Director of Public Prosecutions v Hamilton

[2015] VCC 1449

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01755
CR 14-10757
CR 14-01756

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIFFANY LEE HAMILTON
JASON WILLIAM SCHOTT
WILLIAM FRANCIS KELLEY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2015
CASE MAY BE CITED AS:	DPP v Hamilton
MEDIUM NEUTRAL CITATION:	[2015] VCC 1449

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 K. Doyle
For Offender Hamilton	Mr A. Marshall
For Offender Schott	Mr T. Hoare
For Offender Kelley	Mr D. Cash

HIS HONOUR: 

1

Jason Schott, William Francis Kelley and Tiffany Lee Hamilton, you have all pleaded guilty to a charge of aggravated burglary.  You Mr Schott and you

Mr Kelley have pleaded guilty to two charges of reckless injury and you

Ms Hamilton one.  Those crimes carry maximum penalties of 25 years and five years respectively.

2Firstly in relation to you, Ms Hamilton, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample within 28 days or in accordance with a police direction, police may use reasonable force to take it from you.

3You Mr Schott have an extensive criminal history involving antisocial behaviour.  You Mr Kelley are now 49 years of age and also have a history but much more limited and you Ms Hamilton have one prior matter for which you received a community corrections order but no conviction was imposed.  In the circumstances of this offending, as I have indicated, I will be imposing community corrections orders but they will be with conviction, which certainly for you Ms Hamilton and potentially at least for you Mr Kelley is a significant punishment in itself.

4Each of you pleaded guilty and must get the utilitarian benefit of that.  I accept also that in this overall scenario, at least at this point in time, each of you has a sufficient degree of remorse and feel somewhat shamefaced about what you did.  I take that into account as well.  There has been a delay of two years and I am not going to go into why that was so but in any sentencing situation, that has to be a factor.

5Insofar as you Mr Schott and you Mr Kelley are concerned, you were each prepared to give evidence for the Crown in this matter and I take that into account.  Each of you made statements and gave the appropriate undertaking and I would have to give a discernible discount for that.  What the benefit of that evidence may have been for the Crown in a trial might be somewhat problematical but at least the offer was made and I accept - I am not going to go into the details of what obviously played a significant part in how this matter was very sensibly, if I might say so, negotiated to settlement.  So far as the plea of guilty is concerned, obviously each of you has pleaded to a settled indictment and I regard that as setting at a reasonably early opportunity.

6The circumstances of the offending are as outlined in the agreed summary of prosecution opening. The statements of each of you, Mr Schott and Mr Kelley, may tend to wander a little from that but I will not take that into account in this proceeding.  In the early hours of the morning of 23 November 2013, the complainants, one Anne Hensler and one Tyler Merchant and their two children were at their address in Wonthaggi.  At approximately 2.30 am, the three of you arrived at that address. 

7You Ms Hamilton parked the car outside in the driveway and went to the rear door of the premises.  You Mr Schott and Mr Kelley I accept did not immediately go in but went in the area of the front door.  Mr Merchant answered the front door and you two were there asking where Ms Hensler was.  He heard, and it is somewhat debatable who heard what and when, but he heard Ms Hensler arguing with you Ms Hamilton at the rear door.  He shut the front door and rushed to the rear of the house to find that argument taking place.  I note that neither of you, it would appear, endeavoured to get through that front door. In any event, the two of you went round to the back where the argument was taking place.

8In this scenario, I accept the proposition that you Ms Hamilton were first through the door and that you were followed by the other two.  You Ms Hamilton are not charged with the assault on Mr Merchant and that is indicative of what I have just said.  The Crown would have had a difficult problem proving that you knew the other two were about to follow you in.

9But you Mr Schott and Mr Kelley entered with the intention of assaulting and it is aggravated burglary in respect of each of you.  Once inside you Ms Hamilton grabbed Ms Hensler round the neck and choked and punched her twice to the head and also the stomach.  She ended up on the floor in the laundry.  You, to your credit, in your record of interview have conceded very openly that you assaulted her and that you would be held responsible for it. What caused all this I cannot really fathom but I suspect that the situation was that you were probably so intoxicated you probably do not fully remember yourself.  I accept that everyone here, other than perhaps the victims and I do not know about that, was intoxicated.  It is simply an explanation, it certainly does not mitigate it in any way, shape or form.

10You Mr Kelley I accept went in after Ms Hamilton and grabbed Mr Merchant, you said by the shirt but certainly in the vicinity of the throat and you were initially telling him to settle down and it did not involve him.  By this time - and this is what makes the matter more serious than it might otherwise have been, the two young children had been woken by the commotion.  Mr Merchant made his way to their room and you Mr Schott and Mr Kelley followed him.  He told you both to leave and you stayed.  He then attempted to make his way to the lounge room to get his mobile and you Mr Kelley for the second time grabbed him by the shirt and certainly in the vicinity of the throat.  He was struggling to breathe.  He went to the floor at which stage you Mr Shott made verbal threats towards him and then head-butted him to the face.

11You both then punched him to his face a number of times and you Mr Schott then grabbed him by both of his ears and pulled him up from the floor.  As I indicated during the course of the plea, that is a particularly - in my view - disgraceful assault on a totally defenceless man in his own home by two people.  To pick him up by his ears in that way is just not only violent but humiliating.  Were it not for the fact that you offered to give evidence to the Crown on the rather odd way this has all come about, this may well have been a very different proposition in sentencing.

12

You then, Mr Kelley, told Schott it was time to leave and all three of you left.  Ms Hensler suffered injury and received treatment at the hospital. 

Mr Merchant sustained a tear to the right of his rear ear, bruising and swelling and that was also treated at hospital.

13

The injuries to Ms Hensler involved a swollen lip, loose teeth and pain.  You were all arrested ultimately and you, as I have said Ms Hamilton, admitted at least partially your offending.  You Mr Kelley denied the assaults and you

Mr Schott tried to give some sort of alibi.  There was clearly little remorse at the time.  As I have indicated I think there is now.

14I accept that overall this aggravated burglary was not planned, there was no weapon used and certainly not the extremes of violence that sometimes occur in these matters which puts it I think at the lower end and within - bearing in mind the other mitigating factors, within the auspices of Boulton.

15The victim impact statements I have read and certainly take those into account.  The situation here is that it is clear that the children were terrified by all of this and I accept what is in the victim impact statement that that concern and fear and unsettled view of the world assists.  I take the matters into account that are referred to there, some of which if I was to place great significance on I would require medical evidence of, but in the circumstances that we have here, I am simply not taking into account those matters of which I have concern.  Obviously it is a terrifying experience, it is a humiliating experience that people in those scenarios feel totally powerless, particularly when their children are in the house as well.  The offending in the normal course of events would call for general and specific deterrence as well as denunciation and appropriate punishment. 

16

I then look at the matters personal to each of you and firstly I look at you

Mr Schott.  Tendered on your behalf was a report from Carla Lechner, a forensic psychologist and detailed submissions were filed on your behalf.  You are getting too old to be talking about your childhood if you offend like this.  I accept that you had a very disrupted childhood, that you were the victim of the alcoholism of your stepfather, that you were - and as well as your mother I assume from all this - were assaulted on a regular basis.  You were able to get through Year 11 at school.  You do have children and indeed have grandchildren and I accept the proposition that you are devoted to those grandchildren.

17What you have in the past are a couple of sentences of imprisonment.  Recently you were sentenced to 69 days reckoned as time served for subsequent offending and a 12 month CCO which will be concurrent with the one that I am going to impose.  Much of that 69 days which was declared in the Magistrates' Court in September was served in lockdown due to the prison riots.  It is put to me by your counsel that has had a very salutary effect upon you and I accept that.

18You have been living since your release from custody in recent times with your mother and stepfather and you had at least some work.  You hope to get your licence back and intend to work as a tow truck driver.  You have had an interview.  You would now appear to have - as has probably been said before too I suspect very deeply - an insight into your alcohol issues.

19Ms Lechner confirms that you are in fact ashamed by your actions and I have been through the other aspects of all that.  In your particular case, Mr Schott, with the prior convictions that you have, I am proposing to put you on a community corrections order with the conditions that were suggested by Corrections themselves.  In your situation, because of all those circumstances and because of what I think is the extremely unsavoury nature of that assault, you will be ordered to do 400 work hours.  However I will be ordering that the time spent in programs, which will be as outlined and are well known to your counsel, will be counted against that.

20What I want to say to you Mr Schott is this, that with your priors if you breach this CCO and were brought back before me, you would go to gaol and it would be for a period of years.

21You Mr Kelley have a similar unfortunate background.  You did not have a relationship with your father and your mother was a - as you have described - prescription pill abuser.  You described - an expression I have not heard for a long time - that your father after a motor cycle accident was, "not all there".  There was abuse in the family.  At 15 you left home.  You have had relationships.  You have had children.  You went to Darwin for ten years or so, you lived up there and you said you liked it.  You have had a number of fairly dramatic, to say the least, relationships, including with a violent alcoholic and you have of more recent times, in your life at least, been living with a Ms Dipietro.  You have six children between you and what has happened is that a couple of those - well, one certainly suffers from autism, the other two seem to do well.  Ms Dipietro had a heart attack some six years ago and you were separated at the time of that heart attack.  Apparently she was very ill and suffered brain damage, now struggles with memory and the like.  You have become her carer and that is in fact how you describe your occupation.

22You are living in Coronet Bay in a caravan and are waiting for a Commission house.  You are having plans at least to try and build your own home.  Your relationship with your siblings and family is basically non-existent.  Your sister died some 12 years ago and you have not spoken to your mother since.

23You have endeavoured to work over the years, as indeed Mr Schott as I failed to indicate, does have a good work record and you said that you had good employment as a bricklayer until Ms Dipietro's sudden illness.  You also have a long history of alcohol abuse and it is quite clear that on this night that played a very significant part in all of this.

24There is no evidence or indication of intellectual impairment in your situation which bearing in mind how much you have drunk over the years is at least something.  It is quite clear that Ms Dipietro is reliant upon you for all the family needs and whilst I do not regard it as exceptional circumstances in that sense, it seems to me that from your point of view, my putting you in prison at this particular time would be a very significant act indeed.

25It is pointed out in the report of Dr Cunningham which was tendered on your behalf that you would benefit from a disposition of facilitated rehabilitation.  You have come in as low risk on the Corrections assessment and I take that into account.  He says that you do not require mental health or drug and alcohol intervention and benefit from getting your own accommodation and continuing to provide for the family, all those matters I accept.

26

As with Mr Schott, prospects of your rehabilitation are really up to you and the risk of you re-offending is again up to you.  It is low as described and for that reason in your community corrections order, as I have discussed with

Mr Black, I will not be imposing a supervision component but there will certainly be work hours.

27You were effectively aiding and abetting in a way the assault that I have taken such a dislike to but in all the circumstances you do have significantly less criminal history than Mr Schott.  You have pleaded guilty to the same charges, both at around about the same time but in your particular circumstances, the CCO will be with 300 work hours and again, as I have indicated, will be with conviction.

28You Ms Hamilton are 37 years of age and tendered on your behalf has been a very helpful outline of submissions by your counsel.  You have pleaded guilty to one less charge, that being the assault on the male in the premises and I have to take that into account.  However, when looking at all this, I do not know what the background of it was but it was but it was certainly you who led the charge, if it can be described that way, even though you did own up to that afterwards.

29You have a background of having worked and having been in a marriage with children.  It is clear from your background that the loss of your children has a result of alcoholism and depression on your part. You apparently lived with your husband, with the father of the children from the age of 15 until about 28.  It was at that time, some nine years or ten years ago, that your difficulties with alcohol and depression really became seriousness.  You have a sense of hopelessness.  You have been involved certainly with Mr Schott in what is - and I do not use this again him, but certainly looking at in your circumstances - in what is a very unhappy and physically unpleasant relationship.  I accept that since that relationship ended, there is now an intervention order.  Again I do not take that into account against Mr Schott but you have basically stopped drinking and Corrections can assist you with that.  You have formed a wider circle of friends.  You are no longer in a toxic relationship and indeed, from what I am told, are in a happy relationship living with your parents and occasionally visiting your partner.  You are complying with your medication and as Mr Marshall put in his submissions, you have put on 10 kilograms and are happier than you can remember.

30You also have a good relationship with one daughter.  You have no prior convictions as such.  Simply findings of guilt.  I think that the prospects of your rehabilitation should be very good and the risk of you re-offending should certainly not be high, and indeed as Corrections have described, is low.

31However, as I have said, you led the charge in all of this.  It is clear to me that neither of the two men would have gone in there if you had not and accordingly there has to be an element of punishment involved in this.  Your community corrections order will be with the community service of 200 hours.  Each of the CCOs will be for a period of three years.  As I indicated each will be of conviction.  It is very difficult to try and express why there are the differences between them.  I have endeavoured to do that but as I say it is serious offending and I would not want to be imposing a disposition that in any way, shape or form suggested that what went on here was anything other than serious.  Are there any other orders I have to make?  No.

32MR DOYLE:  Your Honour, 6AAA ‑ ‑ ‑

33HIS HONOUR:  No, not with a CCO.  I tell you what, they would get a fright if I did give one.  Very glad they pleaded.

34MR DOYLE:  Perhaps you should have done.

35

HIS HONOUR:  I have already told Mr Schott what is going to happen.  I would ask each of counsel to go down and please approach your various dispersed clients and get them to sign these. Those orders are made.  

Mr Schott's order is made and so is Ms Hamilton's.  All right, so there's nothing else.

36MR DOYLE:  Thank you, Your Honour.

37HIS HONOUR:  I will simply say that the three of you have been pretty luck with all of this.  If you are brought back for breaching these, it will be a totally different disposition, all right.  Thank you.

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