Director of Public Prosecutions v Hampton (a pseudonym)

[2019] VCC 1894

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK HAMPTON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2019
DATE OF SENTENCE:	15 November 2019
CASE MAY BE CITED AS:	DPP v Hampton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1894

REASONS FOR SENTENCE
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Subject: Armed Robbery, Breach of Intervention Order
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	OPP
For the Offender	Mr A. Sharp	VLA - MORWELL

HER HONOUR:

1Jack Hampton[1] you have pleaded guilty to 2 counts of armed robbery.  The maximum penalty for this offence is 25 years imprisonment.  You have also agreed to have dealt with by me, and pleaded guilty to Summary Charges 7 and 8, relating to breaches of an intervention order.   

[1] This name is a pseudonym

2The circumstances of your offending are set out in the Summary of Prosecution Opening dated 16 September 2019 and can be summarised as follows:

3On 10 January 2019 at 9.30 pm you were with Ben Cross in his bungalow at the back of a house in Preston, smoking cannabis.  You asked if you could use his phone to call your cousin - you did so then left.  You however returned to the bungalow at about half past 11 that night, with an unknown co-offender.  At that time, present in the bungalow were Ben Cross, his sister Courtney and a friend John Seath.


4You produced a 30 cm long, silver knife - you stabbed it in the ground before making slashing motions in the air with it, demanding John and Courtney's phones.  Courtney refused and you continued threatening John that you would slit his throat.  You grabbed John's phone (Charge 1) which was on a desk nearby, as well as Ben's Nike shoes (Charge 2).  You then left the bungalow with your co-offender. 

5Police became aware that you were staying at a motel nearby in Preston - they arrived there at about half past 5 am and arrested you.  When interviewed you admitted to going to the house where the bungalow was situated, but denied the allegations.

6You were staying at the motel with your partner Eloise Swindon[2] and your two children at the time of the offending.  There was an intervention order in place at the time, with conditions that you not go or remain within 200 metres of Ms Swindon and your children.  Those are the related summary offences.

[2] This name is a pseudonym

VICTIM IMPACT STATEMENT

7No victim impact statements were provided - I have no doubt that those in the bungalow would have been frightened by your drug induced irrational behaviour and threats you made whilst brandishing a knife.

PERSONAL CIRCUMSTANCES

8I received a report from Miriam Latif, Consultant Psychologist, dated 27th September 2019 and I take that material into account.

9You are currently aged 23 and are still a relatively young offender.  You have five siblings but no contact with your immediate family.  You had a difficult childhood with your father dying from a drug overdose when you were two.  You then lived with your grandparents, whom you described as physically and mentally abusive.  You referred yourself to residential care with DHS when you were 12. 

10You were diagnosed with ADHD in primary school and were difficult to manage both at school and home.  You left school in Year 7.  You have worked sporadically since leaving school and have been unemployed in the last two years.

11As indicated in the summary, at the time of this offending you were living in a motel with Ms Swindon and your two children - you had been homeless since you were released from prison in September 2018.  You have been in a long-term relationship since you were 17 with Ms Swindon.  This relationship has been volatile as a result of your drug use - I understand that the Family Violence Order expired last month.  You see your partner and children as the only ones who care for you - given your chronic feelings of loneliness and poor family connections, your time in custody has been difficult.  Ms Latif notes that you perceive your relationship with your partner and children as all that you have.

12At the time of the commission of these offences, you were going through a particularly difficult time.  On your release from custody in September 2018 you had no supports or employment and you were homeless - you soon turned to drugs and alcohol and also engaged in some self‑harming behaviour.

13You have a serious and long history of drug abuse, commencing around the time you were in residential care with the use of alcohol and cannabis.  That soon progressed to using amphetamines, and by age 17 your drug of choice was methamphetamine or ice.  By the time you were 19 you were using ice on a daily basis intravenously.  Upon release from prison in September 2018 you started using heroin.  At the time of the offending you had reverted back to ice use and you were abusing prescription medication.  Your drug and alcohol history is relevant to Ms Latif's diagnosing you with a number of clinical disorders, each in partial remission due to your incarceration and the controlled environment of custody.  She opined you suffered from the following disorders:  (1), Severe Cannabis Use Disorder; (2), Severe Stimulant Use Disorder; (3), Moderate Sedative, Hypnotic and Anxiolytic Use Disorder; and (4), mild Alcohol Use Disorder.

14You have a significant criminal history dating back to June 2011 at the Children's Court - you have had 9 court appearances since then.  Most of your offending has related to damaging property, dishonesty and driving matters and other drug related charges.  You also have a number of prior convictions for breaching family violence or intervention orders.  Your most recent court appearance was on 24 August last year and you were sentenced to one month imprisonment with a CCO for 12 months to commence at its completion - this offending breached that order.  You have previously been sentenced to CCOs in February and August 2017 - both of which were breached.  This has been your longest period in custody though you did, in February 2017 undergo a two week stint in prison and as previously remarked, one month in August last year.  This latter sentence related to you breaching the same intervention order the subject of these charges.

15Ms Latif viewed you as lacking in ability to deal with life stressors, and that your only coping mechanism is drug use.  She opined that this was consistent with you having an Adjustment Disorder with depressed mood - that these symptoms develop in times when you are stressed or under pressure.  She also recognised that you continued to display symptoms of your childhood condition Attention Deficit-Hyperactive Disorder, though did not regard those as prominent. 

16Psychometric testing by Ms Latif revealed you to be experiencing mild levels of anxiety and stress, and moderate levels of depression. 

17Ms Latif expressed the view that you were significantly depressed at the time of the offending, due to your poor adjustment skills and your significant drug and alcohol use.  She opined your mental health and drug issues contributed to your conduct which she described as impulsive, unpredictable and lacking in consequential thought. 

18It was not suggested that your drug use was a mitigating factor or that it excused your behaviours, however it does provide some explanation for it.

PLEA OF GUILTY

19You have pleaded guilty to these matters at an early opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  None of those present in the bungalow were required to give evidence and relive this traumatic incident.  You have saved the cost of running a trial to the community and the Court. 

20I accept that your plea is also indicative of remorse, however as noted in the material you have limited capacity to have insight into your behaviour.

Prospects for Rehabilitation

21Your counsel submitted that your prospects for rehabilitation were fair.  It was submitted that you should engage in inpatient drug treatment, then drug monitoring and supervision/treatment to address your drug issues.  Further, that you should engage in regular and consistent psychological treatment as recommended by Ms Latif.  It was submitted that with such supports and assistance, you will be better able to cope in the community.  Issues of housing need also to be addressed as does the interaction or relationship with Ms Swindon and your children - clearly there is a need for some stability in your life in relation to both accommodation and family. 

22As noted in Ms Latif's report: 

'These recommendations have been carefully considered to not only help [you] manage [your] psychological presentation more effectively, but to also reduce the risk of recidivism in the future.  [You have] engaged little professional supports previously.  It is evident that [you] strongly lacks adaptive coping skills, and these can only be learned through ongoing psychological treatment.  Without these skills, [you] will continue to suffer depression and likely relapse into drug use as a way of medicating [your] symptoms.  This will significantly increase [your] likelihood of reoffending in the future and [your] risk of reoffending without treatment is high.'

Sentencing submissions

23Your counsel submitted that you should be placed on a combination sentence particularly since you have already served about 9 months.  It was submitted that a CCO should be imposed with conditions in accordance with the recommendations made by Ms Latif.  The prosecution submitted that I should impose a term of imprisonment involving a head sentence and non-parole period.

24I ordered an Extended Pre-Sentence Assessment from the Office of Corrections to determine your suitability for a CCO at the completion of a term of imprisonment - I regarded a thorough assessment as important particularly given your poor history and lack of engagement or compliance with previous orders.  It is apparent both from the report from Corrections and from Ms Latif that you require a high level of support to maintain your drug abstinence, and psychological help to deal with everyday stressors and basic living needs.  I am uncertain of the status of your relationship with Ms Swindon - the most recent report of Corrections suggests that you plan on living with a friend in Werribee on your release.  Your counsel recognised that you need to work on your relationship with Ms Swindon.  You are likely to require assistance with housing on your release from custody and with managing day to day tasks.

25Although with some hesitation, the Corrections officer found you suitable for a CCO - her reluctance related to your criminal history and non-compliance with previous Court orders.  However, given your age, the length of time that you have already spent in custody and that you have been substance free during your time of incarceration, she regarded you as suitable for a CCO but with stringent conditions.

26This offending was serious - the armed robberies were clearly a step up in the kind of offending in which you had previously engaged - the intervention order was in place for the protection of others and you breached it a number of times.  Sentencing principles of specific and general deterrence have application, as does just punishment, denunciation and protection of the community.  These must be balanced with matters in mitigation including your plea, age and other personal circumstance.  I regard this as likely to be your last opportunity to make good - you are still relatively young and with intensive supports to address your drug, mental health, offending and relationship issues, as long as you remain compliant and accept treatment, you may succeed.  You should be aware that if you continue to use drugs and become involved in offending on your release and whilst under a Court order, you will be breached and come before me for me to re-sentence you.  Further, as indicated in the Corrections report I propose to include a judicial monitoring condition so that I can maintain a level of supervision on you to ensure that you are making progress.  Additionally you will be required to comply with all the conditions that are recommended in the report.

27If you could please stand.

28In respect of Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of 12 months and to complete a Community Correction Order at the expiration of that period of imprisonment for two years.

29In respect of Charge 2, armed robbery, you are convicted and sentenced to a term of imprisonment of 12 months and to complete the same CCO.

30In respect of Summary Charge 7, you are convicted and sentenced to a term of imprisonment of one month.

31In respect of Summary Charge 8, you are convicted and sentenced to a term of imprisonment of one month.

32That then makes a total effective sentence of 12 months imprisonment.  At the completion of that sentence you are required to comply with the conditions of a Community Correction Order for a period of two years.

33The conditions in respect of the CCO relate to supervision, judicial monitoring, drug treatment, alcohol treatment, mental health treatment, and offending behaviour programs.

34You will be required to return to court in three months' time to attend for Judicial Monitoring on 14 February 2020.

35I just want to check that that date is correct given the time.  Yes.  You should be released after 12 months from the time that you were remanded, which is 12 January, is that right?

36MS HOLMES:  Yes, Your Honour.

37HER HONOUR:  Yes.  So it will be about a month after you have been released that you will be required to come back before me for judicial monitoring.  I do not know if you are aware of all the material that has been provided in relation to you, Mr Hampton, but it was apparent to me that you need a high level of assistance to function properly in the community and you need to accept that and comply with it in order to remain out of custody.  Do you understand that?

38OFFENDER:  Yep.

39HER HONOUR:  Okay.  I declare - what is the PSD today, please?

40MS HOLMES:  Three hundred and seven days, Your Honour.

41HER HONOUR: Thank you. I declare PSD of 307 days in relation to your sentence. Pursuant to s.6AAA of the Sentencing Act, I would have imposed a sentence of three years' imprisonment with a non‑parole period of 18 months if you had not pleaded guilty to these matters.  Are there any other orders I need to make?

42MS HOLMES: There are no other orders sought, Your Honour. There is just one thing that I need to raise. Your Honour may recall that on the last occasion that there was discussion in relation to the structure of the sentence given that this is a category 2 offence and under s.5HH of the Sentencing Act, the court is required to make a custodial order, but is not able to impose a combination sentence, and Your Honour questioned me as to whether or not you could impose a straight sentence in relation to the indictable matters and impose a CCO in relation to the related summary offences.

43HER HONOUR:  Yes, no.  I understand that.  Yes.

44MS HOLMES:  And I confirmed with the Crown prosecutor that there was no impediment to Your Honour doing that.

45HER HONOUR:  Yes.

46MS HOLMES:  But that a combination sentence was not available.

47HER HONOUR:  All right.  So what I need to do is to amend the sentence that I have just declared to be 12 months for the armed robbery.

48MS HOLMES:  Yes.

49HER HONOUR:  Twelve months for the second armed robbery.

50MS HOLMES:  Yes.

51HER HONOUR:  And then one month with the CCO for the breaches.

52MS HOLMES:  Yes, Your Honour.

53HER HONOUR:  Yes. 

54TIPSTAFF:  (Indistinct words) to correct that, Your Honour.

55HER HONOUR:  Yes, I am sorry.

56TIPSTAFF:  That is all right.

57HER HONOUR:  I had forgotten that aspect of the sentencing structure.  Yes, thank you.

58TIPSTAFF:  Is this your signature?

59OFFENDER:  Yep.

60HER HONOUR:  Thank you.  I will just stand down.

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