Director of Public Prosecutions v Hammond (a pseudonym)

[2021] VCC 1684

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE HAMMOND (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2021
DATE OF SENTENCE:	28 October 2021
CASE MAY BE CITED AS:	DPP v Hammond (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1684

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Sentence; Criminal damage; Make threat to kill; Conduct endangering serious injury; Family violence; Relevant prior offending; Offending committed in presence of children; Early plea of guilty; Plea of guilty during the currency of the COVID-19 pandemic; Application of Verdins; Reduced moral culpability; Good prospects of rehabilitation.

Legislation Cited:  Crimes Act 1958 (Cth); Family Violence Protection Act 2008 (Vic); Summary Offences Act 1966 (Vic); Bail Act 1977 (Vic)

Cases Cited:Pasinis v The Queen [2014] VSCA 97; Filiz v The Queen [2014] VSCA 212; Worboyes v The Queen 2021 VSCA 169; R v Verdins (2007) 16 VR 269; Bugmy v The Queen [2013] 249 CLR 571

Sentence:  214 days’ imprisonment; 2 year CCO

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Tatas	Office of Public Prosecutions
For the Accused	Mr N. Rolfe	Rolfe Criminal Law

HER HONOUR:

Introduction

1Jake Hammond[1], you have pleaded guilty to one charge of criminal damage contrary to s 197(1) of the Crimes Act 1958, one charge of make threat to kill contrary to s 20 of the Crimes Act 1958 and one charge of conduct endangering serious injury contrary to s 23 of the Crimes Act 1958. You have also pleaded guilty to two charges of contravention of family violence intervention order intending to cause harm or fear for safety contrary to s 120(3A) of the Family Violence Protection Act 2008.

[1] A pseudonym.

2The maximum penalties for these offences are 10 years imprisonment for criminal damage, and threat to kill, 5 years imprisonment for reckless conduct endangering serious injury, and 5 years imprisonment for contravene family violence intervention order intending harm or fear.

3In addition, you have consented to the following related summary offences being dealt with in this proceeding and have pleaded guilty to the following:

· Summary charge 11 – unlawful assault contrary to s 23 of the Summary Offences Act 1966;

· Summary charge 16 – commit an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977; and

· Summary charge 22 – contravene a family violence intervention order contrary to s 123 subsection 2 of the Family Violence Protection Act 2008.

4The maximum penalties for these summary related offences are unlawful assault: 3 months imprisonment; commit an indictable offence whilst on bail: 3 months imprisonment; and contravene a family violence intervention order: 2 years imprisonment.

Circumstances of the offending

5The summary of prosecution opening for plea dated 21 October 2021 sets out the agreed factual basis of your offending. This document was tendered and has been marked as Exhibit 1 on the plea.

6The victims of your crime were your wife, Bridget Hodgson[2], and your three children, Sasha[3] aged 12, Marley[4] aged 10, and Casey[5] aged 3. You had been in a relationship with Ms Hodgson for approximately 18 years. At the time of the offending you lived together with them at the former family home in Craigieburn. There was a final intervention order in place where you were the respondent and your wife and three children the protected persons. This order was made and served upon you on 8 February 2021, and allowed for you to live at your home address and have contact with your family provided that you were not drug or alcohol affected.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym

7The conditions on the order were that you not:

(a)   commit family violence against the protected persons;

(b)   intentionally damage any property of the protected persons;

(c)   be within 5m of the protected persons if alcohol or drug affected ;and

(d)   be within 200m of the protected persons’ home address or any other place where the protected persons work or attend school or child care if alcohol or drug affected.

8There had been a relatively recent history of family violence by you towards Ms Hodgson. In fact on 25 February 2021 you were sentenced to 7 days imprisonment and a 15-month Community Correction Order.

9On 26 February 2021 you were arrested and bailed for an unrelated offence. This is the factual basis of summary charge 16, as the current offending occurred in breach of this bail.

10On Saturday, 20 March 2021, Ms Hodgson was in the city for the evening, catching up with some friends. You were at home with the children and  phoned her mobile over 50 times. You were asking who she was with and where she was. This is the factual basis of summary charge 22.

11You continued to phone Ms Hodgson and she stopped answering your calls. Ms Hodgson stayed in the city that night and came home at approximately 9am the following morning. When she arrived home, she found you had locked her out. There was a confrontation in the street between you and Ms Hodgson and your son Sasha was present. Eventually you let Ms Hodgson inside the home.

12Once inside the home, you snatched her phone and went to another room. You went through her phone, deleting all the messages and phone calls that had occurred the night before. This also included you deleting recordings of your messages. Not long after this, you left the address.

13At approximately 4pm, you called Ms Hodgson and there was a brief discussion where you asked if she was going to report the calls to the police. She responded yes. Not long after this, you walked back into the family home and confronted her in the living room. You asked if she was recording you and then grabbed her phone. As you pulled the phone away from her, Ms Hodgson’s hand flicked and accidentally hit you in the face. You yelled at her and told your son Sasha to call the police.

14Marley and Casey also came into the living room. You then went into the bathroom and smashed Ms Hodgson’s phone against the window frame three times, causing the phone to bend and break. This is the factual basis of charge 1: criminal damage.

15You pleaded with Ms Hodgson to stay together as a family. She attempted to leave the house with the three children but you blocked the front door, begging her not to call the police. This went on for approximately 20 minutes.

16During this time, you grabbed her face with both hands and pushed her head against the wall next to the front door. This happened in front of all three children. You said to her, “I’m going to die if I go back and I will die there”. You then turned to the children and said, “Kids go outside I’m going to burn down the house with me and mum inside”. This is part of the factual basis of charge 2.

17Ms Hodgson told the children to go into their bedrooms so they would not witness the assault.

18Eventually, you and Ms Hodgson moved to the kitchen. At this time you grabbed her from behind, wrapping your arm around her neck and using your arm to strangle her, cutting off her airways. This is part of the factual basis of charges 3 and 4.

19Whilst you were doing this, you turned to your children and said, “You’re going to be orphaned”. This is part of the factual basis of charge number 2. At this time you used your spare arm to attempt to grab a large kitchen knife from a bowl in the kitchen. Your children were yelling at you to stop. Sasha and Marley intervened, struggling to stop you from getting the knife by physically grabbing you and holding you.

20You did not stop your physical tirade and grabbed Ms Hodgson by the throat and pushed her into the corner of the kitchen. You squeezed  her throat, strangling her, and she was struggling to breathe. She made numerous attempts to push you away but was not successful. This is part of the factual basis of charges 3 and 4.

21Eventually, you did stop this behaviour, as your children kept yelling at you to stop. Ms Hodgson attempted to back away from you but you shoved her to the ground and sat on her torso. You held her head against the ground with one hand while again searching for a knife. Sasha and Marley again intervened, holding you away from the knives.

22You continually yelled at Ms Hodgson, both threatening her and pleading for her to stay. Ms Hodgson crawled away from you while telling the children to run across the road to a neighbour’s house. Sasha attempted to run through the front door but you grabbed him by the back of his shirt and after a short struggle ripped his shirt from top to bottom. Sasha managed to flee the house at this point in time. This is the factual basis of charge 5 and summary charge 11.

23Ms Hodgson managed to get to the front door and you turned to her, grabbing her by the throat and slamming her hard against the wall, causing damage. You then strangled her, causing her to lose breath. This is part of the factual basis of charges 3 and 4.

24Casey attempted to intervene, grabbing at your leg. Marley tried to grab Casey and pull him away. You pulled Ms Hodgson’s hair.

25Ms Hodgson was able to get away from you, and she grabbed Marley and Casey and ran across the road to the neighbour and Sasha. As she did so, she yelled out to the neighbour to get inside and call for police.

26Once Ms Hodgson and the children had left, you located her personal savings of $3500. You took the money and left the address.

27The police attended the home at 5.36pm. They seized a hair sample that had been located inside the address which was believed to be Ms Hodgson’s hair that you had pulled out. They also photographed her injuries.

28On Sunday, 28 March 2021, the police received a report to attend at the family home for a welfare check upon you. When they attended they had to force entry to gain access to the premises. They found you in a drug affected state. You had taken an overdose of medication in an attempt to commit suicide. You were taken to Northern Hospital for the purposes of a mental health assessment.

29You were medically cleared from hospital and you were then taken to Fawkner Police Station for interview. You did not admit the offending. You were remanded in custody at this time and have remained in custody until today.

Nature and gravity of offending

30I turn now to consider the gravity of the offending. The Court of Appeal has emphasized that family violence is very serious and must be condemned. In Pasinis v The Queen in 2014, the Court of Appeal said:

“Historically, perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.”[6]

[6]Pasinis v The Queen [2014] VSCA 97, [53].

31In Filiz v The Queen, the Court acknowledged the "shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44."[7]

[7]Filiz v The Queen [2014] VSCA 212, [23].

32Your behaviour was outrageous and is condemned by this Court. Committing violence upon family members is a prevalent crime which deserves the stern denunciation of the Court to reinforce the message that such violence will not be tolerated and will be punished severely. The very fact that the victims of your crimes were your family is an aggravating feature of your offending.

33Ms Hodgson and your children were entitled to feel safe in the family home. They were entitled to feel loved and protected by you instead on this occasion you abused, threatened and assaulted Ms Hodgson in front of your children. The strangulation of Ms Hodgson was the most serious part of your behaviour. This is an act of asserting power and dominance. It has been seen as an aspect of domestic violence that is most concerning and is often a factor that later sees an increase in violence and repetition of offending.

34As mentioned earlier, this was not the first time that you had offended against Ms Hodgson. Approximately one month prior, you had been sentenced to 7 days imprisonment and a 15-month Community Correction Order for domestic violence related offending. This not only adds to the seriousness of the offending currently before the court but is also relevant in terms of your prospects for rehabilitation and specific deterrence. You had been gaoled for 7 days and given an order to assist your rehabilitation. This should have brought home to you the seriousness of your behaviour and deterred you from reoffending, but it did not.

35A further aggravating feature is that your violence occurred in the presence of your three children. On several occasions throughout the offending, your children took action to prevent you committing further violence. Your children were aged 12, 10 and 3 years at the time.

36Overall, I consider that the objective circumstances of your offending behaviour make it a serious example of domestic violence offending.

Victim impact statement

37Bridget Hodgson read her victim impact statement to the court. She gave a voice to how your crimes impacted upon her and your children. She spoke not only of the terror and trauma they suffered on the day but also of the isolation, confusion, anger and upset experienced whilst they were in a safe house. What you did was appalling. You were the person who was meant to love them the most. The ongoing ramifications of your offending are being felt by both Ms Hodgson and your children. She has been required to parent the children alone and has had contact with multiple services, including the police. It would, however, appear that there have been some positives that have come from the situation as Ms Hodgson describes the progress that the children have made. She also states that she believes she has become a better mum; she has more patience; she can laugh, connect, talk and play more with the kids. I take into account the emotional and psychological impact your offending has had on Ms Hodgson and your children.

Plea of guilty

38I accept that your plea of guilty was entered early at the committal stage. Further, I accept that your plea is indicative of some remorse.

39There is a significant utilitarian benefit in your plea of guilty. You did not cross-examine any witnesses. Ms Hodgson and your son Sasha did not have to relive what would have been a traumatic experience by giving evidence in court. You have also spared the court from what would have been a time-consuming trial.

40In addition, I note what the Court of Appeal recently said in the case of Worboyes v The Queen 2021 VSCA 169 at [39]:

“A plea of guilty entered during the currency of the covid 19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence and at another time although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”

41In these circumstances I propose to allow a significant discount for your plea of guilty.

Your personal circumstances

42You are currently 34 years of age and you were this age at the time of the offending. You are of Lebanese descent, both of your parents having been born in Lebanon. Your parents moved to Australia in 1977 to escape the civil war in that country. No doubt they suffered significant trauma as a result of the war; in particular, I note that your mother lost a daughter who fell ill due to the ingestion of contaminated water.

43You were born in Geelong and raised in Brunswick and Heidelberg. In 1993, when you were six years of age, you moved to Queensland with your parents and one of your sisters. You remained in Queensland for ten years. This is where you met Ms Hodgson. Your family returned to Victoria to be closer to extended family and your other siblings. Ms Hodgson moved to Victoria shortly after and your relationship commenced at this time.

44Neither of your parents enjoy good health. Your mother suffers from chronic asthma and diabetes and has a history of suffering delusions, hearing voices, and experiencing visual hallucinations. She has been diagnosed with complex post-traumatic stress disorder.

45Your father suffered a stroke nine to ten years ago which left him with paralysis in the left side of his body. He was diagnosed with prostate cancer, which I understand from your sister’s testimonial will not be treated with chemotherapy. He is currently receiving palliative care.

46I accept that your father’s state of health has raised complex and distressing emotions for you in light of your relationship with him. In your childhood, you were the victim of significant violence at the hands of your father. There were times when you were unable to attend school because of extensive and visible injuries. You described to Ms Gina Cidoni, psychologist, that your father stomped on your face, threw knives at you and hit you on the head on several occasions. You also witnessed violence perpetrated upon your mother by your father.

47In addition, your family has suffered significant and catastrophic loss. Three of your siblings have met untimely and violent deaths. Your oldest brother, Ike[8], hanged himself whilst in gaol in 1999. You were only 12 years old at this time. In 2003, when you were 16 years old, your brother Ferris[9] was murdered in a shooting in a paddock in Tarneit. Then, in 2007, your brother Randall[10] was stabbed several times in the chest and died immediately. This occurred in the family home during a “run through”. There is no doubt that the deaths of your brothers would have been devastating for you and your family.

[8] A pseudonym.

[9] A pseudonym.

[10] A pseudonym.

48You have three remaining siblings: two sisters and a brother. You continue to have contact with each of them. I received a testimonial from each of your sisters. They are very supportive of you, and it would appear that you provide support both to them and to your parents. In particular, your sister Emily[11] spoke of your connection with her son Travis who has been diagnosed with Hodgkin’s lymphoma.

[11] A pseudonym.

49You have a year 10 education and completed a few months of year 11, but left school and worked as a panel beater until 2009. In 2010, you worked as a builder’s labourer for a construction company. In your late 20’s you completed a plumbing apprenticeship. You worked for a plumber for six years and subsequently opened your own plumbing business. You ran this business for four and a half years. Ms Hodgson assisted you by doing the bookwork.

50At the time of your offending you had been in a relationship with Ms Hodgson for several years. You married when you were 18 years old. You and Ms Hodgson have three children: Sasha who is now 13 years old, Marley who is 10 years old and Casey who is 3 years old. As a couple you, had been together for 17 years, you had 3 young children and a business and there had been no issues of domestic violence until mid- to late-2020.

51In terms of your drug abuse, there was a period of approximately two years when you were in your late teens where you abused amphetamines and methylamphetamine. Your mother and Ms Hodgson assisted you to stop using and you remained clean for 13 years. In the middle of 2020, Ms Hodgson had a miscarriage. This and other stressors resulted in your significant relapse into drug use. As a result, your relationship with Ms Hodgson broke down and you experienced a downward spiral of drug use and poor mental health.  At the time of this offending and the previous family violence offending you were significantly affected by ice and you were thoroughly in the grips of addiction. Your mental health was also extremely compromised as exemplified by your attempted suicide on at least three separate occasions.

Mental health and the application of Verdins

52A psychological report from Ms Gina Cidoni was tendered on your plea and marked as Exhibit B. Ms Cidoni had the advantage of having assessed you in 2005 and 2010. As a result of the opinion provided by Ms Cidoni, your counsel in his written submissions argued that the principles of Verdins[12] should apply in your case. In particular, he submitted that the your moral culpability should be moderated to lessen the need for denunciation and reduce the importance of general and specific deterrence.

[12]R v Verdins (2007) 16 VR 269.

53At the plea hearing I questioned whether Verdins had application in your case. After some further reflection I have come to the view that it does apply. The opinion from Ms Cidoni is that you suffer from complex post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder and substance use disorder. In her view:

“Exposure to chronic traumatic events lead to heightened physiological and psychological stress reactivity, and this undermines [your] capacity to respond functionally to stressors. Sufferers of PTSD, have a higher level of tension and arousal where emotional and physical feelings of anger are more intense. Depression is also a common response after trauma. It is inferred that [you] developed substance abuse to alleviate [your] mental discomfort and [you] came to rely on it. [Your] disadvantages and mental illness impaired [your] judgement and [your] ability to reason, make rational decisions and control [your] behaviours where the application of Verdins should be considered. [Your] use of substances would have further impaired [your] insight, decision making and judgement, heightening the risk of engaging in impulsive and reckless behaviours.”

54I accept that your pre-existing psychological conditions meant that you had a reduced capacity to deal with the stressors you faced in the middle of 2020 and in particular the breakdown of your marriage. Further, I accept that at the time of your offending your mental illness had impaired your judgement and ability to reason and make rational decisions. In these circumstances I find that your moral culpability for the offending is reduced and that there should be a degree of moderation in the application of general deterrence.

55In addition I accept that limb 5 of Verdins has application based on Ms Cidoni’s opinion that gaol would be more onerous for you than for an individual without your conditions.

Application of Bugmy principles

56Mr Rolfe on your behalf also submitted that the principles of Bugmy[13] applied in your case and should also reduce your moral culpability. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing, in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardships do not diminish over time and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the Court’s assessment of moral culpability for the offence itself and also for the Court’s consideration of the weight to be given your prior criminal history.

[13]Bugmy v The Queen [2013] 249 CLR 571.

57In your case I accept that your childhood involved deprivation as a result of the violence perpetrated upon you by your father, the violence you witnessed perpetrated against your mother, intergenerational trauma transferred to you from your parents, your mother’s poor mental health and the catastrophic and tragic deaths of your three brothers. These experiences have had a substantial impact upon you and have been directly responsible for your ongoing and profound mental health issues.

58As a result, I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matter in early 2021 and, therefore, put your prior conviction in context. It is still my view that there is a place for specific deterrence in your case, although it is reduced as a result of my findings pursuant to the Bugmy principles. In regard to your prior conviction I also note that the therapeutic components of the Community Correction Order had not had a chance to be implemented at the time you re-offended.

Rehabilitation

59You have now experienced significant and direct consequences for your offending. Since your arrest on 28 March 2021, you have been on remand. This is a significant amount of time. You have been in custody at a time where custody is more onerous as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits and limited programs are all commonplace in the current regime. Notwithstanding these limitations, you have performed well in gaol.

60Throughout your time in custody you have undertaken various programs. These include the eight-module Remand Program, Take Stock A, Adapt, Take Stock B, Learning for Life, the six-hour Ice Effects Program, and the three-hour Anger Management Program. Certificates and letters were tendered on your behalf and marked as Exhibit C. The author of one of these letters, Tess Ryan, wrote that you had actively sought to participate in treatment, however, due to COVID-19 there have been long waiting times. You have been waitlisted for numerous programs. I was also told that you have been attending Narcotics Anonymous whilst in custody and that you intend to continue this upon release. It is to your credit that you have commenced your rehabilitation.

61In addition, you have been employed in concrete manufacturing within the gaol and you have provided negative drug screens, demonstrating your abstinence from illicit substances.

62You have the ongoing support from your family and intend to live with your parents. You are able to work as a plumber upon release. Most importantly, I am told that you accept that the relationship with Ms Hodgson is over and will consent to the extension of an Intervention Order when it is due to be renewed next week.

63In all of these circumstances I assess your prospects for rehabilitation as being good.

Sentencing

64I consider that the relevant sentencing principles that must be applied in your case are specific and general deterrence, albeit both moderated to a degree, denunciation, protection of the community and just punishment. I also consider the principles of parsimony and proportionality as part of the sentencing exercise. I am of the view that community protection in your case can best be achieved by your rehabilitation.

65I have taken into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offences, particularly the offences as they relate to crimes family violence.

Disposition

66Your counsel has submitted that the appropriate penalty in your case is one of a combination of imprisonment and a Community Correction Order. I have had you assessed for such an order and you have been found suitable

67On each of the charges you will be convicted and sentenced to and aggregate term of  214 days imprisonment. I reckon that 214 days has been served by way of pre-sentence detention. In addition, you will be placed on a Community Correction Order for a period of 2 years.

68The conditions of this Community Correction Order include:

(a)   200 hours of unpaid community work over that two-year period;

(b)   Assessment and treatment for drug use;

(c)   Assessment and treatment for mental health;

(d)   Offending behaviour programs, in particular the Men’s Behaviour Change Program;

(e)   Supervision by the Office Of Corrections; and

(f)    Judicial monitoring. The first of these, there may be one or two or three, depending on how you are going, but the first will take place on 17 December 2021 at 11.30am and can occur online if necessary.

69I will offset 100 hours of community work against the treatment. So that means if you engage in treatment, that can be deducted from the community work hours and that is an incentive for you to really knuckle down and concentrate on your rehabilitation.

70In addition to the conditions I have imposed, there are standard conditions to a Community Correction Order. The first and foremost of these is that you must not commit any other offences during the two-year period which could be punished by imprisonment. You must also report within two working days to the Sunshine Community Corrections Office. You are required to advise your supervising Corrections Officer of any change of address of where you are living and working – this must be done within two clear working days. It is a term of all Community Correction Orders that you must submit to visits as directed and you must obey all the instructions and directions of the Community Corrections Officer. You cannot leave the state of Victoria without prior permission.

71I must tell you that if you breach the order by reoffending or you do not comply with the conditions I have imposed, you will be charged with a contravention of the order and you will be brought back before me. It may be that I am required to re-sentence you for the original charges. So do you understand the conditions of the order?

72OFFENDER:  Yes I do, Your Honour.

73HER HONOUR:  Very well.  And do you consent to such an order?

74OFFENDER:  Yes I do, Your Honour.

75I indicate pursuant to s 6AAA of the Sentencing Act that if not for your plea of guilty I would have imposed a term of imprisonment of 2 years with a non-parole period of 12 months. Are there any other matters Ms Tatas?

76MS TATAS:  Nothing from me, Your Honour.

77HER HONOUR:  Very well.  And Ms Hayes-Child anything from you?

78MS HAYES-CHILD:  No, Your Honour.

79HER HONOUR:  Very well.  All right, Mr Hammond, so the effect of that is that you will be released sometime today, all right and so I wish you all the best and I will see ‑ ‑ ‑

80OFFENDER:  Thank you.

81HER HONOUR:  ‑ ‑ ‑ in December and I really want you to make a good go of the rehabilitation, all right?

82OFFENDER:  I will.

83HER HONOUR:  Because it is, you know, time to change.

84OFFENDER:  I will.  Thank you.

85HER HONOUR:  All right, good.  All right, if there is nothing else I'll adjourn the court.  I'll have my associate close the court.

86MS TATAS:  The court pleases.

87MS HAYES-CHILD:  The court pleases.