Regina v Michael Dean Hamilton

[2007] NSWDC 350

CITATION:	Regina v Michael Dean Hamilton [2007] NSWDC 350
HEARING DATE(S):	28 November 2007
JUDGMENT DATE:	28 November 2007
JURISDICTION:	District Court of NSW
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Appeal allowed. 9 months imprisonment suspended on the condition that the appelllant enter into a bond under s12 of the Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	Criminal law - Sentence appeal - Assault occasioning actual bodily harm - On conditional liberty at time of offence - Youth - Bipolar disorder - Time in custody - Remorse - Good chararcter - Guilty plea
LEGISLATION CITED:	s59(1) Crimes Act 1900 ss 5, 12 Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Michael Dean Hamilton
FILE NUMBER(S):	07/52/0158
SOLICITORS:	Mr O'Connor for the appellant Ms Mudge for the DPP

SENTENCE

1. On the afternoon of Monday, 27 November 2006, Michael Hamilton had been drinking. He was drunk and stressed. He came upon Brendan Meares in the street. Mr Hamilton was in a car. For some reason, they started arguing. Mr Hamilton, having grabbed Mr Meares by the scruff of the neck yelling, "What is your fucking problem?", punched Mr Meares with his right fist to the left temple area. The stunned Mr Meares was standing there when Mr Hamilton repeated the assault, this time punching him in the face causing his nose to bleed.

2. Mr Hamilton came before the Local Court charged with assault occasioning actual bodily harm. This is an offence contrary to s 59(1) of the Crimes Act 1900 . The learned magistrate took a dim view of what had happened. He sentenced Mr Hamilton to 9 months imprisonment with a non-parole period of 6 months. I can understand that sentence because Mr Hamilton has been before the Courts before.

3. For a young man who has just turned twenty, he does not have a good record. He committed various offences such as theft before he was eighteen and was dealt with by the Children's Court. More significantly, since he has turned eighteen he was convicted of a common assault in 2005 and was given the benefit of a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 . He breached that bond. He was called up and received a 100 hours community service order. In addition, he was in 2006 convicted of contravening an apprehended domestic violence order. He got another community service order. He was convicted of larceny in May 2006 and, significantly, received another s 9 bond. That bond was for a period of 2 years.

4. It follows that at the time Mr Hamilton took it upon himself to assault Mr Meares, he had been extended conditional liberty by the justice system. The magistrate at Inverell Local Court, in sentencing him for larceny, had given him a chance and released him on the bond as I said.

5. Mr Hamilton has appealed to me against the sentence imposed for the assault on Mr Meares. Mr O'Connor, who appears for Mr Hamilton, asks for a s 9 bond. As a fall-back position, he asks for a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act. As a last resort, he asks for periodic detention.

6. He put his client in the witness box. His client gave evidence about a number of things. The following were significant. First, he explained the offence by drink and stress. Secondly and significantly, he went to prison as a result of the magistrate's order. He commenced serving his sentence. He spent some 17 days in prison and was moved about the State to different correctional centres. He spent time in Tamworth, Cessnock, Parklea, Bathurst and Oberon. After 2 weeks he decided he would appeal from the sentence and he was granted bail.

7. The period of 17 days obviously had a significant impact upon him. When asked by his counsel about it, he broke down and cried in the witness box and was clearly upset. He explained about receiving threats in prison and being very scared. Another thing he mentioned in evidence is a diagnosis which had been made around July 2007, that is half a year after the offence, of bipolar disorder. I accept his evidence that he has been so diagnosed and is being treated for that condition.

8. He has a partner and they have a 2 year old son. Mr Hamilton lives in Glen Innes with his parents and his partner lives separately in Glen Innes looking after their son. He is still friends with the victim and could not explain why this assault occurred. Other evidence presented by Mr O'Connor on behalf of his client include character references which I have read.

9. Mr Hamilton clearly has a good work history and is well regarded as an employee. There is a letter from the victim, Mr Meares. The only part of that letter to which I attach some weight is that Mr Meares records that Mr Hamilton was sincerely apologetic about what happened. I accept that because Mr Hamilton confirmed that in evidence in the witness box, and the police facts tendered by the prosecution record that Mr Hamilton approached Mr Meares and apologised for assaulting him. Evidently his first apology was when they were in hospital after the event. Mr Hamilton was in hospital because he hit Mr Meares so hard that he fractured some bones in his hand.

10. There is a letter from Mr Meares' current employer. He has recently secured employment in Guyra at a tomato farm. The prosecution tendered a pre-sentence report. It records that a community service order is not available because Mr Hamilton has been convicted of an offence of violence. It does record, however, that he is eligible and has been assessed as suitable for a periodic detention order. He would serve that in the periodic detention centre at Tamworth.

11. The question for me is what is the appropriate sentence to impose upon Mr Hamilton. As I said, Mr O'Connor's first proposition was that I should give him the benefit of a bond. I do not accept that submission despite the advantage, which Mr O'Connor says, that it will require supervision. I reject the submission for two reasons: the first is that Mr Hamilton has had the benefit of bonds before from the court, and the second is that he has in the past breached bonds and, even more significantly, when committing this offence, he was clearly in breach of the good behaviour bond which he received from the court for larceny.

12. A community service order is not an available option. Mr Hamilton's record indicates the need for personal deterrence to feature in his sentence.

13. To my mind, I am left with little option but to impose a term of imprisonment. The question for me is how that term of imprisonment should be served. In accordance with s 5 of the Crimes (Sentencing Procedure) Act , I am not satisfied, having considered alternatives, that no penalty other than imprisonment is appropriate. In my opinion, either periodic detention or a suspended sentence is appropriate. I say this having reached the view, as I said, that a sentence of imprisonment is the only option which is left.

14. I do not regard full-time imprisonment as appropriate partly because of Mr Hamilton's age; he is just 20. I also take into account the fact that he has spent 17 days in full-time imprisonment and it has had a significantly deterrent effect upon him. I regard his prospects of rehabilitation as good. He has ceased drinking alcohol almost totally. He is clearly a good employee and is currently in employment. He has good references and appears determined to deal with his diagnosed condition of bipolar disorder.

15. He has pleaded guilty to this charge and he will receive the benefit of that plea. Given the fact that he is a young man with a young family and is in regular employment, I regard periodic detention as the less desirable option and a suspended sentence as a more desirable option as the way in which he should serve his sentence of imprisonment. I would regard a sentence of 12 months as appropriate but because of his plea of guilty, and other subjective facts, I would reduce that to 9 months.

16. I impose a sentence of imprisonment of 9 months on you. I make an order suspending the execution of the whole of the sentence for the whole of the period. I make that order under s 12(1) of the Crimes (Sentencing Procedure) Act 1999. I direct that you be released from custody on condition that you enter into a good behaviour bond for a term of 9 months. The good behaviour bond will have the following conditions:

1) you will appear before the court if called upon to do so at any time during the bond,
2) during the term of the bond you will be of good behaviour,
3) you must notify the court of any change in your residential address,
4) you are to subject yourself to supervision by the Probation and Parole Service and accept their reasonable directions in particular relating to the treatment of your bipolar disorder. You are also to accept any reasonable directions which the service gives about drug and alcohol rehabilitation.

I direct you to report to the office of the Probation and Parole Service at Glen Innes on or before next Friday, 5 October 2007.
oOo