Jamie Hancock v The Queen
[2020] VSCA 101
•30 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0055
| JAMIE HANCOCK | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 April 2020 |
| DATE OF JUDGMENT: | 30 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 101 |
| JUDGMENT APPEALED FROM: | DPP v Hancock (Unreported, County Court of Victoria, Judge Meredith, 12 March 2020) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Criminal damage, common assault and trespass – Sentenced to total effective sentence of 2 years and 3 months, with non-parole period of 15 months – Manifest excess – Whether sentence manifestly excessive – Totality – Whether principle of totality infringed – No reasonable prospect that total effective sentence would be reduced – Application for leave to appeal refused – Criminal Procedure Act 2009, s 280(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connelly | Papa Hughes Lawyers |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The applicant pleaded guilty in the County Court to two charges of criminal damage,[1] one charge of common assault,[2] one charge of refusing to leave a private place after being warned to do so by the occupier,[3] and one charge of committing an indictable offence while on bail.[4]
[1]Contrary to s 197 of the Crimes Act 1958.
[2]Contrary to common law.
[3]Contrary to s 9(1)(f) of the Summary Offences Act 1966.
[4]Contrary to s 30B of the Bail Act 1977.
On 12 March 2020, following a plea hearing, the applicant was sentenced as follows:
Charge on indictment
Offence
Maximum
Sentence
Cumulation
1 Criminal damage 10 years 9 months 3 months 2 Common assault 5 years 18 months Base 3 Criminal damage 10 years 12 months 4 months Summary charge 8 Refusing to leave a private place (trespassing) 25 penalty units or 6 months 4 months 2 months Summary charge 10 Committing an indictable offence while on bail 30 penalty units or 3 months 1 month — Total Effective Sentence 2 years and 3 months Non-Parole Period 15 months Pre-Sentence Detention Declared 404 days Section 6AAA Statement 3 years, with a non-parole period of 2 years
The applicant now seeks leave to appeal on the following grounds:
1.The sentence for each of charges 1, 2, 3 and the related summary offence of trespassing was manifestly excessive in light of:
(a)the maximum penalty;
(b)the objective gravity of the offending;
(c)the applicant’s plea of guilty;
(d)the applicant’s relative youth; and
(e)the applicant’s prospects of rehabilitation.
2.The orders for cumulation breached the principle of totality and produced a total effective sentence that was manifestly excessive.
Circumstances of the offending
In May 2018, Fiona Bartlett and her daughter, Renee Fraser, lived together in a house in Wendouree, owned by the Uniting Church in Australia Property Trust. The applicant’s offending occurred on 1 and 2 May 2018. The victims of his offending were Ms Bartlett, Ms Fraser and the Trust.
On 1 May 2018, the applicant came to the house and demanded Ms Bartlett give him a laptop which he claimed belonged to a former girlfriend. Ms Bartlett told the applicant that she did not have the laptop, and the applicant left without incident.
At about 10:00 pm that night, Ms Bartlett and Ms Fraser were at home when they heard a loud knocking on the front door. The applicant yelled ‘It’s Jamie, open the fucking door’. When the door was not opened, the applicant kept ‘bashing the door’. He made demands for the laptop and threats against Ms Bartlett, before leaving with others in a car. As a result of the bashing of the front door, a large hole was made in the door (charge 1 – criminal damage).
A few minutes later, the applicant sent a text message to Ms Bartlett stating, ‘Yous have till midnight to have my money or that door will not keep me out I promise you that’. Ms Bartlett and Ms Fraser then decided to lock all the doors and sleep in the lounge room.
At approximately 6:00 am the next morning, Ms Bartlett and Ms Fraser were woken by further bashing on the front door. The applicant gained entry to the house through the front door. Ms Bartlett and Ms Fraser barricaded the lounge room door with a coffee table, in an attempt to prevent the applicant from entering the room they were in as they were terrified by his actions. The applicant yelled threats, demanded money for the laptop, and refused to leave when asked. It was only after he was told that police had been called that he left, smashing a window at the front of the house (charge 2 – common assault; summary charge 8 – trespass; charge 3 – criminal damage).
At the time of his offending, the applicant was on bail for charges including dealing with property suspected of being the proceeds of crime, theft and recklessly causing injury. The offences of criminal damage and common assault were the offences which founded the remaining charge (summary charge 10 – committing an indictable offence while on bail).
Applicant’s background
At the time of his offending, the applicant was 25 years of age. He was 27 at the time of sentencing. He was educated until year 10, before then commencing work as a labourer, and later a machine operator.
The applicant’s father introduced him to ‘Ice’ (methylamphetamine) when he was 17 years of age. Subsequently, he moved to Queensland with his then girlfriend, so that they could be together and away from families that did not support their relationship. The applicant’s girlfriend, however, became unhappy and returned to Geelong. The applicant returned a little later.
On his return from Queensland, the applicant found that his mother and father had split up. The applicant’s mother had taken up with a friend of the applicant. He was shaken by this development. The applicant again took up using ‘Ice’ and committed offences to obtain funds to be able to purchase the drug.
The applicant has an extensive criminal history going back to 2013 for dishonesty and drug-related offending. His prior convictions include convictions for burglary, possessing a controlled weapon without excuse, aggravated burglary, intentionally causing injury, reckless conduct endangering life, intentionally damaging property, breaching a community correction order (‘CCO’) imposed in 2015, and failing to answer bail. At the time of the present offending, the applicant was serving an 18-month CCO that had been imposed in 2016, but which commenced operating in September 2017.
On 22 January 2019, the applicant was sentenced to an aggregate term of imprisonment of nine months for the offences for which he was on bail when he committed the present offending. As the judge observed,[5] at the time of sentencing, the applicant had been in custody since his arrest on 2 May 2018 for the present offending.
[5]DPP v Hancock (Unreported, County Court of Victoria, Judge Meredith, 12 March 2020) (‘Reasons’), [23].
Sentencing reasons
After setting out a summary of the applicant’s offending, the judge referred to the fear, concerns and anxiety expressed in the victim impact statements of Ms Bartlett and Ms Fraser.[6] The judge noted that, commendably, in her witness statement, Ms Bartlett said that she held no ill feelings for the applicant, prayed that his life would be good, and asked the judge to take into account that the applicant ‘is a young man and being incarcerated for too long is not always the best’.[7]
[6]Ibid [15]–[17].
[7]Ibid.
As to the seriousness of the applicant’s offending, the judge said:
As an example of offending, your culpability is marked by your persistence, the fact that your victims were relatively speaking defenceless, and that your offending occurred at their home. Viewed in isolation, the damage comparatively speaking is toward the low end of the range. However, the circumstances in which you committed these crimes elevate their seriousness. You were abusive, threatening and no doubt frightening to your two female victims. You were resorting to the use of force and threats to address your grievance.[8]
[8]Ibid [18].
Next, the judge dealt with the applicant’s criminal history and the fact that the applicant was the subject of a CCO at the time of the offending.[9] The judge then noted the fact that the applicant had been sentenced in January 2019 to a total effective sentence of nine months’ imprisonment, and that he had been in custody since 2 May 2018, saying:
I will declare the lesser term of 404 days served by way of pre-sentence detention. However, as I have been at pains to say, I do have regard to the fact that you have been in custody since 2 May.[10]
[9]Ibid [20]–[22].
[10]Ibid [23].
The judge noted that the applicant had returned negative urine screens, and undertaken a range of courses of study, while in custody — saying that it was encouraging that the applicant had taken these positive steps.[11]
[11]Ibid [24].
The judge then referred in some detail to the applicant’s background, and a submission by his counsel that, upon his release, the applicant has ‘plans to leave the jurisdiction and make a fresh start’.[12]
[12]Ibid [25]–[32].
The judge assessed the applicant’s prospects of rehabilitation as being ‘somewhat guarded’. He said, however, that he was cautiously optimistic as the applicant appeared to be gaining an insight about ways in which he might maximise his chances of ‘turning [his] back on the drug world’.[13]
[13]Ibid [33].
The judge noted that the applicant pleaded guilty ‘fairly late in the piece’, having run a contested committal. The judge accepted, however, that the applicant’s plea of guilty had facilitated the course of justice and also evidenced some remorse.[14]
[14]Ibid [34].
The judge then said:
In determining what the appropriate sentence in this matter is, any sentence which I impose must of necessity address fundamental sentencing aims such as punishment, deterrence, both specific and general, your rehabilitation, the court's denunciation of your conduct and the protection of the community, matters such as the seriousness of your offending, your culpability for it, your
personal circumstances and those of your victims must be weighed in the balance.
The interests of the community in deterring and denouncing your conduct, along with the interest of the community in seeking to ensure that as far as possible you are rehabilitated must all be weighed in the balance.[15]
[15]Ibid [35]–[36].
The judge then referred to a submission by counsel for the applicant that a sentence which amounted to time already served should be imposed.[16] The judge said, however, that in his view a term in excess of time served, with a non-parole period, was required to address the need for both general and specific deterrence.[17]
[16]Ibid [37].
[17]Ibid [38].
The judge concluded his sentencing remarks by saying that the sentence he would fix would not be so great as to destroy the applicant’s aims of relocating interstate, but that the applicant’s personal rehabilitation was only one of the matters that he had to consider.[18]
[18]Ibid [39].
Parties’ submissions
In ground 1, the applicant submits that the sentences on each charge were manifestly excessive in light of the maximum penalties, the objective gravity of the offending, his plea of guilty, his relative youth and his prospects of rehabilitation.
In relation to the objective gravity of charge 1, the applicant noted that he identified himself, and identified the purpose for his attendance at the house; he did not gain entry; he left of his own accord; and the damage was, as the judge observed, ‘comparatively speaking … toward the low end of the range’.[19]
[19]Ibid [18].
With respect to charge 2, the applicant noted that no actual force was used on Ms Bartlett or Ms Fraser; again, the applicant had identified himself and the purpose for which he attended; he did not successfully enter the lounge room, and therefore was never in the same room as Ms Bartlett and Ms Fraser; and, when advised that police had been requested, left the property.
As to charge 3, the applicant noted that the damage ‘was again minor’, consisting of the breaking of a window at the front of the house as he left the property.
In relation to all charges, the applicant submitted that the objective gravity of each charge did not justify the sentences that were imposed. This was particularly so given his plea of guilty, relative youth, background and attempt at rehabilitation. The applicant made specific complaint that the sentence imposed on charge 2 (common assault) was 30 per cent of the maximum, and the sentence imposed on summary charge 8 (trespass) was two-thirds of the maximum.
In relation to ground 2, the applicant submitted that there was ‘a significant overlap of time and circumstances between the charges’. While some degree of cumulation was warranted, the orders for cumulation breached the principle of totality. A total of nine months cumulation on an already ‘severe base sentence of 18 months’ did not properly reflect the overall criminality of the offending. The totality problem was exacerbated by sentencing the applicant to a total effective sentence of 2 years and 3 months in addition to the 9 months imposed in January 2019.
In response to the applicant’s submissions, the respondent contended that the application for leave to appeal should be refused because neither ground is reasonably arguable. The sentences imposed were justified by the objective gravity of the offending, committed late at night and in the early hours of the morning against two vulnerable victims in their home. The overall circumstances of the offending justified the conclusion that the objective gravity of the offending was high.
The respondent submitted that the orders for cumulation did not breach the principle of totality; nor did they lead to a sentence which could be said to be manifestly excessive. His Honour appropriately recognised each of the mitigating matters relied upon by the applicant. The sentences and orders made by the judge were all within range. The contrary was not reasonably arguable.
Consideration
The judge accepted that the damage the applicant did to the door on the night of 1 May was, ‘comparatively speaking’, ‘toward the lower end of the range’. The same may equally be said of the damage caused by the applicant when he broke the window some hours later. The fact that the damage to the door and the window was at the low end of the range does not, however, mean that the applicant’s offending did not fall to be properly regarded as objectively serious.
The charges to which the applicant pleaded guilty have to be seen in the context of the entirety of his offending on the night and on the following morning. The judge was entirely correct to say that the circumstances in which the applicant committed his crimes elevated their seriousness. The offending occurred in the home of his two female victims, where they were entitled to feel safe. The applicant was abusive, threatening and no doubt frightening to Ms Bartlett and Ms Fraser.
With the possible exception of the sentence on summary charge 8 (to which we will return below) each of the sentences imposed by the judge were well open having regard to the circumstances of the offending and the applicant’s personal circumstances. General deterrence was a significant sentencing consideration and, in light of the applicant’s poor criminal record, specific deterrence was as well. The fact that the applicant committed the offences while the subject of a CCO for other offending was also an aggravating circumstance. Additionally, the plea of guilty was a late one and the applicant’s prospects of rehabilitation were assessed (correctly in our view) as being ‘somewhat guarded’.
The sentence of four months on summary charge 8 was two-thirds of the maximum term of imprisonment for that offence. On a plea of guilty, it must be said that that sentence was particularly high. That said, for the reasons we have already given, we are not persuaded that the sentence was wholly outside the permissible range.
The applicant was sentenced to a total effective sentence of 2 years and 3 months, with a non-parole period of 15 months. When one looks at all of the circumstances of the applicant’s offending and the matters personal to him (including the 9 month sentence that the applicant was required to serve in 2019), one is simply unable to say that the sentence imposed breached the principle of totality. In our view, it was well open to the judge to impose the sentence he imposed. Moreover, there is no reasonable prospect that this Court would reduce the total effective sentence even if we concluded that there was an error in relation to the sentence imposed on the charge of trespass.[20]
[20]See s 280(1)(b) of the Criminal Procedure Act 2009.
Conclusion
The application for leave to appeal will be refused.
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