Director of Public Prosecutions v Hamilton

[2020] VCC 428

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-02188

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHAD HAMILTON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	15 April 2020
CASE MAY BE CITED AS:	DPP v Hamilton
MEDIUM NEUTRAL CITATION:	[2020] VCC 428

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 D. Brown	Office of Public Prosecutions
For the Accused	Mr S. Northeast	Geelong Lawyers, Barristers & Solicitors

HIS HONOUR:

1Chad Hamilton, you and the victim were in a relationship and now have a now two-year-old daughter.  You were controlling, aggressive and perpetrated ongoing family violence.  This prompted the victim to take the step of seeking an intervention order.  A magistrate was persuaded to grant the comprehensive intervention order to protect the victim and her daughter from the risks of your continued violence.  That order was made on 22 November 2018, and in a short time you comprehensively and contemptuously ignored that court order.  You were arrested and charged with the serious crimes of persistent contravention of an intervention order and stalking.

2Those matters came before the Magistrates' Court and on 19 March 2019 the magistrate imposed on you the very lenient sentence of adjourning the matter for one year on your undertaking that you would behave and engage with a psychologist and do a men's behaviour program.  This was imposed without a conviction being recorded.

3Like the original intervention order, this warning from the court had absolutely no effect on your selfish and cowardly behaviour.  You simply continued - just bear with me for a moment - to harass and frighten the victim.  Just bear with me for a moment, Mr Hamilton.  Is there any reason that you are coming into the court?  It is an open court but ‑ ‑ ‑

4(At this stage the court proceeded with another matter.)

5I will just recommence.  I apologise.  Well, someone just walked in and it is best if they do not.  Like the original intervention order, the warning from the court had absolutely no effect on your selfish and cowardly behaviour.  You simply continued to harass or confront the victim.  From three days after the Magistrates' Court hearing, that is from 22 March 2019 up until 22 May 2019, when you were finally arrested and remanded, you sent 1217 SMS messages to the victim with 184 in the last two days, the 19th to 21 May 2019. You telephoned her 104 times between 15 March 2019 and 21 May 2019, more than once a day.

6Despite the clear prohibition on you going to her home you were caught on her CCTV footage on 20 May 2019 up until 2.50 am on 21 May 2019.  You were loitering at the house and peering in the windows.  This was chilling behaviour.  You sent messages at this time which revealed your threatening, violent mindset.  This conduct amounted to the crime of stalking, your second example of the offence within weeks of each other.  However, with the victim terrified in her own home you did not stop with just loitering and stalking, sending the text messages and peering in the windows in the dead of night.  You went further and tried to break into the house with an intent to assault her.

7What was set out in the opening was that you attempted to gain entry to the house through a bedroom window.  You pushed the flywire screen out of the window and pushed the venetian blinds back and put your whole arm through the window, which was slightly open.  The victim grabbed your arm, pushed it back and wound the window shut.  She then grabbed her daughter, took the both of them into the bathroom and called 000.  It was 2.42 in the morning.  This conduct was charged as an attempted aggravated burglary, a very serious crime with a maximum term of 20 years.

8All your conduct amounted to another charge of system breach of an intervention order.  In respect of that charge I will ensure that you are not doubly punished for the same criminal conduct that I have already spoken about.

9The victim, understandably, was deeply affected by her ordeal.  In her victim impact statement, she wrote of the impact on her and her young child.  She said that she is very frightened and apprehensive about her and her child's future.  She feels unsafe in her home even though there is CCTV and an alarm fitted.  She can still see your arm through the window, trying to force it open.  She still can see and picture the flyscreen crashing down on the bed and onto the child.  She is still traumatised, the child, about this.  The victim says she is suffering from post-traumatic stress disorder, which has been diagnosed by counsel.  She has been attending for a number of months and will do so well into 2020.

10She realises her future must revolve around a peaceful, loving environment for her daughter.  At the moment she is too frightened to do many things that she would ordinarily do because she is frightened that once you are released she will run into you in the community.  She finds it difficult to operate her business to be with her family and local support.  All of this is upsetting to her.

11This sort of offending is a blight on our community.  For over a decade in these courts I have expressed in many sentences words similar to those that were endorsed by the Court of Appeal in Lim v The Queen.  What I said then was men like you, Mr Hamilton, have to understand that women are entitled to leave relationships and form new ones.  They are entitled to do so safely without cowardly men like you attempting to attack them in their homes.  The community is heartily sick of violent men like you frightening women in the sort of circumstances that occurred here.  Our highest courts have likewise emphasised the damaging nature of domestic violence and have done so since 2014 in Pasinis, in The Queen v Filiz, in Kalala v The Queen, more recently the notorious matter of Ristevski, and in February 2020 the matter of Brown.  The High Court has likewise similarly spoken of these matters in Kilic and in the indigenous context in Munda v Western Australia.

12In the DPP v Meyer the Court of Appeal spoke with a particular crime of aggravated burglary committed by a man unable or unwilling to accept the end of a relationship, and especially when a female commences a new relationship.  The court said, after considering the remarks in The Queen v Filiz, that:

'We would wish to endorse the remarks in Filiz about the particular seriousness of offending involving former domestic partners. Violence of this kind is widespread and extremely harmful'.

13The statistics about the incidents of women being killed or seriously injured by vengeful former partners are truly shocking.  Although the cases under consideration do not fall into the worst category they are symptomatic of what can fairly be described as an epidemic of domestic violence.  General deterrence is accordingly a sentencing principle of great importance in cases such as these.  Those who might in a mood of anger or frustration or bitterness contemplate this kind of violent entry into the home of a former spouse or partner must realise that if they do so they will almost certainly spend a long time in prison.

14Your example of the crimes that you have pleaded guilty to are serious examples of the particular offences of stalking and attempted aggravated burglary.  This is because of your persistence and level of menace.  All the conduct was committed in the face of a court order prohibiting that very conduct.  The attempted aggravated burglary was, as I said, an attempt, but it was a serious attempt to get into the house via a slightly opened window, which caused the victim to take steps to try and stop you.

15This crime was committed when you knew your child was present and the victim was entitled to feel safe in her home, protecting her child.  You, as the child's father, had a responsibility to ensure that the child was not traumatised.  It is the case that you did not adopt a more violent means to actually get in the house, as unfortunately happens in many cases.  This and other matters such as the absence of weapons were raised by your counsel.  By reference to the list of matters articulated by the Court of Appeal in the DPP v Meyer, the absence of aggravating features is not mitigatory.  That is obvious.  There are more serious examples of this type of offence but your case must be assessed according to its particular facts and circumstances, not some other hypothetical set of circumstances that would have made it all the more worse.

16One matter that was raised with a psychologist by you with respect to what was on your mind when you committed the attempted aggravated burglary requires only brief elaboration, as your counsel disavowed it.  I do note that it was raised again to the assessing officer who prepared a Corrections assessment report.  Your plea of guilty to the attempted aggravated burglary was with the intent to assault.  You said to the psychologist you were worried about your partner as to whether she had fainted and you wanted to ensure that she was all right.  This explanation is at odds with your plea of guilty.  I cannot and I do not accept that that was your intent at the time.  It does not fit your aggressive text messages when you intimated that you would take on her new male friend if you caught him.

17I do not take into account your recent and similar prior offending in assessing the seriousness of your crime, as to do so would be in error, as the Court of Appeal explained in Lim v The Queen, but these matters, that is your recent prior similar offending, does impact heavily on your moral culpability which is by any measure very high indeed.  This high moral culpability and the serious nature of your offending means that as a consequence significant weight must be given to denunciation, that is punishment, deterrence to you and to others and the need to protect the community, especially the victim, from you and your violent ways.  You were given a chance by the Magistrate, a very generous opportunity to mend your ways and resume lawful ways to deal with your emotional difficulties.  You did not take up that chance and understandably the community does not in these circumstances tolerate this sort of behaviour and, indeed, the community would expect the court to firmly punish anyone committing frightening domestic violence like you did in those circumstances.

18As to your personal circumstances, you are now 42.  You have had a long career in the retail motorcar trade.  You worked in your last position for 10 years up until your arrest and remand.  Your work history is to your credit.  You were raised in a law abiding, loving family and have no residual difficulties from your childhood, adolescence or schooling.  Your recent prior matter that I have spoken of is the only concerning aspect of your past character.  Up until that point you had an exemplary character.  An earlier drink driving conviction is not, in my view, relevant.

19Other than your relationship with the victim you had another significant relationship that bore four children, all now young teenagers or nearly so.  Those children are in the care of your own parents since you have been on remand.  From 2011 they have been in your care as you raised them as a single parent.  That was a heavy burden and responsibility combined with your employment at the time.  You have no problems with alcohol or drugs.  At the time of the attempted aggravated burglary you had learnt of your mother's diagnosis of lymphoma.  This caused significant emotional stress.

20Your mental health though now is stable. You told the psychologist engaged to assess you for medical, legal purposes for this plea, that you feel extremely saddened and embarrassed by your actions and are very, very sorry for the impact it has had on all involved:  'I do take full responsibility for any harm I caused during this time and regret deeply this part of my life'.  I accept that you regret where your life has led and you are determined not to break the law again.  You are intelligent and capable and should be able to re-establish yourself on release.  Your plea of guilty is important and further evidence of remorse.  Your sentence will be less because of your plea of guilty.  This is particularly so in the current circumstances where jury trials are suspended.  I adopt the comments of J. Dixon J in her sentencing remarks in
The Queen v Burke, a matter in which she raised the issue of COVID 19 crisis and the suspension of jury trials.

21You have friends who have stuck by you and there is an offer of work on your release.  This is encouraging.  In the current circumstances of the COVID 19 pandemic you are very concerned for your children in the care of your elderly parents.  Likewise, you are very concerned for your parents, who are not in robust health.  As the Court of Appeal has stated, I am authorised to take into account the stress on you in this health crisis.  It makes gaol harder.  You cannot receive visits from your children or from anyone.  This is distressing.  How your children are managing school is uncertain to you.  The sooner you are able to care for them the better things will be for your whole family.  It is in the end a matter for the prison authorities and the executive to deal with the very difficult and evolving health crisis.  I must continue to act on evidence and apply the law.  Thus, the sentencing purposes that I have mentioned of denunciation and deterrence remain central.

22Your rehabilitation is important.  At the urging of your counsel I had you assessed for a Community Corrections Order.  You were found suitable.  Your counsel had submitted that I sentence you to a Community Corrections Order that commenced immediately.  That was the primary submission.  The prosecution submitted that a Community Corrections Order in combination with imprisonment was within range and that could include a sentence of imprisonment that continued beyond the current date.

23You have been in prison on remand now for 329 days, just under 11 months.  That figure will be checked by the parties.  In my view, a sentence of that only, that length of time only, taken with a Community Corrections Order, which does add punishment and does enable rehabilitation, is nonetheless inadequate.  Indeed, a sentence of imprisonment of a length that would disqualify a Community Corrections Order in combination is well within the appropriate range, in my view.  However, there is in the current circumstances significant benefit with having you released, supervised by Corrections and subject to court oversight.  While you have shown distain for court orders in the past you have made clear that you do not want to engage with the victim in the same way again, that is unless by lawful Family Court orders.  Should you not abide by the requirements of a Community Corrections Order you should be in no doubt that I would sentence you to a very substantial term of imprisonment.  Your release and commencement on a Community Corrections Order will not be for some time but overall it is a sentence which, in my view, is merciful and hopefully you will take the opportunity to resume your lawful ways.

24In dealing with each of the charges, I impose on the charge of stalking, a sentence of six months' imprisonment.  For the crime of attempted aggravated burglary, you are sentenced to 18 months' imprisonment, and for the crime of persistent breach of the intervention order you are sentenced to four months' imprisonment.  Three months of Charge 1 is cumulative upon the attempted aggravated burglary.  That gives a total sentence of 21 months.

25I declare that you have served 329 days as part of the sentence I have just imposed.  That in effect has 10 months remaining.

26I further order that you be placed on a Community Corrections Order for two years.  The conditions of that order that apply to you is that you will be under supervision.  You have to do 150 hours of unpaid work and do programs that are directed towards your not risk of reoffending.  They will be men's behaviour programs, anger management type programs.  I will go through those in short order and if you consent to those matters then you will be on a Community Corrections Order for two years once you are released.

27I will just check whether the 329 days is exactly how much Mr Hamilton has served.  Is that correct?

28MR BROWN:  Your Honour, that is the (indistinct words).

29HIS HONOUR:  Thank you.  Mr Northeast?

30MR NORTHEAST:  Yes, (indistinct).

31HIS HONOUR:  Three hundred and twenty-nine days.  Had you pleaded not guilty to these matters and been found guilty of them I would have imposed a sentence of three years and six months with a non-parole period of two years and six months.  Are there any other orders required?

32MR BROWN:  No, Your Honour.  I think there was a mention of a disposal order but that is no longer sought.

33HIS HONOUR:  Thank you.  Mr Hamilton, ordinarily I would get a document prepared that would set out the complete Community Corrections Order and then you would be taken through that and sign it.  That is more difficult given the circumstances of where you are and the present restrictions upon the court.  What I propose to do is just speak to you, outline the conditions and receive from you your oral consent to do the Corrections Order upon release.  Do you understand?

34OFFENDER:  Yes.

35HIS HONOUR:  All right.  Now, the Community Corrections Order that I impose will run for two years.  It is a significant period of time that you will be under supervision.  Now, everyone who is on a Community Corrections Order must abide by the following conditions.  This is everyone.  The first is the most important for you to understand.  You must not commit another offence for which you could be imprisoned during the time that the Corrections Order is in existence.  That is for the two years.  Just do not commit any offence whatsoever.  Again, period, but if you do so within that two years you will come back before me, and as I have said to you, this sentence, in my view, is a merciful one in all the circumstances, and that mercy will not be repeated.  Should you come back as you did following the last Magistrates' Court sentence, then come back again, the fact of the matter is you will go back to gaol for what the courts have said, a long period of time.  Do you understand that?

36OFFENDER:  Yes, I do.

37HIS HONOUR:  Yes, all right.  The other things are really about your cooperation.  You must comply with the sentencing regulations that apply here.  They will need to take identifying photographs and the like so they know who you are.  You also have to report to and receive visits from the Office of Corrections.  You have to notify the Office of Corrections if you change your address or your job.  Just let them know what is happening.  You cannot leave Victoria without getting permission to do so.  So you have got to let them know about that, all right?

38OFFENDER:  Yes.

39HIS HONOUR:  Now, you must report to the Community Corrections office here in Geelong.  It is in Little Malop Street.  You must do that within two clear working days of you being released from prison.  Do you understand?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  All right.  Now, in addition to those mandatory conditions the following program conditions apply to you.  You must do 150 hours of unpaid community work.  So they will set that up for you and you will just get that work done.  Someone like you will just get through that in short order.  Do you understand?

42OFFENDER:  Yes, sir.

43HIS HONOUR:  Yes.  It is not voluntary.  You cannot just say, I do not want to go to work today.  You have got to go.  You must be under the supervision of the Office of Corrections.  I want that to be for the two years.  That will be initially reporting personally, I would assume, and then telephone and so on.  Do you understand?

44OFFENDER:  Yes.

45HIS HONOUR:  Just to make sure you are back on track, you have sorted out family law matters and there is no difficulty, all right, and you must undergo programs that they will set up for you to do anger management or men's behaviour programs.  You have got to do those.  Do you understand that?

46OFFENDER:  Sure.

47HIS HONOUR:  I am not going to add those in or subtract them from the number of unpaid hours.  You have just got to do them.  Do you understand that?

48OFFENDER:  Yes, sir.

49HIS HONOUR:  That is where you will learn and teach others about proper behaviour.  Now, having heard that do you consent to doing that Community Corrections Order?

50OFFENDER:  Yes, sir, absolutely.

51HIS HONOUR:  Thank you.  I will note that you gave oral consent to that and I will sign the document.  You will get a copy of that in due course when you - either from Mr Northeast while you remain at prison or when you get out, and the Corrections Order.  Do you understand?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  Thank you.  Is there anything else required?

54MR BROWN:  No, Your Honour.

55HIS HONOUR:  Mr Northeast?

56MR NORTHEAST:  No, Your Honour, that covers it.

57HIS HONOUR:  All right.  I will have these orders produced by staff who are in Melbourne.  I will sign them and they will be sent to the prison and sent to you in the ordinary ways.  I thank counsel for their considerable assistance in this matter.  Mr Hamilton, that ends the sentencing this morning.  I will leave the court.  You can remain on the link there just for a short while, while
Mr Northeast, if he wants to have anything to say to you, can have a moment to do so, and I will end the telephone link that we have to Mr Brown.  Thank you, Mr Brown.

58MR BROWN:  Yes, Your Honour, thank you.

59HIS HONOUR:  Thank you, Mr Northeast.  You can spend some time with him.

60OFFENDER:  Thank you, Your Honour.

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