Director of Public Prosecutions v Hampson
[2024] ACTSC 396
•13 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hampson |
Citation: | [2024] ACTSC 396 |
Hearing Date: | 9 December 2024 |
Decision Date: | 13 December 2024 |
Before: | Christensen AJ |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – property offences –Bugmy, Henry, Verdins principles – childhood of profound disadvantage – significant motivation to rehabilitate – offending in ACT to obtain rehabilitative support through sentence order – community protection and rehabilitation – availability of secure housing – remorse – pragmatism in sentencing – restorative justice referral – drug and alcohol treatment order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 116 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR |
Parties: | Director of Public Prosecutions ( Crown) Andrew John Hampson ( Offender) |
Representation: | Counsel E Bayliss ( Crown) S Lynch ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Offender) | |
File Numbers: | SCC 252, 253 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Andrew Hampson is to be sentenced with respect to four offences committed on 14 April 2024. The offences and applicable maximum penalties are as follows:
(a)Burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 14 years imprisonment, 1400 penalty units, or both (CAN 2024/3945);
(b)Take motor vehicle without consent, contrary to s 318(1) of the Criminal Code, carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both (CAN 2024/3957);
(c)Theft, contrary to s 308 of the Criminal Code, carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both (CAN 2024/3951); and
(d)Property damage, contrary to s 116(3) of the Crimes Act 1900 (ACT), carrying a maximum penalty of 2 years imprisonment, 50 penalty units, or both (CAN 2024/6623).
2․Mr Hampson seeks a drug and alcohol treatment order (treatment order): s 12A Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). He is strongly motivated to rehabilitate and has identified a treatment order as a mechanism by which he could access the support he requires. He has been found suitable for a treatment order. As will become apparent, he is eligible for such an order, and I consider it an appropriate order for Mr Hampson. An issue arises though as to the imposition of such an order with regard to the supports available at the current time.
Offending
3․On 1 April 2024 at about 10am, the residents of a house in Chifley left their residence. All doors and windows were locked, and the alarm system armed. At about 11:33am, they received a notification from a security camera that had detected movement in the detached garage. The victims checked the closed-circuit television (CCTV) footage that was live streaming, and it displayed a male, later identified as Mr Hampson, in the garage.
4․The victims watched as Mr Hampson unlocked their 2018 Volkswagen vehicle. He placed a blue backpack and high visibility jacket on the passenger side seat. He then moved to the back of the garage and began stealing Milwaukee tools that were located in the garage. These were placed into the passenger areas of the vehicle. Mr Hampson then moved to the rear of the vehicle, removed from it items belonging to the victim, and packed more tools into the boot.
5․During this time, the male victim spoke to the offender through the security camera, saying “get out of there, you’re on camera”. Mr Hampson pulled the security camera from the wall, damaging it, and then left it on the ground of the garage. He then came to leave the garage, driving away in the vehicle with the stolen property.
6․The stolen property included the tools, as well as AirPods, a piggy bank containing an unknown amount of money, a watch, and a torch. The approximate total value of the property stolen was $14,000.00.
7․At about 11:44am, police arrived at the rear of the residence. A silver bicycle was leant up against the front wall of the residence, with it concluded that this bicycle was used by Mr Hampson as transport to the residence. Mr Hampson had then scaled to the second story of the residence, smashed the glass sliding door, and entered the house through the main bedroom. He searched through the bedside tables, locating keys.
8․Police conducted forensic examinations of the scene, and a number of fingerprints were developed. The outcome of the forensic examinations was not included in the facts. In any event, Mr Hampson was identified by police after an incident that occurred in New South Wales (NSW) while he was driving the Volkswagen.
9․This occurred at about 11:30pm the same day. As a result of the incident, Mr Hampson was injured and was transported to the Canberra Hospital. The next day, police spoke to him in relation to the entry of the house and the taking of the vehicle. Mr Hampson said “yeah probably, I don’t even know, I was that fucked up”. In relation to support options available to him, Mr Hampson said “Mate, I actually came down here so I can get locked up here. Your system supports people better”.
10․Mr Hampson was arrested in relation to these offences. Police recovered the victim’s watch from Mr Hampson’s property items.
11․The burglary has the aggravating feature that damage was caused to effect entry. The amount of property stolen is also aggravating, it being a significant amount. It included property that was of a sentimental nature, as well as items that will have involved significant inconvenience to replace. The extent of property taken required Mr Hampson to move throughout the house in multiple areas, including at least one bedroom, and for a relatively extended period.
12․Additionally, Mr Hampson stole a valuable vehicle during the burglary. It can be inferred that Mr Hampson had the vehicle in his possession for the remainder of the day, through to the night, when the incident occurred in NSW. While the facts do not outline the condition of the vehicle once recovered, the victim impact statement speaks of the car having previously been in pristine condition, and that the victims have now had to get a less valuable car. The victims plainly suffered a significant financial, and sentimental, loss from the taking of the vehicle. There was also likely inconvenience caused for the period they were without the vehicle.
13․There must have been a level of premeditation to the offending, although it was not a sophisticated form of the offences. It was though confident conduct, with a brazen entry during the day by a method that was capable of attracting attention.
14․Overall, without detracting from the seriousness of the offending from the perspective of the victim and the community, the conduct is a ‘typical’ example of these types of offences. The aggravating features of the offending, being the damage and value of the property, are reflected in distinct charges. The totality principle has application in the sentencing exercise, with levels of concurrency appropriate.
15․Fortunately, the victims were not home at the time of the entry to the house, although there was a risk they might have been given when Mr Hampson chose to enter their home. The victims not being home is unlikely to be of much consolation to the victims. They had the particularly unsettling and distressing experience of watching the entry of their home occurring. This included their children having been exposed to the conduct as they were present when the CCTV footage was viewed. The entire family’s sense of safety, security, and privacy in their home will have been impacted.
16․This impact is borne out in a victim impact statement in which the victim explains the mental and emotional impact on the family, including the children. There is stress and sadness, and a feeling of loss that their home is no longer a safe haven. The emotional stress has impacted on their work, and there have been financial implications from this, from the loss of their car, and security upgrades. The victim expresses that even some six months after the offending:
The impact of this burglary is still very much present in our lives. The trauma of it is something we are trying to work through as a family and feeling unsafe is something we know we must live with for the foreseeable future.
Time in custody
17․Mr Hampson has remained in custody since the date of his arrest. In accordance with his criminal history, he served a sentence of seven days for an offence of minor theft from 27 August 2024 to 2 September 2024. He has been solely in custody with respect to the index charges for a period of 249 days (2 April to 26 August 2024, 3 September to 12 December 2024), which will be taken into account on the sentence.
Plea of guilty
18․Mr Hampson pleaded guilty to the charges in the Magistrates Court after negotiations between the parties. There was never a not guilty plea, nor a brief of evidence prepared. The matter was committed for sentence to the Supreme Court. I assess the appropriate discount as being one in the order of 25 per cent.
Subjective circumstances
19․Mr Hampson is now 42 years of age. He is a First nations man from Biripi Country. He is currently single.
20․The minor theft offence referred to above was committed on 24 February 2024 and is the only other offence Mr Hampson has committed in the Australian Capital Territory (ACT). His criminal history in NSW is though lengthy. He has previously committed offences of burglary, property damage, assault, drug offences, and vehicle related offences. He has been sentenced to community-based orders, breached community based orders, and has been imprisoned. Mr Hampson described it as having spent 80 per cent of his adult life in jail. As the prosecution submitted, on the basis of Mr Hampson’s criminal record, there is a clear need for personal deterrence, accountability, and punishment as sentencing purposes.
21․Mr Hampson’s criminal history must though be understood with reference to his background. His childhood was one of profound disadvantage such that the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are readily applicable. Mr Hampson was born in the Silverwater Correctional Centre to a mother afflicted with substance abuse challenges. His mothers’ circumstances meant that he was raised by his grandparents in his early years, and would visit other family members who were in prison, including his mother. He came to live with his mother as an eight to nine year old, but was exposed to substance use, and a number of deeply traumatic incidents. His mother has since passed away. His father died by suicide when he was two years of age. His schooling was insecure. Mr Hampson’s upbringing is such that he demonstrates an innate strength and resilience to overcome challenges.
22․Further, his upbringing is such that he, unsurprisingly given the circumstances, developed an early dependence on substances. I am satisfied that the R v Henry [1999] NSWCCA 111; 46 NSWLR 346 principles are applicable. Mr Hampson commenced cannabis use at approximately ten years of age. Thereafter, he came to be exposed to many forms of substances. This includes that by sixteen years he had injected amphetamine, was using methamphetamine from twenty one years, and used heroin for a period. He is assessed as having a likelihood of severe substance use disorder. He is now utilising pharmacotherapy to positive effect.
23․The agreed facts provide that at the time of these offences, Mr Hampson had escaped from lawful custody, being a mental health facility in NSW. The information as to Mr Hampson’s subjective circumstances is that there is no evidence of Mr Hampson having a major mental illness. He is diagnosed with post traumatic stress disorder. The information available as to the causes of that is such that I accept that limbs two and five from R v Verdins [2007] VSCA 102; 16 VR 269 are applicable. His condition is, and would be, exacerbated by the custodial environment. Mr Hampson would plainly benefit from psychological and counselling support. He recognises this and is committed to engaging with such.
24․In addition to the information provided to report writers, Mr Hampson gave evidence at the sentence hearing, and he presented as strongly committed to rehabilitation. He has six children, ranging in age from an adult through to a one year old. He is motivated to reestablish and rebuild relationships with his children. Mr Hampson has expressed a desire to “break the cycle” and he does not want his children to experience the same upbringing as he did. He desires to change, be a better person, and be an upstanding member of the community.
25․Mr Hampson is motivated to engage in employment. He has previously had experience as a welder, and in “handyman” related tasks. He is also motivated to engage with
pro-social supports and associates, including through a church community.26․In respect to his rehabilitation intentions, Mr Hampson expressed, with reference to certificates and letters he had available, his efforts in this regard. He has accessed the rehabilitative programs that have been available to him while in custody. He expressed his understanding of the onerous requirements of a treatment order and his keen intent to comply with such an order. He viewed it as the mechanism by which he could finally achieve rehabilitation.
27․Mr Hampson impressed with the extent of insight he showed as to his criminogenic risks and his commitment to addressing these through the supports available under a treatment order.
Consideration
28․It is plain that, to give effect to sentencing purposes including recognising the harm done to the victims, the only appropriate sentences are ones of imprisonment. The issue becomes how that imprisonment is to be served, and from when.
29․Mr Hampson said to the police, and to the report writers, that he was motivated to offend in the ACT for the purposes of accessing the rehabilitation supports available in this jurisdiction. This claim has to be balanced against his having attempted to avoid detection by damaging the security camera during the offending behaviour. At least at the time of the offending, he was plainly more motivated by obtaining property with a view to engaging in more substance use.
30․It was offending conduct that involved a callous disregard for other community members. He acknowledged in his evidence in court that it was self-interested conduct. That he is now able to recognise this appears to me to demonstrate his progress towards insight into the seriousness of his offending. Persons in the grip of drug dependency are inherently, although perhaps not deliberately, selfish. Mr Hampson expresses no longer wanting to be that type of person. He acknowledged the harm he caused to the victims and expressed an apology to the victims.
31․I consider it appropriate to enable him an opportunity to express that directly to them, in the event the victims are prepared to extend him that opportunity, and I will include in the orders an ability for a restorative justice process to occur. This may, if the victims wish to do so, provide an opportunity for the victims to express the harm caused to them, while also facilitating continued rehabilitation by gains in insight for Mr Hampson.
32․It is appropriate otherwise that this rehabilitation is supported through the imposition of a treatment order. Such an order is one for which Mr Hampson is eligible (s 12A Sentencing Act) and for which he is suitable: ss 80S, 80T Sentencing Act. ACT Corrective Services and ACT Health have both found Mr Hampson suitable for a treatment order, subject to the programs available to him. He is not suitable for a residential program due to his [redacted], and a day program is recommended. He has not been able to be assessed for such a program while in the custodial environment.
33․The prosecution did not oppose the imposition of a treatment order, acknowledging that support for Mr Hampson’s rehabilitation is ultimately the best form of community protection. The prosecution did though appropriately caution as to issues that may arise with the imposition of the order at this particular time (being an impending holiday period), given the reduced support services available. It was raised that it may be setting Mr Hampson up to fail.
34․There are occasions in determining the appropriate sentencing orders in which a considered risk needs to be taken in the interests of ultimately achieving the sentencing purposes. This is one of those matters. Mr Hampson has available to him, as of the date of this sentence decision, housing in a supported environment, that may not be available to him if he does not take up the allocated place by the end of today. Mr Hampson is not though able to be assessed for a day rehabilitation program while in custody, and, if found suitable, will not be able to enter any such program until 2025.
35․Nonetheless, there is a solid basis upon which to be satisfied that the risk that arises from a release from custody in advance of the entry to a rehabilitation program is mitigated to an acceptable level. Mr Hampson has available to him support services through Winnunga Nimmityjah and Yeddung Mura. He has already made solid progress towards his substance dependency rehabilitation, having been abstinent since the day of his arrest, and with pharmacotherapy. Urinalysis testing from November 2024 returned results indicative of no illicit substance use. He has a solid relapse prevention plan and is strongly motivated to access program and counselling support once in the community.
36․Imposing the treatment order from today ensures that Mr Hampson has housing available to him. Stable housing is critical for achieving rehabilitation, and the experience of the Drug and Alcohol Sentencing List is such that the ability to secure stable housing is seldom easy. It would be contrary to Mr Hampson’s benefit, and the community’s, if Mr Hampson’s housing option was not able to be secured.
37․Mr Hampson himself has given consideration to the impacts on his rehabilitation intentions if he does not immediately have available to him the intended rehabilitation program. To his credit, he has made contact with and identified support services that he will be able to access, in addition to those that are available under a treatment order. Further, he has the protective and motivating factors of family members who will be visiting the ACT during this period upon his release.
38․I am satisfied that the risks arising from a release in advance of the rehabilitation program are reduced to an acceptable level given the support services that are available. This is an occasion when a pragmatic approach needs to be taken if justice, and the purposes of sentencing, are to be served. Accordingly, the custodial part of the term of imprisonment will be suspended for the purposes of a treatment order. The necessary court attendance, program support, and curfew restrictions that Mr Hampson will need to engage with in advance of entry to a rehabilitation program will be addressed with oversight and directions by the treatment team.
Orders
39․For those reasons the following orders are made:
(1)On the charge of burglary (CAN 2024/3945), the offender is convicted and sentenced to 18 months imprisonment, reduced from 24 months on account of the plea of guilty, to commence on 8 April 2024 and end on 7 October 2025.
(2)On the charge of take motor vehicle without consent (CAN 2024/3957), the offender is convicted and sentenced to 14 months imprisonment, reduced from 18 months on account of the plea of guilty, to commence on 8 August 2025 and end on 7 October 2026.
(3)On the charge of theft (CAN 2024/3951), the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 8 April 2024 and end on 7 January 2025.
(4)On the charge of property damage (CAN 2024/6623), the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months on account of the plea of guilty, to commence on 8 April 2024 and end on 7 October 2024.
(5)The total period of imprisonment of 2 years and 6 months will commence on 8 April 2024 and end on 7 October 2026.
Drug and alcohol treatment order
(6)A Drug and Alcohol Treatment Order pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Andrew John Hampson, in respect of the eligible offences set out in Orders 1 to 4, of which Andrew John Hampson has been convicted, and for which he has been sentenced for a total term of 2 years and 6 months imprisonment.
(7)The drug and alcohol treatment order be for 1 year, 9 months, and 25 days, to commence on 13 December 2024 and end on 7 October 2026.
(8)The Custodial Part of the drug and alcohol treatment order for the eligible offences be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 13 December 2024 until 7 October 2026.
(9)The Treatment and Supervision Part of the drug and alcohol treatment order be for 1 year and 6 months, to commence on 13 December 2024 and end on 12 June 2026.
(10)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Andrew John Hampson be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 13 June 2026, until the end of the total sentence, 7 October 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
(11)For the Treatment and Supervision Part of the drug and alcohol treatment order:
(a)The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
(b)Andrew John Hampson undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team;
(c)Andrew John Hampson reside as directed by the Treatment and Supervision Team.
(d)Andrew John Hampson abide by a curfew as directed by the Treatment and Supervision Team, and not leave his residence in accordance with that curfew other than for a medical emergency or as directed by the Treatment and Supervision Team, and he present himself to the front door of the residence if required by an officer of ACT Policing;
(e)Andrew John Hampson not leave the Australian Capital Territory except as directed by the Treatment and Supervision Team;
(f)Andrew John Hampson not return a positive test sample under alcohol and drug testing;
(g)Andrew John Hampson not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him; and
(h)Andrew John Hampson comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(12)Andrew John Hampson be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.
40․It be noted that Andrew John Hampson has indicated a willingness to engage in restorative justice, and it is recommended that the Director-General (corrections) refer the offences for restorative justice pursuant to pt 6 of the Crimes (Restorative Justice) Act 2004 (ACT) at a stage as deemed appropriate by the Director-General (Corrections) during the Drug and Alcohol Treatment Order.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 15 May 2025 |
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