Director of Public Prosecutions v Hamilton
[2023] VCC 1021
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00849
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TARA HAMILTON |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 February 2022 |
| DATE OF SENTENCE: | 16 June 2023 |
| CASE MAY BE CITED AS: | DPP v Hamilton |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1021 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges if kidnapping, common assault, theft and summary offence of committing an indictable offence while on bail – kidnapping of victim after purchasing false drugs – low range of intellectual functioning – acquired brain injury – diagnosis of major depressive disorder and a generalised anxiety disorder – availability of mental impairment defence – reduced moral culpability – Bugmy considerations – early plea of guilty – reasonable prospects of rehabilitation – category 2 offence in Sentencing Act 1991 – delay – Verdins – Parity
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Lombardo [2022] VSCA 201; Buckley v R [2022] VSCA 138; R v Verdins (2007) 16 VR 269
Sentence: 12-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Locke | Office of Public Prosecutions |
| For the Accused | Mr J. Sutton | Slink & Keating Solicitors |
HIS HONOUR:
Introduction
1Ms Hamilton, on the charges on the indictment and the summary charge, with your consent, I propose to convict you of the charges and place you on a community correction order of 12 months' duration on the following conditions:
(a) to perform 200 hours of unpaid community work;
(b) to undertake assessment and treatment for drug abuse and dependency;
(c) to undertake assessment and treatment for mental health issues; and
(d) to be supervised;
2Any of the hours that you have satisfactorily undertaken in relation to (b) and (c) will count as hours for the purposes of the unpaid community work condition.
3You have pleaded guilty to a charge of kidnapping, a charge of assault, a charge of theft, and also pleaded guilty to the summary offence of committing an indictable offence while on bail. These offences occurred on 26 August 2020. At the time of the kidnapping and theft offences, you were on bail.
4The maximum penalties for these offences are:
(a) kidnapping – 25 years' imprisonment;
(b) theft – 10 years' imprisonment;
(c) assault – 5 years’ imprisonment; and
(d) committing an indictable offence while on bail – a fine of 30 penalty units or 3 months' imprisonment.
5Between 2021 and today this proceeding has been adjourned on 12 occasions for different reasons, including the obtaining of a report from a clinical psychologist and a neuropsychologist. During that time you have been on bail.
6Owing to the contents of the report of Dr Yamin, a neuropsychologist, a report was obtained from a forensic psychologist through Forensicare, Amanda Nielsen. Both Dr Yamin and Dr Nielsen gave oral evidence. The primary focus of their evidence was whether the defence of mental impairment was available. The ultimate position was equivocal but their evidence was useful in resolving other issues.
Circumstances
7In August 2020, Jordan Delalande was your partner. Previously, you had met Chris Ferragine through the exchange of messages on Facebook.
8On 26 July 2020, you and Mr Ferragine met near a hotel in Lilydale. You paid $250 into his bank account electronically and he gave you a substance purporting to be half a gram of methylamphetamine, only it was not methylamphetamine but kitty litter.
9Later that day, you contacted Mr Ferragine again, wanting to buy another half a gram of methylamphetamine but this time you could pay only in cash.
10At 2 pm that day, you and Mr Ferragine met at a hotel or motel. You and he spent the afternoon together. At about 5 pm, you invited Mr Ferragine and the person I will describe as 'the victim', to meet you and a girlfriend at a motel in Lilydale. Mr Ferragine and the victim arrived at the motel at 8 pm.
11You invited the two men into Room 8 of the motel. You then left the room. Blair Jordan and an unidentified male entered the room. One of them accused Mr Ferragine of ripping you off and demanded repayment of $250. Mr Ferragine denied ripping you off.
12You and Mr Delalande entered the room. You demanded the return of your money, saying the substance was not 'gear'. Mr Ferragine told you he had a friend nearby from whom he could get the money. He left his Samsung tablet behind to ensure his return. He asked the victim to come with him but you insisted he stay.
13Mr Ferragine did not return. You and the others would not let the victim leave the room and made comments about Mr Ferragine's absence. You made most of the comments. You tried ringing him but did not make contact. However, Mr Ferragine left voice messages for the victim saying he tried contacting his mother and grandmother to get the money but could not.
14You sent two Facebook messages to Mr Ferragine. In the second, you said the victim was not leaving until the money was repaid. You told the victim he was not leaving the room until the money was repaid. These are the circumstances constituting the charge of kidnapping.
15The victim persuaded you to allow him to contact his mother. For about 24 minutes, they exchanged Facebook messages where the victim requested $400 from his mother. During that period, a knife was held to his neck. The prosecution do not say who held the knife, although you punched the victim three or four times to the head.
16At one stage, you pretended to be the victim and contacted the victim's mother and demanded money.
17At 10.41 pm, one of the three men in the room spoke to Mr Ferragine and told him to get the money or the victim would get cut up.
18At about 10.45 pm, the victim's mother paid $400 into the victim's account.
19The victim was required to take off his clothes. M Delalande tried on his pants but they did not fit. He was given back his pants and T‑shirt. You took one of his jumpers. One of the rest of your group took his other jumper. Mr Delalande took his necklace, two of his rings, his baseball cap and his face mask. He was allowed to keep his brother's wedding ring. You kept his wallet and mobile phone.
20When the money arrived in the victim's account, he was allowed to put on his shoes.
21At about 11 pm, you and Mr Delalande took the victim to an ATM next to a hotel in Lilydale. You removed a bankcard from his wallet and gave it to him. He withdrew $360 from his account. He could not withdraw $400 because the account was overdrawn. He gave the cash to Mr Delalande. You and Mr Delalande then allowed the victim to leave. Mr Delalande's parting comment to the victim was:
'By the way, tell your mate he's still going to fucken get it.’
22The victim walked to a McDonald's outlet in Lilydale and at about 12.25 pm [sic] phoned his mother requesting she collect him. She did so about 20 minutes later. When he phoned his mother, he was crying and could not speak properly. After she picked him up, it took time before he made sense in what he said to his mother[1].
[1] Statement of Ms Dewar made on 27 August 2020.
23The victim has not made an impact statement.
24At 1.27 pm on 27 August 2020, you were arrested as you left the motel. Shortly afterwards, you were interviewed by police members and made certain admissions.
25Later that afternoon, you were interviewed by the police and made admissions.
26The reason I set out those details in detail is because of the different versions you have conveyed to various people. I am explaining to you what it is I have found.
Personal
27You are now 26. At the time of the offences, you were 24. Your life is characterised by abuse and deprivation.
28You were born and raised in this State. You have 7 younger siblings. Your parents were addicted to drugs and alcohol. You witnessed many physical and verbal arguments between your parents. The physical violence was so bad that on one occasion your father struck your mother with a golf club causing her to suffer seizures.
29Your parents separated when you were 11. When 9, you saw your parents' friends injecting drugs in the living room of your home. Your home was visited by many adults. You did not know who were friends or strangers and who were safe to confide in.
30Because of the way your parents behaved, and despite your youth, you ended up caring for your siblings. This caused you to miss school in Grade 4. You and your siblings often went hungry and you stole food to feed yourself and your siblings.
31When you were 12, you and your siblings were removed from your parents' care by the State. This resulted in your separation from your siblings.
32You lived with an uncle. He wanted you to go to school. You felt intellectually inadequate. You began using methylamphetamine and cannabis. You frequently ran away from your uncle's home and went to your mother because she supplied you with drugs.
33At 13 or 14, you were sexually abused by a boyfriend and by one of your brothers.
34You left school after completing Year 9. You left school because you were struggling with drugs and oppositional behaviour.
35You were living with your uncle but would regularly visit your parents where your mother supplied you with methylamphetamines. Your father thought you were using marijuana only. When he found out what your mother was doing, he assaulted her in your presence. At some stage, your father stabbed you in the back of a leg.
36You were in a relationship for 6 years. At 19, you gave birth to your son, Dane. Because of your partner's violence, you feared for your life and left with your son. You lived with your grandmother.
37In 2017, your mother died. Since then, you have had no contact with your father.
38In 2020, you formed another relationship. Your partner was a drug user. You returned to drug usage and lost the care of your son to the State. You have not seen him since.
Psychologist
39Aaron Cunningham is a psychologist. At the request of your solicitors, he interviewed you on 19 May 2022[2]. Some of what I know about your background comes from his report.
[2] Report of Dr Aaron Cunningham, dated 19 May 2022.
40Dr Cunningham diagnosed you as suffering from post‑traumatic stress disorder. The cause of the disorder lies in your childhood. As Dr Cunningham says[3]:
'…She suffered sexual and physical abuse. She has distressing recollections of these traumas. She attempts to avoid these recollections through drug abuse. She presents with negative alterations in cognition and mood in the form of feelings of worthlessness, helplessness and hopelessness. She experiences marked arousal in the form of sleep disturbance, difficulty concentrating, hypervigilance, irritability and outbursts of anger and reckless and self-destructive behaviour.'
[3] At p 3.
41In terms of your cognition, Dr Cunningham saw the disorder as impairing your thinking and reasoning skills in general problem solving. Your use of drugs would further impair those abilities.
42Dr Cunningham noted your desire to help your siblings. You were seeking to gain custody of a sister who was in secure welfare. He also noted you would like drug and alcohol counselling and undertake a parenting course.
43Finally, Dr Cunningham recommended a neuropsychological assessment to determine whether you had suffered a brain injury.
Neuropsychologist
44Following Dr Cunningham's recommendation, your solicitors arranged for you to be interviewed by a clinical neuropsychologist, Sami Yamin[4].
[4] Report dated 29 June 2022.
45Dr Yamin considered you were in a very low range of intellectual functioning with a full-scale intelligence quotient of 77. Your ability to remember and to learn was severely reduced when compared to what is expected of someone of your age. He found you had difficulty learning even simple information even though it was repeated numerous times. Moreover, you were easily overwhelmed when faced with greater amounts of information.
46With the executive functioning, Dr Yamin said you could plan simple tasks but were severely disorganised with more complex tasks requiring multiple steps. As part of your disorganisation, you paid poor attention to detail. You are poor at solving more complex problems. Your language skills are reduced. Your abilities to inhibit your actions, monitor yourself, control your impulses and give attention to more than one thing were all severely reduced.
47There is likely to be more than one cause of your intellectual functioning. Dr Yamin considered the most likely cause was neurodevelopmental in nature. He pointed to your deficiencies in memory and executive functioning as being consistent with a brain injury which, in turn, was caused by your use of alcohol and drugs during your adolescence.
48When you committed these offences, Dr Yamin considered:
(a) your intellectual functioning was in the very low range;
(b) you had significant cognitive deficits due to your mild acquired brain injury. This deficit caused Dr Yamin to say that partly you were unaware of the nature of your conduct and, partly, unaware that your conduct was wrong;
(c) your inability to make appropriate judgments and clear, rational choices, lack of inhibition, all of which made worse by your use of drugs is relevant to your moral culpability; and
(d) there is a risk imprisonment would have a significant adverse effect on your mental health. In that regard, Dr Yamin diagnosed you as suffering from recognised psychological disorders, being a major depressive disorder and a generalised anxiety disorder. Both disorders were of moderate severity.
49Dr Yamin recommended, principally, counselling from a clinical psychologist who specialises in working with people with low intellectual functioning, mood disorders and trauma.
Psychologist
50Amanda Nielsen is a forensic psychologist. She interviewed you on 11 February 2023 and reported.[5]
[5] Report of Dr Amanda Nielsen, dated 31 January 2023.
51During the interview, you discussed your offending with Dr Nielsen, along with your personal circumstances. Dr Nielsen also reviewed the report of Dr Yamin from June 2022.
52Dr Nielsen ultimately considered you did not have any psychotic illness which could have affected your ability to know the nature and quality of your actions. You were able to recall many aspects of what occurred.[6]
[6] At para [39].
53The charge of kidnapping was complicated by several issues, according to Dr Nielsen. First, you provided a version of what happened to her which differed from your police interview[7] Second, Dr Nielsen found difficulty in disentangling what you understood now about the charge of kidnapping and what you understood at the time of the offending.[8]
[7] At para [41].
[8] At para [42].
54Ultimately, Dr Nielsen concluded you understood the events of the offending and that you understood it would have been worrying and frightening for the victim.[9] Your admission to police and Dr Nielsen that this could lead to serious legal consequences also assisted Dr Nielsen in forming the opinion that the defence of mental impairment was not available to you.[10]
[9] At para [43].
[10] At para [44].
Discussion
55Section 5(1) of the Sentencing Act 1991 (the Sentencing Act) sets out the purposes for which sentences would be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender’s rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
56In practically all cases, one or more of those purposes are relevant. Your case is no different.
57Section 5(2) of the Sentencing Act sets out various factors which I must take into account where they are relevant.
58The purposes of general and specific deterrence, denunciation and the protection of the community must play an important role in my sentences.
Gravity of the offending
59The offence of kidnapping occurred over several hours. It was not as long as some examples of the offence but not as short as others. It was accompanied by two acts of physical violence: the repeated punching of the victim by you; and the holding of a knife to the victim's neck.
60There are other forms of kidnapping which are far more serious: kidnapping for ransom; for sexual offending; or revenge. Although these circumstances are nowhere near as serious as some, they left the victim when phoning his mother and later, in her car, as distressed and barely coherent. It was a terrifying experience for him.
61The seriousness of the principal offences fall between low and the mid-range.
Culpability and responsibility
62You played the central role in the kidnapping. The presence of with two others prevented the victim from escaping. It also enabled you to assault the victim.
63Your childhood was dreadful. Your experiences caused you to suffer a recognised psychological disorder in the form of a post-traumatic stress disorder. I daresay, given its longevity, successfully treating this condition would be a long and arduous process. Certainly, your moral culpability is markedly reduced. This is a Bugmy consideration.
Guilty pleas
64You indicated an intention to plead guilty at the sixth committal mention hearing. You were committed through the tendering of the brief of evidence. There was no committal hearing and no examination of any witness, especially the victim. In terms of the timing in the context of the overall process, it is an early plea.
65Your guilty pleas assist the administration of justice. By pleading guilty, there is no need for a trial. This allows other trials to have a trial earlier than would otherwise be the case. Your pleas have allowed the prosecution witnesses to avoid the ordeal of giving evidence. This would have been especially so for the victim.
66These benefits are increased while the criminal justice system is so stymied by the restrictions necessitated by the pandemic and the virus. Your counsel referred to passages from the case of Worboyes v The Queen[11]. This passage is frequently cited to and quoted by judges of this court. The final two sentences captured the state of the crisis at the time[12]:
'Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'
[11] [2021] VSCA 169
[12] At [35].
67That degree of crisis is no longer felt. However, the effects of virus persist, interrupting trials.
68Your pleas of guilty are also evidence of your remorse for your offending.
Prospects of rehabilitation
69As I said, your pleas of guilty provide some evidence of remorse. You told Dr Cunningham of your plans and you were relatively young. You spoke of a case manager to assist you, funded through the NDIS.
70As he found, you have a serious entrenched psychological disorder caused by your childhood experiences. Curiously, he did not specify any particular treatment for your disorder. Reading his report, the disorder underlies your drug taking. The other psychologist recommended treatment.
71As I pointed out at the outset, there have been 12 previous adjournments of this case between 2021 and the present. You have been on bail in that period. Overall your prospects of rehabilitation are reasonable, provided you are able to undertake the treatment offered to you.
Criminal history
72You have no previous convictions or findings of guilt in relation to criminal offences. Your previous good character requires some mitigation of the penalty for your offending. Even though you are still young, your good behaviour existed in the face of very deprived circumstances.
S5(2H)
73Kidnapping is a category 2 offence under the Sentencing Act, the effect of which is you must be sentenced to imprisonment unless an exception applies. Your counsel relies on the exception contained in s5(2H)(c)(i) and s5(2H)(e).
74The former reads, relevantly:
…at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability”.
75The latter provides:
“there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44)”.
76The application of paragraph (e) is further limited by s5(2H)(c) and s5(2I).
77They provide respectively:
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
78Recently, our Court of Appeal examined the operation of the paragraph (e) and the associated provisions in the DPP v Lombardo[13]. In applying the test created by paragraph (e), the court identified two key steps:
(a) the court must identify whether there are substantial and compelling circumstances. “Substantial and compelling” means the circumstances are weighty and forceful or powerful so as to justify not imposing a custodial sentence; and
(b) if the answer to (a) is “yes”, then the phrase “exceptional and rare” requires circumstances wholly outside the run of the mill factors typical of the relevant kind of offending: kidnapping.
[13] [2022] VSCA 201.
79As to the phase “exceptional and rare”, experience shows that some of the persons who commit kidnapping have been part of highly dysfunctional families, characterised by exposure to family violence. Unfortunately, these are not circumstances wholly outside the ordinary factors typical of the offence of armed robbery. As the Court said in Buckley v R[14]:
“The principal matters relied on by the applicant…were his youth, his significant immaturity, his difficulties during adolescence and his likely vulnerability in prison. On ordinary principles, those matters taken in combination might well constitute ‘substantial and compelling circumstances’ justifying a non-custodial order. But the sad reality of our criminal justice system is that such circumstances – whether alone or in combination – simply could not be described as ‘exceptional and rare’. On the contrary, they are all too common.
As we have said, the legislative intention could not be clearer. By adding the words ‘that are exceptional and rare’, the Parliament intended to make the test ‘almost impossible to satisfy’. The express exclusion from consideration of the offender’s prospects of rehabilitation bespeaks a deliberate rejection of well-established and well-understood principles about the vital importance – to the community – of rehabilitating young offenders”.
[14] [2022] VSCA 138 at [43].
80The court also dealt with the concept of 'exceptional and rare', in the context of that paragraph and I will not read out the passages that I have quoted in my written judgment and written sentence on that decision.
81Your mental functioning is impaired. You have an acquired brain injury, stemming from your adolescent use of drugs and alcohol and, in turn, was a product of your appalling upbringing. This has left you with cognitive deficiencies, fully described.
82These same circumstances have caused you to suffer from a recognised psychological disorder, post-traumatic stress disorder. The symptoms are described by Dr Cunningham in the passage from his report I have already quoted. Given the longevity of the disorder, it will be difficult to treat. Those deprived and difficult circumstances raise the observations of the Court in Bugmy v R[15]. Even in this court, the experiences of your life are uncommon.
[15] (2013) 249 CLR 571.
83The prosecution concedes the applicability of paragraphs (c)(i) and (e). The concession is properly made.
Delay
84As I have said now probably three times, your case has a remarkable history. It has been adjourned time and again. Some of the adjournments were your fault. Most were not. To its credit, the prosecution has sought to clarify your mental state. This proceeding has been pending for a long time. No doubt, it has caused you some difficulty.
85I am in passing unconcerned about the cases pending against you in the Magistrate' Court.
Verdins
86It is also conceded the prosecution that the principles stated by the Court in Verdins v R[16] are applicable here.
[16] (2007) 16 VR 269.
Community corrections and other assessment
87I have read the reports from Corrections Victoria and Forensicare.
Parity
88I sentenced Mr Delalande to a total effective sentence of 2 years and 11 months' imprisonment and fixed a non‑parole period of 2 years. He faced one less charge than you.
89There is little difference in your ages. Mr Delalande is a year older than you. However, there is a stark contrast between your criminal history and that of Mr Delalande. Between 3 May 2013 and 17 January 2020, he appeared in a criminal court on 9 occasions. He was found guilty or convicted of 68 charges. He was sentenced to imprisonment or detention on 3 occasions. His longest sentence was a period of detention of 16 months while his longest sentence of imprisonment was 10 months.
90On the other hand, you have no criminal history. For Mr Delalande, the sentencing purposes of specific deterrence and protecting the community from him assumed greater importance than it does with you. However, it is clear from the agreed facts that your responsibility for the principal offence sits higher than that of Mr Delalande as you were the instigator and ringleader.
91There are manifest psychological factors affecting you which were absent for Mr Delalande.
Sentence
92On the charges in the indictment and the summary charge, with your consent, I propose to convict you of the charges and place you on a community correction order for 12 months' duration with the following conditions:
(a) to perform 200 hours of unpaid community work;
(b) to undertake assessment and treatment for drug abuse and dependency;
(c) to undertake assessment and treatment for mental health issues; and
(d) to be supervised.
93Any hours satisfactorily undertaken for (b) and (c) will count as hours for the purposes of the unpaid community work order.
Pre-sentence detention
94In making this observation I note that you spent 2 days in custody before being bailed.
S 6AAA
95If you had not pleaded guilty to these charges, I would have sentenced you to a community correction order of 2 years' duration with the same conditions.
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