Director of Public Prosecutions v Hamilton
[2021] VCC 1550
•12 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00959
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HAMILTON |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2021 | |
DATE OF SENTENCE: | 12 October 2021 | |
CASE MAY BE CITED AS: | DPP v Hamilton | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1550 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin (For Plea) | Office of Public Prosecutions |
| Ms Marks | ||
| (For Sentence) | ||
| For the Accused | Mr G. Cooper | Victoria Legal Aid |
HER HONOUR:
Summary
1On 31 July last year, police intercepted a DiDi driver who had received a parcel which contained, as testing revealed, methylamphetamine. A later review of CCTV from the collection address revealed that it was you, Daniel Hamilton, who had provided the drugs to the DiDi driver for delivery. That was not known to the police at the time.
2Four months later on 7 October 2020, you were intercepted by police in your car, at night, more than 5 kilometres from home. This was of course during a period of COVID lockdown and curfew. Your car was searched and quantities of drugs, methylamphetamine, MDMA, ketamine, 1,4‑Butanediol, cannabis and LSD were found. Also found were cash, scales, two phones and a notebook which appeared to contain drug dealing records.
3You were arrested, charged with offences related to possession of those drugs and bailed the following day. It was of course a condition of your bail that you not commit any indictable offence.
4Two weeks later, on 21 October, police having by then downloaded some of the information from your phone which showed evidence that you were involved in trafficking, executed a warrant at your home. More drugs, scales, cash and evidence of conducting an ongoing trafficking business were seized. You were re-arrested, charged with offences including trafficking and on this occasion, given the recency of the earlier arrest, charge and bail, you were remanded in custody, where you have remained ever since.
5You have now pleaded guilty before me to three charges of trafficking, one of possession of drugs and two related summary offences, one of being in possession of proceeds of crime, namely cash, related to your drug trafficking it would appear and one in relation to committing an indictable offence whilst on bail.
6The total amount of drugs found in your possession on those two days of arrest so far as Charge 1, the charge of trafficking in methylamphetamine is concerned, a total of 51.4 grams. So far as Charge 2 is concerned, that is the charge of trafficking in 1,4‑Butanediol, you were found with a total of 690.7 milligrams.
7Charge 3, trafficking, is a rolled-up charge relating to small quantities of three drugs, MDMA or ecstasy, 12.9 grams in total; LSD, less than 50 milligrams; and ketamine, 2.8 grams. It is the possession of the MDMA, LSD and ketamine that give rise to the trafficking, Charge 3.
8The period covered by the trafficking charge 1 is from 31 July, the date of the interception of the DiDi driver, the methylamphetamine parcel, and 21 October, the date of your second arrest. The date range for the other two trafficking charges are between 7 October and 21 October. That is the dates of your first and second arrest. The quantities in all three charges relate to the combination of drugs found in your possession on those two occasions.
9On the occasion of your second arrest you were also found in possession of a small quantity of cannabis stashed in two separate places in your house, a total of 4.3 grams, and that gives rise to Charge 4 of possession of a small quantity of cannabis. I am satisfied for sentencing purposes that this is possession for personal use.
10The total amount of cash found on you on the two arrests relating to the proceeds of crime charge is $12,300.
Gravity of offending
11It is clear from this brief summary that you were conducting a business of trafficking, in multiple substances. So far as the methylamphetamine is concerned, Charge 1, both by the evidence and your plea you acknowledge the trafficking was over that period from the end of July through to late October. I note the period of trafficking period for the other two charges is the 14 days referenced at each end by the dates of your arrest. Given the number of substances in that rolled-up Charge 3 of trafficking, what we have in total is a business of trafficking involving five separate substances over the period for Charges 2 and 3 of two weeks but over a period of months for Charge 1.
12In respect of all three charges, the start and end dates are fixed by reference to the dates the relevant substances were found in your possession; however, the surrounding circumstances reveal that you were in the business of trafficking in multiple substances. So although I must deal with the charges as framed, they have to be seen in the context of what was a continuing enterprise. In other words, Mr Cooper did not suggest, sensibly, that Charges 2 and 3 represent 14-day aberrations in what was otherwise an amphetamines-only trafficking enterprise. I am not able to make any findings in relation to the charges as to the content save to say that by the first date charged, 21 July, the DiDi driver was collecting a parcel in which the methylamphetamine was concealed, for delivery to the customer.
13It is not suggested that the quantities of methylamphetamine discovered on the three days, where there is evidence of actual trafficking by you, are the only amounts that you dealt in. They are, as I see, representative or indicative of the volume and duration of the trafficking enterprise for which you come to be sentenced.
14The evidence all suggests the trafficking appeared to be directed to end users, not trafficking directed at a wholesale level. Nonetheless, it was organised, sustained and with what would appear to be a sizeable turnover. That evidenced by quantities found in your possession, the records you kept, the text messages downloaded by police evidencing volume of trade and the cash in your possession, as well as things like scales and other, what we would call drug trafficking paraphernalia.
15It is also clear that you were undeterred by your first arrest and continued trafficking. The whole of the trafficking periods in Charges 2 and 3, as well as the last 14 days of the trafficking in Charge 1, occurred when you were on bail. It was of course a condition of bail, which you undertook to the court to abide by not to commit further indictable offences if you were to be released on bail. So your first arrest not only did not deter you, but your conduct thereafter showed no regard for the opportunity afforded to you by the court to be released on bail to remain in the community pending the hearing of those other charges, and obey the law. You showed that your word, your promise to not to commit any further offences as a condition of your release, was unable to be trusted. In other words it demonstrated a lack of respect for the court and the criminal process.
16For the purposes of the plea, a psychological assessment was conducted by the experienced and well-regarded psychologist Ms Pamela Matthews and a trainee psychologist under her supervision, Ms Sizenko. You told them that you were trafficking to support your own use. The volume of trade, however, leaves me satisfied this was more than trafficking to support or subsidise your own habit. Even if you were doing no more than selling enough to cover cost of your own use, that would have been no mitigator. All that would have meant was you were exploiting the addiction, desperation or folly of other uses to get them to cover the cost of your own drugs.
17It must be remembered at all times, whether you are saying you are covering the cost for yourself or you were dealing in order to make money or you are dealing in order to both cover the costs of your own and make money, that these drugs are all illegal substances and possession of and trafficking in them constitute criminal offences. Trafficking in them not only involves you in criminal activity but it feeds an illicit industry and a range of criminal activities. From crimes committed by end users to pay for their drugs, or because of the effect of the drugs on them, which impact on their families and strangers alike, to the violence and corruption associated with the activities of those further up the supply chain, trafficking in drugs creates misery. It exploits the vulnerable and it feeds the selfish self‑absorption of those who rationalise their engagement in criminal activity by buying and using drugs and use of euphemisms like 'recreational' or 'party' drugs. It puts the 'me' ahead of family, friends, community and a sense of collective responsibility we all have in a community to abide by laws which apply to all of us and are for the benefit of all of us.
18It is clear that there are some features of this that make it serious offending and it is clear that subject to considerations personal to you deterrence, both general and specific, denunciation and just punishment loom large in the sentencing mix.
19In his considered plea submissions, Mr Cooper relied on a combination of the use that you had made of your time in custody since your arrest the second time to reflect, your acceptance now of your legal and moral responsibility for your behaviour, your good character over the 44 years that you had got to before you got involved in this and what you have demonstrated since your remand, strong evidence of good family and continued family support, a good employment history, and good prospects for employment upon your release as evidence of strong prospects for rehabilitation. That is fortified by the assessment and the recommendations in the psychological report to which I will refer again later.
20Those strong prospects, Mr Cooper submitted, coupled with your conduct in addressing of the circumstances which existed at the time of offending as far as you have been able to do with the limitations on COVID custody, your early plea of guilty and the way you have used your time in custody on remand, together with the added burden of remand during COVID times, supported his submission that a sentence of imprisonment no longer than the time already spent in custody, followed by a release on a community correction order was the appropriate sentencing disposition for you.
21Mr Devlin for prosecution submitted, having regard to the significance of general deterrence in a case such as this, engaging in a business of trafficking, that a combination sentence was not within range.
22I accept that general deterrence is the primary sentencing consideration in a case of this type. But as Mr Devlin acknowledged, imprisonment for extended periods is not the only way to give proper weight to general deterrence.
23Is this then a case where, notwithstanding the seriousness of the offending, a just sentence taking into account all sentencing considerations, not just deterrence, denunciation and just punishment but also prospects for rehabilitation and protection of the community, having regard to the plea of guilty, the early stage at which it was entered, the additional hardship of imprisonment during COVID times, must be one which requires a term of imprisonment greater than that already served and combined with a community correction order? In my opinion, having regard to the matters I am about to detail, it does not. In other words, although I want you to listen carefully to what I am going to say from now on, the sentence is a term of imprisonment no longer than the time that you have already served followed by a community correction order.
24Why have I come to that view?
Personal circumstances
25You were 44 at the time of offending. You have one prior criminal matter on the record from back when you were 18, completely unrelated in nature or gravity to this offending. Save to say it means you do not come before the court as first offender, there is no relevance to this in terms of assessing your prospects of rehabilitation or the need to express specific deterrence because of that criminal history in the sentence.
26You grew up in the Frankston and Mount Eliza area with hardworking and loving parents. They separated towards the end of your schooling, but you have maintained strong and close relationships with both of them. You also continue to have a good relationship with your brother. They all provided letters of support for you in the hearing, all attended the hearing, and at least some of them are here again today.
Education and employment
27Your hard-working parents saved to send you and your brother to private schools. You remained at school until the end of Year 12, but although obviously of at least average intelligence, your behaviour during your schooling was at times disruptive or disengaged. That led to changes of school and ultimately a failure to complete the academic requirements to obtain your VCE.
28Despite that unpromising start, until shortly before this offending, you had amassed an excellent record of full, steady employment. You had been working part time since age 14 when you were still at school and, on leaving school, you began work in the printing industry. You started and completed an apprenticeship and continued to work for that same employer for six years. You spent a total of 17 years in various roles in the printing industry, rising to assume significant managerial responsibility. You held positions including that of production manager of a book binding company for an extended period, over seven years. At the time of your resignation you were responsible for 30 employees.
29You then completed a Certificate IV in Disability and for four years worked in management and leadership roles as a team leader and production manager at a logistics organisation that provided supported employment for people with disabilities. In addition to demonstrating good leadership and management skills, testimonials provided in respect of that part of your career spoke of your empathy for and rapport with the people living with disabilities who were employed in the business.
30You then had another career change and worked for approximately four years for a thermal fire protection company inspecting fire protection equipment. That work came to an end due to your escalating drug use at about the time the COVID lockdown started in March last year.
31I am going to say something more about the formidable women in your life shortly. Your mother, who gave evidence on the plea, contacted a number of your former employers and workmates, all of whom provided impressive references. They attested to your hard-working character, your consistent employment history and all expressed their faith that you could again become a productive member of society.
Relationships and Children
32You had had two significant relationships before you married at the age 30. You and your wife had two children, who are now aged five and nine. You and your wife separated after nine years of marriage. She retained primary care of the children, but you took an active role in their lives after separation until your drug use interfered. She took steps to protect the children from the risk of exposure to it and its consequences. That meant that your contact with the children diminished and ultimately dropped. The breakdown in the marriage, it appears, occurred at about 2017.
33Since your remand, your former wife has facilitated your continued contact with your children. Your love for them and your desire to be a responsible and active parent in their lives I accept are strong motivating factors for maintaining your desire to achieve a drug-free existence upon your release.
34After separation from your wife you formed in succession two relationships. The first of those also came to an end due to your drug use. The second was with a woman who, like you, was using drugs and that too came to an end, it would appear, by about the time of your remand.
35You do appear to have strong and responsible women in your life. Your mother gave evidence on the plea. It was very clear that although you have her love and support, she says you have work to do to re-establish trust with your family. Whilst you would be welcomed back, you will also be required to prove that you can be trusted. But she offers you a home if the arrangements that you have made do not work out and she offers you her unstinting support.
36Your former wife also offers her support and makes it clear that she intends to encourage your continued contact with the children. Neither your mother nor your former wife make any excuses for your drug-related behaviour. They expect better of you. It is clear that each of them believes that you are better than the 'offending you' that I have to deal with. The same can be said from the testimonial provided by your father.
37Since your remand, you have resumed the first post-separation relationship that you had, the one that you had lost due to your drug use. Your now partner, Ms Sherger, has provided a reference which also attests to her faith in your good character, apart from your drug use and criminal activities associated with it. She expresses her thanks to the police who arrested you and to the court for remanding you. She says that brought about the change to bring back the real you who she had seen, loved and valued before, and had been lost as the drug use took over. Your partner Ms Sherger is a woman with strong moral values which she applies to her own personal and professional life, to her responsibility to her own child, and that she expects to see reflected in a man she shares a life with. She expresses absolute confidence that you can return to being the person you were before drugs took hold of your life.
38These strong women are supportive of your rehabilitation and your commitment to it. I accept that you have therefore very strong family support from these women and your father and brother. They are not to be diminished, it is just this was a trio of impressive women.
39It is why I say you have got what can probably be described as a prosocial circle of family and friends to return to. You are in that sense so much more fortunate than so many other people who come before the court who do not have the supports of good, law-abiding, loving, moral, strong people who will set the right moral compass and show that they have faith that you can re-establish their trust and become again the person you were.
40You also have good prospects for re-employment on your release, as the testimonials from your former employers and work colleagues attest.
Substance issues
41Let me then come to the drug use, because that clearly is connected significantly to the offending. Your offending occurred in the context of substance abuse. You began using drugs at the age of 14, first cannabis infrequently and in social situations. That may well also explain some of your disruptive and unsettled behaviour in your latter school years. But I am told it was not until your late 20s that you began experimenting with amphetamines. It began as “recreational use” on weekends but developed to almost daily use. I hope that you now understand that it is just misleading and dangerous to refer to use of drugs as recreational.
42Your methylamphetamine use ceased when you met your wife and settled into family life. You report a period of complete abstinence for the nine years of your marriage, in those early years following the birth of the children.
43There are two key events that Mr Cooper relied on that impacted on your drug use and led you to where you come to be today: the first was the breakdown of the marriage in 2017; and the second, the dismissal from your employment in 2020 because of your drug use. It was following the loss of your job and no doubt compounded by the effects of that lockdown as we faced the first shock of it, that your drug use increased. You were by then, during that period of lockdown and leading up to the time of offending, using 1 to 1 and a half grams of methylamphetamine a day.
44You have dabbled in other drugs since your separation in 2017, cannabis, GHB and ketamine, MDMA and LSD amongst others.
45Not surprisingly, by reason of that history, you were assessed by Ms Matthews as meeting the criteria for moderate stimulant use disorder and moderate sedative use disorder in partial remission because you have been in custody.
Experience on remand
46You are a 44-year-old who had not been in trouble since a very minor offence at the age of 18. To suddenly find yourself in gaol and to be spending 350 days in detention, much of it in COVID lockdown with the lack of personal visits and periods in quarantine lockdown should be, and has been for you I accept, a salutary experience.
47I am satisfied that you have used your time in custody productively. You have completed a number of certificates and you have been working both as a billet and groundskeeper. As a remandee, the billet worker and the groundkeeper roles are optional. It shows a desire to keep yourself engaged and get back into a working habit. And whilst the number of courses available have been very limited because of COVID, it again shows that you have been prepared to find what courses are available to you and to do them in order to both keep yourself occupied and better prepare yourself for your release.
Matthews report
48In the Matthews/Sizenko report, they conclude:
'Mr Hamilton's dominant risk factors of [re-offending] are his drug use and problems with coping with stress management. His unemployment and financial difficulties resulting from such further serve as precipitating factors for both potential drug use relapse and recidivism.
'Favourable factors include his reconnection with old friends and distancing himself from acquaintances associated with drugs. He reports being determined to abstain from drugs and resume employment to resume a normal life and improve his relationship with his children. His employment prospects seem reasonable, with Mr Hamilton having several employment options due to his prior work experiences and support from his friend who had assisted him with finding work in the past.
'[Mr Hamilton's] use of illicit substances to alleviate his distress has been an exacerbation of an existing substance use issue, and it is likely over time [that] addiction rather than distress has maintained his use and his significantly increasing levels of use.
'[Although Mr Hamilton is] currently sober, [precipitated by a controlled prison environment, it says you] may benefit from some ongoing therapeutic support upon his release to minimise the possibility of a relapse.
'[He] would benefit from therapeutic engagement focusing on emotional regulation and stress management. He admitted to resorting to drugs as a form of escape from strong emotions associated with significant distressing life events, such as his marriage breakdown, job loss, and isolation.
'It is recommended that Mr Hamilton's drug use and emotional regulation problems are addressed simultaneously'.
49Although the Matthews/Sizenko report seems to centre upon your own drug use, the serious offences for which I have to sentence you are of course related to trafficking. Whilst there is clear connection between your drug use and your trafficking, it is a very significant step up the scale from using or buying to selling. Therefore whilst accepting everything that Ms Matthews says, I appreciate that her report is directed much more to your drug use problem, but I do accept that it was your escalating drug use that led to what can only be described as an absolute moral failure for somebody who otherwise had led such a good life to decide to turn to trafficking.
Rehabilitation
50Having said that, I accept that for all these reasons your prospects for rehabilitation are good, in fact very good.
51I rely on your lack of relevant prior history, that strong background of sustained employment, strong family support and a strong relationship with a strong woman with very prosocial values and attitudes. I rely too on your engagement with programs to assist your rehabilitation whilst in custody, your abstinence from drug use while in custody as evidenced by clean drug screens and your strongly expressed desire to abstain from drugs and resume employment, to resume a normal life and improve your relationship with your children.
52Your risk of reoffending has been assessed not only by Ms Matthews and Ms Sizenko but also by Corrections in the CCO assessment report as low to moderate.
Plea of guilty
53You pleaded guilty at the earliest stage of proceedings and you are entitled to have that taken into account in your favour in assessing the appropriate sentence. I accept in the circumstances that all of the benefits that can flow from an early plea of guilty apply here. I accept in the circumstances first, that it is further evidence of the remorse that you have otherwise displayed by your conduct. I accept that it has significant utilitarian value, saving the time and cost of a trial. I accept that it has particular added utilitarian value in these COVID times because of the pressure of delays on our legal system. And I also accept that it comes at a time when imprisonment is onerous, more onerous than normal or than usual because of the impact of COVID.
54I note the direction in the Court of Appeal in Worboyes[1] and related cases to increase the weight that would otherwise be given even to an early plea and all other benefits from it due to the pandemic and to give added weight to the utilitarian benefit that attaches to such a plea.
[1] Worboyes v The Queen [2021] VSCA 169.
Remorse and insight
55I accept that you show insight into your offending behaviour and acceptance of responsibility. That is evidenced in the testimonials, the letter you wrote to the court. Also in the way you have presented yourself to your family throughout your time in custody, as relayed in the evidence of your mother and the testimonials, and as relayed in what you said to Ms Matthews and Ms Sizenko. That seems to be consistent with what I have already said about you appearing to be of average intelligence, your otherwise prosocial life and attitudes and the history, the long history, of not being in trouble.
COVID
56I accept also in considering what is the appropriate sentence the added burden of the risk and threat of COVID in the prison environment. Whilst Corrections have until recently been extraordinarily successful in keeping COVID out of the prison system, it has now started to leak in. That adds significantly to the burden of imprisonment. Lockdowns, the fear of contracting the virus in that enclosed environment, the inability to make your own decisions about how to keep yourself separate and safe, as well as the suspension of personal visits, cancellation of not only face-to-face but some online programs that can assist in rehabilitation, all count here to mean that first of all, the time that you have already spent on remand counts much more heavily than time would otherwise and also counts more heavily in assessing what is the sentence from now on.
57I am satisfied that on the authorities, even with serious cases, even with cases of trafficking, that a combination sentence in the right case is open and it is for those reasons that I am satisfied this is an appropriate case for a combination sentence. I will just explain the structure of the sentence before I formally pronounce it.
58I take the view that the Charge 1 of trafficking in the methylamphetamine is the most serious charge. It is the longer duration and there were significant quantities of it, although it is not alleged to be a commercial quantity trafficking. As I said, this seems a business of trafficking. So on Charge 1, the methylamphetamine charge, I am going to impose a sentence of imprisonment in respect of that and the CCO.
59In respect of Charges 2 and 3, covering the shorter period and the smaller quantities, I am imposing a term of imprisonment only. In respect of the charge of possession of cannabis that is a possession of a small quantity. I am satisfied in the circumstances, as I said, that it was for your own use and what I propose to do in respect of that is convict and discharge. I am not going to impose a fine. That just seems to be an unnecessary burden in the circumstances and an unnecessarily onerous punishment. I believe that a conviction would be sufficient in the circumstances.
60I am also going to impose terms of imprisonment in respect of the two related summary offences and in respect of the charge of commit an indictable offence on bail I am going to make that cumulative upon the sentences on the other charges. So the trafficking charges, although I am imposing individual terms of imprisonment, they are going to run concurrently because I see it as part of the overall business of trafficking to which I have referred.
61Similarly in relation to the proceeds of crime charge, although a separate offence it is related to the trafficking and therefore whilst individual sentences are imposed, I have had regard to the principle of totality in respect of those. But on the commit an indictable offence on bail charge, cumulation in my view is warranted not only because of s16(1A) of the Sentencing Act but because you did get the chance to be released on bail, you did make a promise to the court that you would not commit offences and you just thumbed your nose and went straight back to what you had been doing. That, in my view, does warrant an additional term.
62I have been asked to make forfeiture and disposal orders which relate essentially to the drugs and drug paraphernalia and I am going to do that.
63It is a lengthy period of a CCO that I am going to impose because that reflects the seriousness of the offending but also my view that you may need long-term rehabilitation and support. Your interests and the interests of the community generally are best served by ensuring you get structured support for your own rehabilitation in the community. I also see the length of the CCO, although it does not have an unpaid community work component to it, as acting both as a specific but also a general deterrent.
64I think for anyone who looks at you in your circumstances, to have reached 44 with nothing other than one minor youthful offence and then to find yourself in gaol for a year, shamed because of the nature of the offending, shamed in the face of your family and friends who did not think you were that sort of person, that is a significant punishment. For anyone to see that fall from grace, if they cannot look at that and say, 'I don't want that to happen to me', then it is unlikely a longer term of imprisonment will. So the needs of deterrence are served not just imprisonment but also by what else has happened to you and by the fact that you are going to have a CCO as a hold over you for a considerable time.
65That I hope explains what I propose to do.
66So on all charges to which you plead guilty, Daniel Hamilton, you are convicted.
· On Charge 1 you are sentenced to be imprisoned for a period of nine months.
· On Charge 2 you are sentenced to be imprisoned for a period of six months.
· On Charge 3 you are sentenced to be imprisoned for a period of three months.
· On Charge 4 you are convicted and discharged.
·On related Summary Charge 8 of possession of proceeds of crime you are sentenced to be imprisoned for a period of three months.
·On related Summary Charge 9 of commit an indictable offence on bail you are sentenced to be imprisoned for a period of one month.
67I direct that the sentence on related summary Charge 9 of one month be served cumulatively upon the other sentences. That makes a total effective sentence of 10 months.
68I declare that the period that you have been in custody in respect of these offences, namely 357 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively. That means you have already served the full 10 months of the sentence that I impose.
69On Charge 1, in addition to the period of imprisonment of nine months, you are ordered to serve a community correction order for a period of 26 months. That is two years and two months. The conditions of that CCO are these:
·The order will last for 26 months.
·It commences today, 12 October, and it ends on 11 December 2023.
70There are mandatory terms that apply to all community correction orders. They are these:
(1)You must not commit another offence for which you could be imprisoned during the time the order is in force;
(2)You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means you must not be substance-impaired when you attend on Corrections for anything related to this order and you must submit to drug or alcohol testing as directed;
(3)You must report to and receive visits from the Secretary or delegate;
(4)You must report to the Frankston Community Correctional Services at Ground Floor, 431 Nepean Highway, Frankston within two clear working days and after the commencement of this order.
71Now, it is my understanding that as a result of this order you should be released today; the reporting must be within two clear days of today and it may well be that that reporting is by telephone rather than in person, having regard to COVID restrictions. The CCO has the telephone number of the Frankston Community Corrections Centre on it and that is the first port of call for you. Mr Cooper will no doubt will explain that and liaise with you in respect of that.
72There are special conditions that apply to this CCO:
(1)You must be under the supervision of a community corrections officer for the period of 26 months of the order;
(2)You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager; and
(3)You must undergo any mental health assessment and treatment. That may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.
73You understand the effect and conditions of this order, Mr Hamilton, and are you prepared to agree to it?
74OFFENDER: Yes, I am, Your Honour.
75HER HONOUR: All right. Given that this is a remote hearing, I take your verbal assent as sufficient for these purposes, but a copy of that CCO will be provided you and you will at some stage be required to sign it, again signifying your consent. However, the making of the order with your verbal consent is sufficient for me to be satisfied that you have consented to it and I can therefore make it. You understand what that means, don't you?
76OFFENDER: Yes, I do, Your Honour.
77HER HONOUR: Now, if you breach the order you are likely to be brought back to be dealt with for breach of the order. And if you breach it by reason of committing further offences it is likely that an application will be made for cancellation of that order and resentencing. That will mean all sentencing options are open again, although the court would have to take into account, me if I am still here and I am available, the amount of time that you have already spent, but all sentencing options would be open again if you were to be resentenced.
78I also declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a total effective term of imprisonment of three years and I would have fixed the period of two years as the time that you would have had to have served before being eligible for parole.
79I make the forfeiture and disposal orders sought in the terms in which they are sought. The prosecution has confirmed that the draft orders were in correct form and I think there was no opposition to those, Mr Cooper, is that right?
80MR COOPER: No, that's right, Your Honour.
81HER HONOUR: Are there any further orders that need to be made?
82MR COOPER: No, Your Honour.
83HER HONOUR: And is the form in which I have pronounced them correct?
84MR COOPER: Yes, Your Honour, thank you, very clear.
85HER HONOUR: I'm pretty sure that my arithmetic is right, nine months is the sentence on Charge 1, the other sentences apart from the sentence on related Summary Offence 9 are concurrent, a one-month sentence on related Summary Offence 9 cumulative. That makes a total effective sentence of 10 months.
86MR COOPER: Yes, Your Honour. Thank you.
87HER HONOUR: And the PSD calculation is correct, isn't it?
88MR COOPER: Yes, 357.
89HER HONOUR: Ms Marks, do you agree with all of that?
90MS MARKS: I do, Your Honour.
91HER HONOUR: Thank you. And no further orders required from the prosecution perspective?
92MS MARKS: No, Your Honour.
93HER HONOUR: All right. Can I thank you all for your attendance and assistance. Mr Hamilton, I dearly hope that this is the last time I will see you or any other court will see you, that you can go back to being the person you were and that you can live up to the faith that your family and friends have so strongly shown in you, that you can see this as a period that you will know is there but that you can put behind you and look forward to having a fulfilling life again in the future for yourself, your family and for those little children.
94OFFENDER: Yes, Your Honour.
95HER HONOUR: Thank you. We'll adjourn.
96MR COOPER: As Your Honour pleases.
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