Director of Public Prosecutions v Hamstead

[2017] VCC 1837

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00828

DIRECTOR OF PUBLIC PROSECUTIONS

v

BON HAMSTEAD

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2017
DATE OF SENTENCE:	8 December 2017
CASE MAY BE CITED AS:	DPP v Hamstead
MEDIUM NEUTRAL CITATION:	[2017] VCC 1837

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr P. Tiwana	Dribbin & Brown Criminal Lawyers
For the Director of Public Prosecutions	Ms M. Stylianou	Office of Public Prosecutions

Pages 1 - 5

 

 

HIS HONOUR:

1Bon Scott Hamstead, you have pleaded guilty to one charge of rape contrary to s.38(1) of the Crimes Act 1958.  The maximum penalty for that offence is 25 years' imprisonment.

2You pleaded guilty at committal mention, and in my opinion, in this case, your early plea of guilty is properly described as a high value plea of guilty.  You have spared the victim the trauma and stress of giving evidence at committal and trial, and you have spared the community and witnesses the cost and burden of a criminal trial.  I also accept that your plea is evidence of true remorse in your case.  I have taken your plea into account in your favour in mitigation of sentence.

3You have no prior convictions, subsequent convictions, or outstanding charges.

4A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows –

5You and the victim had known each other for approximately six years prior to your offending.  She was 15 and you were approximately 20 when you met.  Your relationship was a friendship, and it was understood between you that it was not an intimate or sexual relationship.  Nevertheless, as you both grew older you would stay at one another's houses, sleep in the same bed, and share personal matters with each other.

6On 26 June 2016 you met each other by chance at the Cruze Nightclub in Mornington.  At the time you were experiencing considerable personal stress as a result of illness in your family and unexpectedly having to move house.  You were intoxicated and the victim, who had also been drinking, offered you company and support, and asked you to stay at her house.  She drove your car to her house, a short distance away, and you both arrived there at 3.41 am.  The victim's parents were asleep upstairs in their bedroom.  You both went to bed together and watched a DVD.  The victim was wearing underwear, a T-shirt and pyjama shorts.  She fell asleep, and sometime later, awoke and felt your penis penetrating her vagina.  She told you to stop and positioned herself to prevent further penetration.  At 5.36 am she sent a text message to a friend asking for help.  She became extremely angry with you, and stated:  "How dare you.  Get the fuck out of my house you filthy rapist cunt", and punched you in the face, causing you to bleed onto her bed.  Her friend arrived, and she and the victim left the premises in a car.  Shortly afterwards they were involved in a car accident, and police attended and they were taken to hospital. 

7At the hospital the victim disclosed to a friend on Facebook that she had been raped, and then disclosed the offending to a nurse. 

8The matter was subsequently reported to police, and in an interview conducted on 5 July 2016 you maintained that the sexual activity was consensual.  You were not charged until 27 January 2017, and the matter was listed for committal mention on 28 April 2017, when, as I have said, you pleaded guilty.

9I have received in evidence a victim impact statement prepared by the victim setting out the deeply harmful and traumatic effect that your offending has had on her.  The statement is extensive and expressed in very strong terms, and I accept that her life has been severely disrupted by your crime.

10Rape is clearly a most serious offence, but I accept, as was observed by Justice Bongiorno in R v Simon [2010] VSCA 66, that it compromises a wide range of criminal culpability.

11Whilst your offending, as was submitted by the prosecutor, involved a serious breach of the trust of your 20 year old friend in her home, who was asleep, it was not accompanied by the sort of other factors associated with more serious examples of the offence of rape; such as those considered by the Court of Appeal in DPP v Jurj & Miftode [2017] VSCA 37 at par 80.

12In my opinion your offence does fall at the lower end of the scale for offences of this type, although plainly less serious examples of the offence may also be identified. 

13I accept that your offending must be denounced by the court, and the sentence I impose must be calculated to deter others from offending in this way.  You must also be punished for your crime.

14I now turn to your personal circumstances.  You were born on 22 October 1989 in Moe, and are now aged 28.  Your childhood was characterised by extreme abuse, disruption and deprivation.  Your mother abandoned you when you were six months old.  You had met her only once, when you were approximately 14.  Your father was a drug addict and alcoholic who subjected you to extensive physical and emotional abuse.  He was also imprisoned throughout your childhood and formative years.  From the age of 16 you lived with a paternal aunt, and from the age of 20 you lived with a cousin.  Despite the deprivation you experienced you completed Year 12 at VCAL level, and thereafter completed an apprenticeship as an automotive electrician.  For the past four years you have worked as a delivery driver for a stockfeed company in Mornington, and I have received in evidence a reference from
Mr Michael McDonald, your employer, that speaks very highly of you.  He has become a father figure in your life and will provide you with employment and support on your release from prison.  He attended court on the two days that the matter was listed.

15I have also received in evidence a detailed psychological report of
Ms Pamela Matthews setting out your psychological profile and personal history.  As I observed during the plea hearing, it is a report of high quality, and I have placed considerable reliance upon it in my assessment of your prospects for rehabilitation.  You have demonstrated significant resilience and good character to overcome your tragic childhood.  You do not abuse illegal drugs of dependence, and although your alcohol consumption is excessive, and occasionally at dangerous levels, it has not impaired your education or work performance.  You also undertook voluntary treatment between the ages of 16 and 18 for anger management resulting from your childhood and the intrusive bad memories of it.

16Ms Matthews expresses the following opinions in her report:

"The writer is of the view that the developmental impacts of
Mr Hamstead's history of childhood abuse and neglect are significant in Mr Hamstead's offence behaviour, with lack of stable adult psychosexual relationships, alcohol use at hazardous levels, and vulnerability to psychosocial stress being the most significant of these impacts on his behaviour.  Given Mr Hamstead's quality of attachment experiences in childhood it is entirely understandable that his adult psychosexual attachments have been avoidant and ambivalent, including the psychosexually ambivalent nature of his relationship with Ms Sutherland and the boundary crossing nature of his offending.  This is not to condone or minimise his behaviour, but to understand why his behaviour occurred".

17And further:

"From a rehabilitative perspective, despite Mr Hamstead's age, the writer is of the view it would be overall psychologically damaging to place him, for any lengthy period, in an adult prison environment in which the relationships he may encounter with men will not be too dissimilar to that which he experienced with his father as a child.  Effectively the environmental attachment effects of imprisonment, in the writer's view, are likely to undermine any therapeutic gains that may be made in prison treatment programs".

18In my opinion your prospects of rehabilitation may properly be described as very good, and I do not believe that you will reoffend.  Specific deterrence is not a significant sentencing consideration in this case. 

19You have limited family support and your experience in prison will be one of further isolation.  And further, I accept that the sentence I impose in this case ought to be tailored to support your ongoing rehabilitation.

20As was recently made clear by the High Court in DPP v Dalgliesh [2017] HCA 41, I am required to have regard to all the factors referred to in s.5(2) of the Sentencing Act 1991, and it is a matter of judgment and discretion residing in the sentencing judge as to the weight to be given to those various factors in a particular case. In arriving at an appropriate proportionate sentence in this case I have approached my task in that manner.

21Furthermore, in my opinion this case requires a degree of mercy to inform the instinctive synthesis that I have undertaken in arriving at the sentence in this case. As recently confirmed by the Court of Appeal in Akoka v The Queen [2017] VSCA 214, an element of mercy runs hand in hand with the sentencing discretion.

22You fall for sentence as a first offender who has overcome a childhood of great deprivation and disadvantage.  It is tragic that you now face a term of imprisonment.  It is open to me to attach differing weight to the various sentencing factors that I must consider in fixing a head sentence and non-parole period in this case, and I have decided to fix a short non-parole period for the reasons I have already given.

23In the result, the sentence of the court is as follows –

24On the charge of rape you are convicted and sentenced to be imprisoned for five years.

25I direct that you serve two years and four months before becoming eligible for release on parole.

26I declare that you have served four days by way of pre-sentence detention.

27But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of seven years with a non-parole period of four years.

28Are there any further orders required?

29MS STYLIANOU:  No, Your Honour.

30MR TIWANA:  No.  Thank you.

31HIS HONOUR:  Thank you.  Mr Hamstead can be taken downstairs now, please.  We'll adjourn till 10 am.

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