Director of Public Prosecutions v Hampstead

[2014] VCC 303

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

CR-12-01952

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROSS HAMPSTEAD

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JUDGE:	HER HONOUR JUDGE :LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2014
DATE OF SENTENCE:	12 March 2014
CASE MAY BE CITED AS:	DPP v Hampstead
MEDIUM NEUTRAL CITATION:	[2014] VCC 303

REASONS FOR SENTENCE
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Subject:              Criminal damage –  Recklessly causing serious injury – Intentionally causing injury – Common assault – Breach of family violence intervention order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J McWilliams	C Hyland, Solicitor for Office Public Prosecutions
For the Accused	Mr D Gibson	Victoria Legal Aid

HER HONOUR:

1Ross Hampstead, you have pleaded guilty before me on indictment to two charges of criminal damage, three charges of recklessly causing serious injury, two charges of intentionally causing injury and two charges of common assault. In addition summary matters have been transferred pursuant to s.145 of the Criminal Procedure Act 2009 and you have pleaded guilty to four charges of breach of family violence intervention orders.

2The crimes are serious and that is reflected in the maximum penalty that is proscribed by Parliament.  Namely 15 years' imprisonment for recklessly causing serious injury, ten years' imprisonment for criminal damage and intentionally causing injury and five years' imprisonment for common assault.  The penalty for breach of family violence intervention orders is two years' imprisonment or 240 penalty units maximum or both.

3You are currently aged 35 and you have no prior criminal history. 

4I shall now proceed to sentence you on the basis of the opening there being no dispute with the learned prosecutor's opening at the plea hearing.

5Your offending relates to incidents that occurred during the course of your relationship with Simone Thorpe.  Your relationship commenced in about August 2010.  Both of you had two children from previous relationships.  You have a son who was aged seven at the relevant time, and the complainant had a son and daughter, who were aged six and eight respectively. 

6During the month of October 2010 you all began to live together at an address in Tootgarook.  Over the course of your relationship you became aggressive and abusive towards the complainant in the context of drinking heavily.  In the period between April 2011 and June 2011 you damaged property at the address where you were living and, on occasions, while being verbally abusive towards the complainant. 

7The first two charges relate to criminal damage.  The first one relates to an occasion when you were arguing with the complainant and during the course of that argument you punched a wall in the living room that resulted in a hole in the plaster. 

8The second charge of criminal damage relates to another occasion when you were arguing with the complainant whilst outside.  You picked up an outdoor chair and threw it in the direction of the complainant.  The chair missed her but hit the fence and broke the fence palings.

9Charge 3 relates to an incident that occurred during early June 2011.  On this occasion you had been drinking heavily and became both physically and verbally abusive towards the complainant.  You punched her to the right eye several times and then several times to the cheek and mouth.  As a result she sustained heavy bruising, swelling to the right cheek and mouth, cut lips and broken teeth.  That relates to Charge 3, the recklessly causing serious injury.

10The complainant attended the Rosebud dental clinic on 16 July 2011 and had treatment for the damage she sustained to her teeth. 

11On 21 July 2011 during the evening you were arguing with the complainant at home.  You took off a steel capped boot and used it to hit the complainant to the head three times.  You then punched her a further two to three times with your fists and as a result she suffered cuts above each of her eyes and a cut to her head.  That constitutes Charge 4, intentionally cause injury.

12During that incident the complainant telephoned Triple-0 and as a consequence police attended and you were arrested and taken to the Rosebud police station.  There you were interviewed and, whilst being interviewed, made partial admissions in relation to the allegations that you assaulted the complainant.  You were advised by the police that you would receive charges by way of summons.

13The complainant was taken to the Rosebud Hospital where she received treatment for lacerations to her scalp above her left eye that were closed with sutures. 

14On 22 July 2011 a Family Violence Intervention Order was ordered against you at the Magistrates' Court, Frankston.  That order stipulated that you are not commit any physical violence against the complainant or damage property at her address but it did not prevent you from living with the complainant.

15Sometime thereafter in August 2011 there was an occasion at your home where you struck the complainant on the back of her legs just above her knees causing bruising to her legs following a verbal interchange.  That constitutes Charge 5, the common law assault and also establishes the facts of the first breach of Family Violence Order, a summary charge.

16Thereafter an incident occurred in late August or early September 2011.  The complainant was in her bedroom watching television with her daughter.  You had been arguing earlier that day and she asked you to sleep in the spare room.  You came into the complainant's bedroom and lunged at her.  You grabbed her left hand and bent two fingers back causing a great deal of pain.  She screamed out in pain and kept trying to push you away with her legs but you lunged at her again and then you bit her on the right cheek.  She screamed for you to get out and kicked at you until you left the room and she was able to lock the door.  The bite broke the skin and caused blood to flow from the injury.  Those facts constitute Charge 6, common law assault and the second summary charge for breach a Family Violence Order.

17On 31 October 2011, after consuming half a bottle of Wild Turkey bourbon, you became verbally abusive towards the complainant and later that night you physically assaulted her by punching her in the face and head and on that occasion you followed her into her bedroom took hold of her arm and bent it back and forced her face down onto the bed and yelled that she better start "fucking listening" to you or that you would "kill her". 

18You continued to assault her as she moved into the lounge room, punching her to the face and then you came up from behind and struck her several times with a large glass bong causing it to break.  She suffered a severe laceration to her head and lost consciousness and the broken glass also cut her legs.  She regained consciousness in the shower when you were trying to wash the blood from her head.  Those facts constitute Charge 7, intentionally cause injury and the summary of charge of breach of Family Violence Order.

19On Saturday 5 November 2011 you were drinking steadily throughout the day and became verbally abusive towards the complainant.  You picked up a garden chair and threatened her before throwing it at her, striking her in the lower leg, fracturing the ankle.  You then walked towards the complainant who went to walk away and as she did so you punched her with a clenched fist to the head.  That is Charge 8, recklessly causing serious injury.

20The complainant left the house during the afternoon and stayed away until early evening.  When she returned you were still drunk and abusive and you were demanding that she provide you with your dinner.  Whilst in the kitchen you picked up a barstool and struck her with it from behind to the right side of her body causing her to fall to the ground.  She tried to flee the house but you blocked her path and then you punched her to the head.  Those facts constitute Charge 9, the recklessly cause serious injury and the summary charge of breach of Family Violence Order.

21The complainant then convinced you that she would go out and buy you some dinner if you did let her go and she did so.  She rode on a bike to the Rye police station but that was not manned.  Instead she rode to your sister's house where she stayed overnight.  The following day she decided that you should move out and she returned home at about 5.00 p.m. and you had moved.

22By 8 November 2011 the pain from the various injuries, sustained on the day and night of 5 November 2011, became so great she presented to the Rosebud Hospital.  On examination extensive injuries were noted.  Namely bruising, cuts and abrasions, tender and swollen left ankle, tender chest wall, right lateral sixth rib fracture showing moderate displacement, associated pleural thickening, right apical pneumothorax, right pleural effusion, consolidation developing right lung base, a 0.9 centimetre fragment of bone avulsed from the lateral aspect of the fibula malleolus tip of the left ankle.

23Police were contacted and attended at the hospital where allegations were made of being assaulted.  The complainant was forensically medically examined by Dr Sanjeev Gaya from the Victorian Police Forensic Medical Unit on 10 November 2011.  Her summary of injuries observed were that there was a total of 31 injuries.  Of those 18 were bruises, 10 were abrasions and some of the injuries were combined injuries, that is, abrasions and bruising.  The remaining three, matted hair on the skull, swollen left ring finger and salmon pink skin on the left knee were suggestive of recent and/or prior injury.

24She recorded bruising on the face, right hand, right arm, left arm, right thigh, right leg, left thigh, left leg, left foot and back.  The abrasions were on the face, left wrist, left forearm, right thigh, left thigh, knee, left ankle, left little toe and right leg.  There were five scars noted on examination, three on the face, one on the left forearm and one on the right upper thigh.  The scarring on the forearm and the right upper thigh were not attributable to these charges.

25Hospital investigations confirmed that the complainant had a fractured ankle, fractured wrist and a pneumothorax. 

26Dr Gaya considered the constellation of injuries was indicative of a non-accidental cause and one which is commonly seen following an assaultive pattern.

27You were arrested on 8 November 2011 and participated in a record of interview where you made some admissions concerning the charged offence.  You were then remanded in custody and remained in custody until you were released on 3 February 2012 on strict bail conditions to undergo the Court Integrated Services Program, known as CISP.

28A report from CISP dated 1 June 2012 confirms that you self-reported long term cannabis and alcohol abuse.  You were referred for assessment and treatment for those conditions and successfully completed a counselling course.  You reported ongoing abstinence from alcohol and cannabis since your remand. 

29Following release from custody you were referred to Dr Kozminski, a general practitioner, who prescribed Campral, a medication to treat alcohol cravings.  In relation to your difficulty managing anger you were referred to a positive lifestyles program that you completed successfully.  During that program you demonstrated a capacity to reflect on what you had learnt during the program.

30Following the efforts made in making the changes to yourself you experienced improved trust in the relationships between yourself and your family.  You began to live back at home with your parents.  You also had counselling with a psychologist, Ms Anita Benolo, which involved hypnotherapy and cognitive behavioural therapy.

31It is evident, Mr Hampstead, that you did take the opportunity afforded to you through the CISP program to confront challenging aspects of your behaviour and you demonstrated a motivation to continue to improve yourself and sustain your abstinence.

32Your crimes have had a dramatic impact on the life of the complainant and that was demonstrated vividly in her Victim Impact Statement that was read to the court.  She described how you changed dramatically once you started living together in Tootgarook when you began to indulge in heavy drinking and smoking. 

33You caused her pain and anguish and your behaviour also impacted upon her two children, both of whom had come to love and trust you.  They were exposed to violence during the course of the relationship and are now having counselling.  The complainant talks of the physical pain that you inflicted and also the anguish that you caused both to her and her family. 

34In sentencing you I must have regard to the fact that Family Violence Orders must be strictly adhered to and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders.

35Your actions in continuing to breach the orders on four separate occasions suggests that you believed you could breach the orders with impunity.  Only by appropriately severe penalties can the court it make clear to both you and the broader community that such conduct is not tolerated.

36Mr Gibson, on your behalf, acknowledged that this was serious behaviour and that there was no justification for the violence that you inflicted on your former partner.  He noted that you came from a stable and loving family background.  You have the continuing support of your parents and also aunts and uncles, all of whom were present at the plea hearing.  You have a twin sister to whom you are close.  You grew up in Preston but moved to Mornington Peninsula with your mother when you were a young teenager because of your parent's separation.  You were an average student at school and left school in about Year 11. 

37You began to experience problems with alcohol in your mid-20's.  Your first relationship broke up because of your drinking problems and associated loss of employment and loss of licence.  Your son, Araya, is the child from your first relationship.  You have a good relationship with him and you were caring for him at the time you met the complainant and first moved together to Tootgarook.  Through your own actions and the subsequent remand, you lost custody of your son and have only recently commenced seeing him again. 

38You now openly acknowledge that there was no justification for the violence.  Your counsel referred to a toxic dynamic that had developed between both you and the complainant through mutual drinking.  That does not excuse your behaviour and at most it only provides some context to the offending. 

39Mr Hampstead, I accept following your release on the CISP program you did make dramatic efforts to remake yourself.  You maintained your abstinence and you undertook your counselling with a psychologist.  You successfully had employment for six months with Markifi Gates but that ceased due to a downturn in business.  You then undertook and completed a personal training course, a massage course with a view to becoming a personal trainer.  Your parents supported you and continued to support you whilst you are getting your life back on track and there has been a considerable improvement in your mood since you have stopped drinking. 

40You now have demonstrated insight into your offending and you are significantly remorseful for your behaviour.

41I have regard to the evidence you gave at your plea hearing.  I note you read to the court a letter of apology addressed to the complainant that sets out your deep sorrow for the wrongs that you have inflicted upon her.  You now openly acknowledge that there was no excuse for you to hurt the complainant both emotionally or physically.

42Your counsel, Mr Gibson, highlighted mitigating circumstances that I have taken into account.  It is acknowledged that early on in the legal process you did indicate a willingness to plead guilty to an appropriately drawn indictment.  The matter was the subject of a committal hearing and the complainant was cross-examined.  There were protracted negotiations and significant resolution occurred following the committal. 

43I am prepared to accept in the circumstances of your case that yours is an early plea of guilty and does demonstrate genuine remorse on your behalf.  I also accept that through your plea of guilty you have facilitated justice, you have avoided the inconvenience of a trial and, importantly, the further trauma that a trial may have caused to the complainant and I have taken that into account.

44Intoxication was raised during the plea hearing but Mr Gibson specifically disavowed any reliance upon the Verdins principles.  He confirmed with the court that it was just provided as a context for this very serious offending.  He highlighted your post-offence conduct and the very real efforts that you have undertaken to address your offending behaviours. 

45Having regard to your early plea of guilty, your expression of remorse and the very really efforts that you have taken to rehabilitate yourself, I do consider your prospects of rehabilitation are excellent and the likelihood of you re-offending in a like nature is low. 

46Mr Gibson submitted that an appropriate disposition was a further period of imprisonment combined with a Community Corrections Order.  Mr McWilliams, on behalf of the Crown, submitted a sentence of that nature was not appropriate.  He acknowledged the significant steps taken by you to rehabilitate but submitted, having regard to the sustained nature and the circumstances of the offending, a further sentence of immediate imprisonment to be served is required.

47Having regard to the nature and circumstances of your offending, I agree with the prosecutor's submission.  The seriousness of the offending warrants a further term of imprisonment notwithstanding that you did make significant steps towards your ultimate rehabilitation whilst on bail. 

48It is important in cases such as this for the court to emphasise general deterrence and denunciation on behalf of the community.  Specific deterrence for you is less relevant given your frank and open acceptance of responsibility and the very real steps you have taken to address your underlying offending behaviours.

49Mr Hampstead, the Family Violence Intervention Order prohibited you from committing family violence against the complainant.  In committing the series of offence against her following the imposition of the order you have now been charged with the offences that deal specifically with your criminality and the four breaches of intervention order. 

50It is important in formulating the sentence that the court does not impose double punishment.  Nonetheless the sentence must reflect the fact that you did breach court orders specifically directed at prohibiting you from committing family violence on the complainant. 

51The comments of Ashley JA, with Bongiorno JA agreeing, in R v Maher have some resonance in this regard:

I turn to the relationship between, on the one hand, the stalking counts and the burglary and aggravated burglary, and on the other hand, the breaches of intervention order.  It appears to me that the distinct criminality of the offending means that there should be some cumulation between the sentences imposed.  Breaches of intervention order, were in terms, disobedience of a court order.  It would be inappropriate if that was not reflected in the breaches having real impact upon sentence.  But , to meet the totality point,  some amelioration of the individual sentences for the breaches and on the other counts is, in my view, required.[1]

[1]R v Maher [2011] VSCA 136, [16].

52That is what I have attempted to do in the circumstances of your case. 

53Further, it is important for the Court to acknowledge the policy behind the Family Violence Intervention Act.  As was stated by Neave Justice of Appeal in DPP v Kane Johnson [2011] VSCA 288, at [4] and following:

All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats.  Family violence is a serious problem in Australia.  In 2004, it was reported that family violence is ‘the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years’.[2]  Breach of intervention orders is relatively common.[3]  In its Report on Breaching Intervention Orders, the Sentencing Advisory Council said that, between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year.  Over a quarter of all intervention orders imposed were breached.

[2]Victorian Law Reform Commission, Review of Family Violence Laws, Report (2006), [2.94].

[3]Between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed approximately 14,000 intervention orders per year.  Over a quarter of all intervention orders imposed were breached: Sentencing Advisory Council, Breaching Intervention Orders Report (June 2008). [3.6.1].

54Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them.[4]  As was recognised during parliamentary debates on the Family Violence Protection Bill 2008,[5] intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. The Victorian Law Reform Commission, in its report which ‘underpin[ned]’ many of the changes in the Bill,[6] observed:

The response to a breach of an intervention order is crucial to ensuring the intervention order system is effective in protecting family violence victims. If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike.[7]

[4]Victorian Law Reform Commission, Review of Family Violence Laws, Report (2006), [2.61]; Victorian Law Reform Commission, Defences to Homicide: Issues Paper (2002), [2.32].

[5]See, for example, the observation of an opposition Member of Parliament that the government ‘need[s] to send a very strong message to those people in the community that if they breach an intervention order, they will get a stronger penalty and not a lesser penalty’: Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2008, 3191 (Jeanette Powell).

[6]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2649 (Rob Hulls, Attorney-General).

[7]Victorian Law Reform Commission, Review of Family Violence Laws, Report (2006), [10.67].

55It is important also for this court to acknowledge the policy behind the Family Violence Intervention Act and that was stated by another Court of Appeal judge, Justice Neve, in a case called DPP v Cane Johnson.  She said:

"All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats.  Family violence is a serious problem in Australia.  In 2004 it was reported that family violence is the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years.  Breach of intervention orders is relatively common. 

In its report on breaching intervention orders the Sentencing Advisory Council said that between July 2004 and June 2007 the Magistrates' Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year.  Over a quarter of all intervention orders imposed were breached.

Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injury or even kill them.  As well recognised during the parliamentary debates on the Family Violence Protection Bill 2008 intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence." 

56It is therefore very important for the Court to respond adequately to breaches of intervention orders so that they are perceived as being an effective order by both victims and perpetrators alike.

57Mr Hampstead, in sentencing you I must impose just punishment.  At the time of the offending your conduct did reflect a real contempt for the court process and a total disregard for the Family Violence Protection Order that had been put in place to protect your then partner.

58I acknowledge that you have now taken positive steps to address your offending behaviour and through your plea of guilty and written expression of apology now take full responsibility for your actions and acknowledge the harm that you have caused.  Nevertheless this is a period of prolonged serious offending over a series of months and the impact upon the victim has been considerable.  In those circumstances the only appropriate disposition for this court to impose is one that necessitates further time in custody. 

59I have had regard to the principles of totality in fixing the appropriate sentence.  I propose to order to that you serve a further period of imprisonment and have fixed a shorter than usual non-parole period so that, if appropriate, you may be released into the community with ongoing and appropriate supports to enable you to continue with your rehabilitation. 

60I will now impose the formal orders so I ask that you stand please, Mr Hampstead. 

61The formal court orders will be in respect to each charge on the indictment you will be convicted and sentenced to a period of imprisonment as follows.

62Charge 1, one month imprisonment.  Charge 2, one month imprisonment.  Charge 3, nine months' imprisonment.  Charge 4, 12 months' imprisonment.  Charge 5, one month imprisonment.  Charge 6, six months' imprisonment.  Charge 7 18 months imprisonment.  Charge 8, 24 months' imprisonment.  Charge 9, 30 months' imprisonment. 

63On the summary charges the following sentences will be imposed.  Charge 1, three months' imprisonment.  Charge 2, six months' imprisonment.  Charge 3, 12 months' imprisonment and Charge 4, 12 months' imprisonment.

64Charge 9 on the indictment is the base sentence.  I make the following orders for cumulation.  Three months of the sentence imposed on Charge 4, six months of the sentence imposed on Charges 7 and 8 are cumulative upon each other and the sentence imposed on Charge 9 and that makes a total effective sentence of three years and nine months' imprisonment. 

65In addition one month of the sentences imposed with respect to summary Charges 1 and 2 and two months of each of the sentences imposed with respect to summary Charges 3 and 4 are cumulative upon each other and upon the head sentence I have imposed on the indictment.

66Therefore the total effective sentence is four years' and three months' imprisonment and I fix a non-parole period of two years imprisonment .

67I make the following declaration of pre-sentence detention.  I believe it is 99 days?

68MR ONG:  Yes, Your Honour.

69HER HONOUR:  I make the declaration that you have already served 99 days of the sentence that I have imposed this day and direct that that be entered into the record of the court. 

70I make the following declaration pursuant to s.6AAA but for your plea of guilty I would have imposed a term of imprisonment of six years to serve three years. 

71Application has been made for retention of a forensic sample taken on 8 November 2011.  Mr Gibson did not have any instructions to oppose this.  Having regard to the seriousness of the offending I consider it is in the interests of justice that that order be made and I make the order accordingly.  Finally I make the disposal order sought. 

72MR ONG:  As Your Honour pleases.

73HER HONOUR:  So is that clear?

74MS SLEETH:  Your Honour, can I just clarify the cumulation.  It was three months on Charge 4 and six months was on Charges 7, 8 and ‑ ‑ ‑ 

75HER HONOUR:  Yes?

76MS SLEETH:  Was it just 7 and 8?

77HER HONOUR:  Seven and eight.

78MS SLEETH:  Yes, Your Honour.

79HER HONOUR:  All right.  Thank you.  So that concludes those sentencing remarks and Mr Hampstead can be taken downstairs.

80MR ONG:  As Your Honour pleases.

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