Director of Public Prosecutions v Hammerstein

[2016] VCC 252

Pages 1 - 6   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Not Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02150

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN HAMMERSTEIN

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JUDGE:	HIS HONOUR JUDGE TAFT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2016
DATE OF SENTENCE:	9 March 2016
CASE MAY BE CITED AS:	DPP v Hammerstein
MEDIUM NEUTRAL CITATION:	[2016] VCC 252

REASONS FOR SENTENCE
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Subject:

Catchwords:              Attempt to pervert the course of justice – short lived and unsophisticated attempt to secure untruthful evidence from friend - uplifted driving offences -young offender 

Legislation Cited:
Cases Cited:
Sentence:           Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused	Mr T. Fitzpatrick

HIS HONOUR:

1Dylan Hammerstein, at the age of 20 you come before this court having pleaded guilty to one charge of attempting to pervert the course of justice, and three uplifted summary offences.  You have also admitted a criminal record which is not greatly relevant to the primary offence before this Court.

2The prosecution opening detailing your offending has been tendered as Exhibit ‘A’.  I will confine my remarks to a summary. 

3On 29 June 2014, when you were 18, you were driving at great speed along the Eastern Freeway towards Bourke Road in an easterly direction.  At about 9.30 am you approached a vehicle driven by Roger Dymke, which was in the third lane from the left.  You failed to slow down and drove your car directly into the rear of Mr Dymke's car.  Mr Dymke's car spun out of control, became airborne, left the roadway and rolled down the embankment to the side of the road.  His vehicle came to rest at the bottom of the embankment, resting on its driver's side against a tree and fence.  I have seen photos of
Mr Dymke's car.  In my view, it was a minor miracle that he was not killed or seriously maimed.

4Police located a prohibited weapon, being a throwing star, in your car, which was also damaged in the collision. That founds the uplifted summary offence of possession of a prohibited weapon. 

5Witnesses observed you driving.  One witness noted that you were travelling much faster than the speed she was travelling.  She saw that you were swerving through traffic and driving closely behind vehicles before overtaking them.  Another witness estimated that you were travelling at approximately
140 km/h when you passed him.

6The manner in which you drove is the basis for the uplifted summary offence of driving in a manner dangerous.  In my view, you are most fortunate indeed to be pleading to that offence rather than far more serious offences.

7Following the collision, you undertook a preliminary breath test, which was negative.  However, you refused to undertake a drug impairment test, and that is the basis for a further uplifted summary charge. 

8When interviewed by police, you made no comment.

9Some 11 months later, and approximately two weeks before a mention hearing in the Magistrates' Court in respect of the summary offences which you were facing, you sent a series of text messages to a friend asking him to provide false information in relation to the crash on 29 June 2014.  You ask the friend to write a letter and stated that you needed help when you went to court so that you did not lose your licence.  Fortunately, your friend declined to assist.  That constitutes the basis for the charge of attempting to pervert the course of justice.

10A victim impact statement has been provided.  The victim of the collision, Mr Dymke, states that his car was a total write-off, that he was unable to work for an extended period, and has suffered very considerable financial loss. 
Mr Dymke states that he "was very sore after the collision, suffered from a painful right wrist, a swollen stomach, and stiffness."  Mr Dymke indicates that he was traumatised by what happened, that he remains jumpy about young, aggressive drivers, and has retreated from many activities over the last
12 months.  You are responsible for that situation.

11It is necessary to assess the objective gravity of the charge of attempt to pervert the course of justice.  In my view, and it is not in issue, your conduct is very much at the lower end of that offence.  Your attempt to introduce falsified evidence before a court was short-lived, it was unsophisticated, and most fortunately for you, you were rebuffed by the person whose assistance you sought. 

12I turn to your personal circumstances.  You are now 20.  You were 18 at the time you drove so dangerously.  You have a criminal history, and other matters have been detailed to this Court.  The criminal history is limited to a drug matter, when on 10 October 2014, you were fined without conviction for trafficking GHB, for possession of a prohibited weapon, and for dealing with property suspected of being the proceeds of crime. Although that history is limited, some alarm bells are triggered.  I am informed that prior to your driving on this occasion, you had no driving priors. 

13A constellation of factors have been relied upon by your counsel to support the proposition that you should be assessed and placed on a community correction order.  Those factors include the entry of pleas of guilty, which are an acknowledgement by you of your wrongdoing; the very high level of support you enjoy from your family, who have been present in numbers today throughout this proceeding; your good work record; and your having undertaken a drug driver education program. 

14I take particular note of your work history and work ethic.  After completing year 12, you have worked as a dogman in your father's business, and you are now undertaking a plumbing apprenticeship.  In my view, young men who work, and who are prepared to work hard, have significantly greater prospects for rehabilitation than those who are work-shy, who are underemployed, or unemployed. 

15A psychological report has been tendered which expresses concerns that you may have ADHD.  The report indicates some difficulty with attention span, impulse control and hyperactivity.

16Weighing most significantly upon this Court is your youth.  You are a young offender, and whenever possible, any sentencing disposition must be directed towards improving your prospects of rehabilitation.  Your counsel submitted that you had excellent prospects of rehabilitation. In my view, that is an overstatement, but I accept that on the information before this Court, they are good.

17I have had you assessed for a Community Correction Order, and you have been found to be suitable. 

18On each of the charges of attempting to pervert the course of justice, driving in a manner dangerous and refusing a drug impairment test, you are convicted and placed on a Community Correction Order for 15 months.

19You will be required to perform 150 hours of unpaid community work during the first 12 months of that order.  You will be subject to supervision for the first six months of that order. 

20You are to be assessed and treated in respect of your drug use and in respect of your mental health.  Any hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

21On the charge of driving in a manner dangerous, you are also fined $750.  All driver licences are cancelled and you are disqualified from obtaining a licence for 12 months in respect of that offence.

22On the charge of refusing a drug test, all driver licences are cancelled, and you are disqualified from obtaining a licence for 24 months.

23On the charge of possession of a prohibited weapon, you are convicted and fined $250.  Be seated, please.

24I will have that order prepared, does anything arise from those remarks?

25MR HUTTON:  No, Your Honour.

26MR FITZPATRICK:  No, thank you.

27HIS HONOUR:  I will have my associate show each of you the proposed order.  I want you to impress upon your client, Mr Fitzpatrick, that if he fails to comply with the order, he will come back before me and he cannot expect to be treated so leniently.  He has been given a chance, he is undertaking an apprenticeship, he can set himself up for life.  If he fails the chance that has been offered, he will be in considerable difficulty.

28MR FITZPATRICK:  Yes, Your Honour, I certainly will.

29HIS HONOUR:  If Mr Hammerstein consents to the making of the order, he can sign it.

30MR FITZPATRICK:  Yes, Your Honour.

31HIS HONOUR:  Good.  Do you want a stay in respect of the financial penalties?

32MR FITZPATRICK:  I am instructed that it can be paid within the normal stay of a month.

33HIS HONOUR:  Yes, thank you, anything else?

34MR HUTTON:  No, Your Honour.

35HIS HONOUR:  Can I thank you both for your assistance?

36COUNSEL:  Thanks, Your Honour.

37HIS HONOUR:  In particular, I thank Mr Hammerstein's family, I take your presence very seriously.  Tomorrow morning, please.

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