison apparently having a prior conviction of a sexual nature that you became of the belief that he had sexually interfered with your then, as I understand it, three year old son.  Those charges which were laid in respect of other people were not proceeded with, and I have to work on the basis that they were not true.

8However you did have a basis, albeit a tenuous one, for the belief that you held.  In any event, in early August of 2012 you rang Mr Morrison and said, "You're dead, you paedophile cunt.  I'll hunt you down tonight."  That gives rise to Charge 1, threat to kill.

9A short time later you confronted Mr Morrison, who was buying cigarettes at the Morwell Coles.  You told him to get into your car and you took him to your home address where you made him write several notes detailing how he had molested your child.  Ms Reynolds was present when you brought
Mr Morrison - that is the co-accused - was present when you brought Mr Morrison to the house.

10You told Ms Reynolds that you had caught Mr Morrison molesting their son.  You then asked Morrison in her presence several times whether he had molested your son and ultimately he said he did.  He was then told to make written admissions of having sexually assaulted other children.

11One of your children, Jake, was present during this period of time and became emotionally distressed and struck Mr Morrison.  A Mr Newton arrived at the premises and asked, "What are you doing here?" and struck Mr Morrison to the jaw.  He has been dealt with in the Magistrates' Court and it is of no real significance to me.

12Shortly after the assaults you left the premises with the children and you left Ms Reynolds alone with Mr Morrison.  She then - and I accept that you were not party to this particular crime, that was the crime that you assisted her to avoid detection for - she told Mr Morrison, "I'm going to degrade you like you degraded all those children whose life you trashed."

13She made him lower his trousers and then got a knife and commenced to slash the back of his legs.  A short time after leaving Ms Reynolds with him you went to the home of a friend and told her that you had caught Mr Morrison about to molest your son.  That friend then drove to the house, where she observed Mr Morrison standing in the lounge with his back to the kitchen, he had his hands on a coffee table, standing and bending over the table.

14His pants were down to his ankles and he had lots of cuts across the backs of his legs and he was bleeding.  That person, Ms Todd, who I understand is a relative of yours, heard James Morrison say that he needed help for what he had done, and she saw Ms Reynolds cutting Mr Morrison with a knife and causing wounds to his upper legs and buttocks.

15She said that in response to this Mr Morrison did not move or make a sound.  Ms Todd departed - about ten minutes after she arrived at the premises you came home.  At least to your credit you told Ms Reynolds to stop what she was doing and told Morrison to pull his pants up.  You then told Reynolds that you were going to hand over Morrison to the police after the wounds had healed.

16You told him to go to the laundry where he remained overnight leaving blood staining there.  You obtained a pair of scissors and cut the jeans off, which you then put in a bin.  Sometime later that evening you apparently approached Ms Reynolds and said, "I think he's about to die."

17She then went to Morrison, trying to help him.  You then apparently said, "Should we just do the job?  Should I just knock him?"  Whether that is true or not I have got no idea.  In any event, the bloodied clothes were observed by Ms Reynolds the following day in a plastic bag at the house and she said that she heard you say the clothes had to be taken away.  Mr Morrison was coerced to clean up the laundry and on 9 August, while at Mr Morrison's flat, you told him to tell police, when they took him in, a false explanation for his injuries.  That is you told him to say that some Kooris had attacked him.

18You were aware, I have no doubt, that Jessica Reynolds had intentionally caused injury it says here, but I would have thought serious injury, but that is another matter, to Mr Morrison and that took a course of conduct after that assault with the purpose of impeding her apprehension.  That is Charge 3, assisting an offender.

19In the morning following the assault there were a number of visitors to the house and Mr Morrison was taunted by all of them.  You and Mr Hall urinated into a beer stein.  You told Mr Morrison to drink it or you would kill him, and he drank it.  That gives rise to Charge 4, of common assault.

20He was taken - that is Morrison - to the police station and was charged.  He spent 79 days in custody before some of these people, as I understand it, who he was supposed to have molested were spoken to and said it was not true.

21Mr Morrison ultimately made a VARE statement to the police because of his intellectual disability I assume, and said that before being cut by Ms Reynolds you had forced him into the boot of the car and taken him to an unknown location in the bush.  You had spoken there about killing him before leaving him there.  He had to walk for two hours to get to his home.  That gives rise to what was Charge 2 of false imprisonment.

22When you were arrested you admitted that you had assaulted Morrison and made him drink urine, but denied everything else.  The offending is clearly serious.  You are dealing with an intellectually deficient person with all sorts of problems.  This offending was a part of a course of conduct where he was totally degraded over a period of a couple of days.

23You were fully aware of what Reynolds had done to him, and yet you tried to force him to tell the police that the injuries sustained, and significant injuries by all accounts, were not caused by her.  In this situation they are threats to kill which really were taken seriously.  You endeavoured to avoid being charged with what I would have thought is a very serious assault, but you thought differently about that.

24The common assault of forcing somebody to drink urine under threat of being killed is nothing short of disgusting, Mr Hamden, nothing short of it.  In the end the offending causes the application of general and specific deterrence, as well as enunciation and appropriate punishment.  Taken overall it is my view that no other sentence other than an active custodial one would be even approaching appropriate.

25Accordingly you will go to gaol for all of this.  You are not being sentenced for the 79 days that Mr Morrison did or anything along those lines, and discussion with counsel makes it clear that that is not the case.  The threats to kill, as I have indicated, are very real, and I have no doubt were believed.

26Assisting an offender avoid apprehension is always a serious offence and I have said what I think about that common assault.  It then became a question of what was to occur subsequent to you having had undergone a gaol sentence.  In this particular situation I am well aware of the principles in Boulton and all those matters.  I can see that because of your physical condition you would be unable to perform work hours and I can see no point in gaoling you and then giving you a CCO which would have no punitive or punishment aspects involved in it.

27This offending does not involve drugs and it does not involve alcohol, and accordingly I do not see what programs would be of assistance.  In those circumstances I think the appropriate sentence is to be one with a gaol term, and an allowance for a full parole to be granted.

28Tendered on your behalf was a deal of material relating to your physical condition and your physical health, and I take that into account.  Also the Crown have tendered a victim impact statement from Mr Morrison and we will have to be careful of that because that victim impact statement seems to relate primarily to the offending which Reynolds committed against you.  But I do take into account in terms of the fear that that man suffered from.

29Your counsel provided very helpful submissions and outlined the history of your family and the history of yourself.  You had a number of partners.  You have a number of children.  You received very significant injuries back in 2011 in a car accident.  In the past you have clearly had problems with drugs.

30You were put in care at a very early age and have had a very difficult existence since.  You have been diagnosed by a GP, and indeed a neuropsychologist as I understand it, with having Arnold-Chiari syndrome, which apparently affects the brain.  I accept that that has caused you difficulty, that it causes headaches and you are on powerful analgesics in relation to it.  However it could not be said in this situation that it could not be treated in gaol and accordingly the principles involved in Verdins do not come into effect.

31You clearly are not a good historian.  I accept what your counsel tells me about that.  You left school at a relatively early age and had learning difficulties.  You have had various jobs since you left school.  At the present time you are in a relationship with a young lady who is some four months pregnant.

32I take all those matters into account and I also take into account that in your particular situation, for reasons I do not really understand, an article was placed in the local newspaper which said that the Sexual Offences Squad were looking for you to talk to and actually named you.

33I concede what that really meant to say, that any objective person looking at it would assume that they wanted to interview you about sexual offending.  I accept what I am told by your counsel, that that appearing in the paper has caused you extensive grief.  You have been threatened, your children have been threatened, and you undergoing a prison sentence will do so in the knowledge that that conduct may well occur.  I take that into account on your behalf.

34The prospects of your rehabilitating are entirely up to you I think, and the risk of you re-offending is again entirely up to you.  Whilst you do have a significant criminal history at your age in your early 40s, it is not a depressing criminal history, and if you can get all this behind you and have stability in your life, I think that you could rehabilitate and could go through not offending at all.

35After a very helpful plea from your counsel if I may say so, and what appeared on the face of it to be dreadful offending now falls in at least to a context. It was within a milieu, and with your background and your concerns for your son I can understand how it occurred.  The fact of the matter is that it went on for too long and was way over the top and must carry a gaol sentence.

36Accordingly, in all the circumstances, you are sentenced to an aggregate of 16 months. I direct that nine months be served before becoming eligible for parole and there is no PSD. I say that pursuant to s.6AAA of the Sentencing Act had you fought these particular charges and been convicted by a jury I would have sentenced you to be imprisoned for a period of 27 months with a minimum term of 18 months.

37So just on these charges your plea of guilty has saved you a very significant period of time in custody.  Had you fought a trial and been convicted of greater charges the sentence imposed would have even been greater than what I have already indicated.  There is no other rules I need to make, gentlemen?

38MR HUGHAN:  No, Your Honour.

39MR McDONALD:  No, Your Honour.

40HIS HONOUR:  Thank you for that.

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