Director of Public Prosecutions v Hammond (No 2)
[2024] ACTSC 177
•6 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hammond (No 2) |
Citation: | [2024] ACTSC 177 |
Hearing Date: | 23 May 2024 |
Decision Date: | 6 June 2024 |
Before: | Hopkins AJ |
Decision: | See [32]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – unsatisfactory circumstances – nature of breach of Treatment Order – where extent of compliance had been poor – limited progress in rehabilitation while in custody – imposition s 80ZE – rehabilitation through parole |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 80V, 80W, 80O, 80X, 80ZD, 80ZE, 80ZH |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Hammond, Refshauge AJ, unpublished, SCC 56 of 2023, 24 July 2023 Hogan v Hinch [2011] HCA; 243 CLR 506 Millard v The Queen [2016] ACTCA 14 R v Burge (No 2) [2024] ACTSC 20 R v Cook (No 2) [2024] ACTSC 27 R v Tonna (No 2) [2022] ACTSC 362 Taylor v The Queen [2014] ACTCA 9 |
Texts Cited: | Bugmy Bar Book Committee (eds), ‘Childhood Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024) |
Parties: | Director of Public Prosecutions ( Crown) Ashley Jason Hammond ( Offender) |
Representation: | Counsel T Cobden ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecution ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 56 of 2023 |
HOPKINS AJ:
Background
1․Ashley Hammond, you sought to address your substance dependency, which substantially contributed to your offending, through a Drug and Alcohol Treatment Order (Treatment Order). On 24 July 2023, you were given that opportunity: see DPP v Hammond, Refshauge AJ, unpublished, SCC 56 of 2023, 24 July 2023.
2․On that day, you were convicted and sentenced to imprisonment for 3 years for an offence of aggravated act endangering life, constituted by intentionally and unlawfully suffocating your former partner so as to render her unconscious. You were also convicted and sentenced to imprisonment for 14 months for the offence of aggravated common assault committed against her. Each offence was aggravated because it involved family violence.
3․The total sentence imposed was imprisonment for 3 years and 10 months from 10 March 2023 until 9 January 2027, with the remainder of the sentence to be served as a Treatment Order from 24 July 2023.
4․The custodial part of the Treatment Order was suspended on condition that you comply with your obligations under the treatment and supervision part of that order: see ss 80V, 80W and 80X of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
5․You struggled to comply with the Treatment Order. You missed urinalysis appointments. You missed, arrived late to, or left early from, case management appointments. You failed to attend Matrix rehabilitation program sessions, tested positive for alcohol and drug use on multiple occasions and breached your curfew. You were sanctioned on multiple occasions and spent one period of seven days in custody for breach of the Treatment Order.
6․Ultimately, on 2 February 2024, your Treatment Order was cancelled because it was apparent that you were unlikely to comply with the conditions of the order and that a continuation of the Treatment Order would not be likely to achieve the objects of the order: ss 80ZE(1)(c), 80ZE(1)(d) and 80O of the Sentencing Act.
7․Although a review of your progress on the Treatment Order raises questions about your commitment to your rehabilitation, there were some positives. Though you missed Matrix rehabilitation program sessions, delaying your progress, you did complete 26 of the 32 sessions required for graduation from the Matrix program. Importantly, you did not reoffend during the 6 months when you were at liberty in the community.
8․At the time of cancelling your Treatment Order, Refshauge AJ encouraged you to enrol in the prison-based Karralika Solaris Therapeutic Community Program (TC program) within the Alexander Maconochie Centre. His Honour’s hope was that by participating in this program you could demonstrate a commitment to, and progress towards, your rehabilitation.
9․On 23 May 2024, you were brought to the Court for a hearing to determine whether to impose the suspended sentence or resentence you. You gave evidence at that hearing and a number of documents were provided to the Court by the prosecution and your lawyer. These included an updated pre-sentence report dated 29 April 2024 (UPSR), a letter from you and a letter from the Shine for Kids program, as well as an ACT Corrective Services document establishing your positive behaviour in custody.
10․The evidence established that you had not sought entry into the TC program due to concerns about conflict with other participants. You did not provide an explanation of your concerns. You gave evidence that you were in protective custody.
11․In your evidence, you said that there were limited programs available to you whilst you were remanded but that you had signed up to programs where you could. At the time of the hearing, you had completed two sessions of the Bringing Up Great Kids parenting program offered by Shine for Kids and one Smart Recovery Alcohol and Drug Rehabilitation program session. You said that you had previously engaged in a Yeddung Mura cultural empowerment yarning circle.
12․The UPSR establishes that you are engaging proactively in prison, have completed self-referrals and are maintaining contact with the Aboriginal Liaison Officer. However, the author of that report indicated that you refused to attend the Yeddung Mura program on 12 April 2024. In your evidence, you stated that you believed it was no longer running.
13․Overall, whilst your behaviour and attitude in prison appears positive, there is limited evidence of demonstrated progress towards rehabilitation. You gave evidence that you did not expect to be in a position to enter the prison-based TC program for the foreseeable future due to ongoing concerns around conflict with participants.
14․In your evidence, you acknowledged that you had ongoing and unaddressed issues with drug dependency, anger management and family violence. You said that you hoped to re-enter the Matrix program on release and engage with Yeddung Mura and Winnunga Nimmityjah Aboriginal Health Service for support. You indicated that you would be prepared to engage in residential rehabilitation if a place was available to you in the ACT upon release. There are some concerns about whether you will be accepted because of the nature of your offending. You have not made enquiries or applied for entry into any community based residential rehabilitation program.
15․Concerningly, what you said to the UPSR author and in your letter to the Court in relation to your offending makes clear that you are yet to fully acknowledge the seriousness of your offending and the impact it had on the victim. Developing a deeper understanding of the impact of your behaviour and its causes will be critical to your prospects of rehabilitation and to ensuring that you never again commit such acts of family violence.
16․To achieve the deeper understanding and address your underlying issues with family violence will likely require you to engage in men’s behaviour change and family violence programs.
Imposition
17․Because your Treatment Order was cancelled due to unsatisfactory circumstances, I must either impose the sentence that was suspended or resentence you: s 80ZE(2) of the Sentencing Act. This determination finalises the process of review that commenced at the cancellation of your Treatment Order: s 80ZH(4) of the Sentencing Act; R v Burge (No 2) [2024] ACTSC 20 at [8]-[12].
18․In either case, I must take account of the extent to which you complied with the treatment and supervision part of the Treatment Order: s 80ZE(2) of the Sentencing Act.
19․A high degree of non-compliance will ordinarily result in the imposition of the suspended sentence of imprisonment. This approach is necessary to ensure that “current and potential participants on the Drug and Alcohol Sentencing List appreciate the privilege available to them and the likely consequences of non-compliance”: R v Cook (No 2) ACTSC 27 at [19]-[20].
20․Though important, the degree of compliance with the Treatment Order is only one of the circumstances to consider. The discretion to resentence arises where “the court considers it appropriate in the circumstances”: s 80ZE(2)(b) of the Sentencing Act. This enables a court to consider all of the circumstances that are relevant and known at the time of deciding whether to impose or resentence.
21․One such circumstance is “where an offender has made substantial efforts at rehabilitation and achieved progress”: R v Tonna (No 2) [2022] ACTSC 362 at [78]-[79].
22․Mr Hammond, though I am satisfied that you made some efforts at rehabilitation and did achieve some progress, I am not satisfied that this is sufficiently substantial to make it appropriate to resentence you. There is no other circumstance or combination of circumstances to justify resentencing. Accordingly, I will impose the sentence that was suspended.
23․This sentence will be backdated to take account of the time you have served in custody prior to your original sentence, which was 226 days. It will also be backdated to take account of the 8 days you spent in custody between 6 October 2023 and 13 October 2023 and the 140 days you have spent in custody from 19 January 2024 until today, 6 June 2024. That is a total of 374 days.
Nonparole period
24․Because I have made an order cancelling the Treatment Order and imposing the sentence of imprisonment, and the period you have left to serve is more than 30 days, it is necessary for me to consider setting a nonparole period: s 80W(4)(b) of the Sentencing Act.
25․A nonparole period must be fixed having regard to a number of considerations: see, e.g., Taylor v The Queen [2014] ACTCA 9 at [19]; Millard v The Queen [2016] ACTCA 14 at [61]-[65]. These include the purposes of sentencing, the objective seriousness of your offending and your personal circumstances. A nonparole period is the minimum period of imprisonment that justice requires to be served.
26․Your prospects of rehabilitation are important. “Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA; 243 CLR 506 at [32]. Your rehabilitation will likely depend on the extent to which you engage in alcohol and drug rehabilitation programs, as well as men’s behavioural change and family violence intervention programs, upon you return to the community. There is little prospect at this stage that the hard work required of you can significantly progress whilst you remain incarcerated.
27․In determining the appropriate nonparole period, weight must be given to the lines of force that shaped your life as a child that continue to impact you today. The pre-sentence report prepared for your original sentence, dated 22 June 2023, records that as a child you were exposed to family violence both as a witness and a victim. You had experiences no child should have to face. This exposure and the lack of safety and stability you experienced as a child is key to understanding your challenges with addiction and your resort to violence: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at [44]; see generally, Bugmy Bar Book Committee (eds), ‘Childhood Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024) at [36]-[44].
28․The cancellation of your Treatment Order that followed your non-compliance with the conditions of that order was a significant step back. However, even a backward step can be understood as a foundation for continuing to climb the mountain towards abstinence and healing.
29․You were given the opportunity of a Treatment Order because you were dependent on illicit substances and this dependency substantially contributed to your offending, and indeed your history of offending. The progress you did make, the near completion of the Matrix rehabilitation program and the fact that you did not offend whilst in the community is undoubtedly a foundation for you to progress your rehabilitation.
30․Both your lawyer and the prosecutor submitted that your progress should be recognised in a nonparole period that is shorter than normal. I agree with them. It is in your interest and in the interests of the community that you be given an early opportunity for parole, with the supervision and support that is intended to provide. In the absence of supervision and support, it will be very difficult for you to break the cycle of substance dependence and offending.
31․I will set a nonparole period of just over 40 percent of your total sentence and include a recommendation that you undertake a substantial period of drug rehabilitation in a residential rehabilitation facility if that is available to you. I will also recommend that you complete an appropriate family violence behavioural change program.
Orders
32․For those reasons I will make the following orders:
(1)The cancellation on 2 February 2024 of the Drug and Alcohol Treatment Order dated 24 July 2023 be confirmed.
(2)The conviction of Ashley Jason Hammond of intentionally and unlawfully chokes, suffocates, strangles another person so as to render that person insensible/ unconscious (CAN 10370/2022) be confirmed and the sentence of 3 years imprisonment be imposed to commence on 29 May 2023 and expire on 28 May 2026.
(3)The conviction of Ashley Jason Hammond of aggravated common assault (Family Violence) (CAN 11085/2022) be confirmed and the sentence of 14 months imprisonment be imposed to commence on 29 January 2026 and expire on 28 March 2027.
(4)The total sentence imposed is 3 years 10 months to commence on 29 May 2023 and expire on 28 March 2027.
(5)A nonparole period be imposed to commence on 29 May 2023 and expire on 28 January 2025.
(6)It be recommended to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that:
(a)When released on parole, Ashley Jason Hammond be required as a condition of the parole to undertake a substantial period of supervised or mandated drug rehabilitation, preferably in a residential drug rehabilitation facility, if a program is available to him.
(b)When released on parole, Ashley Jason Hammond be required as a condition of the parole to undertake a family violence behaviour intervention program.
Final Word
33․Facing and recovering from your dependency will be difficult. Perhaps more difficult will be having the courage to face and address your history of violence, addressing the underlying causes of this behaviour, and your underlying trauma and psychological vulnerability. You know this far better than I do. It has been your lived experience. There is a mountain to climb.
34․On this climb, you will need to keep your motivation in mind. You have four children. You have a long life ahead of you. I hope that you are able to imagine a future in which you can be there for them as a supportive, stable and loving father.
35․Remember, each step you take up the mountain will give you a better view. Each step can be a source of pride for you. Each step will make others proud. If there are steps back along the way, then you will still remember the view. With courage you will continue to climb.
36․The view from the top will be worth it. I wish you luck.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins. Associate: J Liu Date: |
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