Director of Public Prosecutions v Hemphill

[2017] VCC 647

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01885

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN HEMPHILL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 May 2017
CASE MAY BE CITED AS:	DPP v Hemphill
MEDIUM NEUTRAL CITATION:	[2017] VCC 647

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr J. Anderson

HIS HONOUR:

1Damien Hemphill, you have pleaded guilty to three charges of theft, one charge of burglary and one charge of handling stolen goods.  Theft and burglary carry maximum penalties of ten years' imprisonment, handling stolen goods, 15.  You also pleaded guilty to two uplifted summary matters, one of committing an indictable offence on bail and one of breaching a bail condition.  Each of those crimes carries maximum penalties of three months' imprisonment.

2You are 42 years of age.  You pleaded guilty to a settled indictment and I therefore regard that as being at an early opportunity.  Whether you are remorseful or not I have got no idea but I will give you the benefit of the doubt and you certainly get the utilitarian benefit of that plea of guilty.

3You do have a significant number of prior convictions and you have been gaoled before.  You have now actually been in custody for something approaching, as I calculate it, 13 or 14 months, and obviously there was a period where you underwent a sentence of five months where you have lost the opportunity for concurrency.  A summary of the offending has been tendered and that can just simply remain on the court file.

4What you were in effect doing was one of shoplifting, one of burglary where you gained and spent, it would appear, around about $2000 in cash.  All other property taken during that burglary and theft has been recovered and you stole from cars, and again, that material was recovered.  When you were arrested you were found to have other items on you which were clearly stolen goods.

5Your circumstances are that you have been a user of drugs for a long period of time.  Encouragingly, prior to these matters or prior to the matters that were dealt with in the Magistrates' Court, you had been five years without offending.  I am told that during that period of time you were the carer of an elderly man who suffered from dementia and has now gone to Strzelecki House in Mirboo North.  When that occurred obviously your structure and the way in which you were existing fell apart and you relapsed into drug use and, accordingly, all this offending took place.

6You are now 42 and I am trusting that over the last year or so you have not been using drugs whilst you are inside.  There is no point here of a CCO or any such disposition.  In my view, and it ultimately was settled, and I make no criticism of anybody in relation to that, these matters could easily have been dealt with in a Magistrates' Court and the time that you have served already, bearing in mind the lost opportunity for concurrency, would have satisfied any Magistrate or most Magistrates, I would have thought.

7In any event, the prospects of your rehabilitation are up to you.  The risk of you reoffending if you are using is going to be high but I think you are old enough to know that if you keep reoffending you will keep getting locked up.  It is really a matter for you whether you want to spend the rest of your life in gaol or not. 
I do not really need any other matters personal to you.  The circumstances are pretty simple.

8In all the circumstances, bearing in mind general and specific deterrence as well as punishment, my view is that the offending before me warrants an aggregate gaol sentence of nine months and I direct that 258 days be reckoned as having been served under that sentence.

9Insofar as s.6AAA is concerned I say but for our plea of guilty I would have sentenced you to be imprisoned for a period of 12 months.  Are there any other orders I have to make?  Ms Guedson?

10MS GUESDON:  No, just the disposal orders but Your Honour has already indicated that.

11HIS HONOUR:  I have already made that, yes.

12MR ANDERSON:  Nothing else. - - -