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[2016] VCC 688
General information, not legal advice.
County Court of Victoria
2016-05-20
Original judgment source is linked above.
1 David Hasenkamp[1], you have pleaded guilty to one charge of attempt to pervert the course of justice. The maximum penalty for this offence is 25 years' imprisonment. I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.
2 Briefly, on 18 September 2015 you allegedly committed an assault on your
3 You were on parole at the time, having been released on 16 April 2014. The total period was 704 days. When the alleged offending occurred you had been on parole for 522 days.
4 Your partner made a statement to police about what had occurred. As a result, you were charged and then bailed on a number of summary offences. However, because the offences breached your parole, you were detained to appear before the Parole Board on the 21st of September 2015. The Parole Board cancelled your parole and reinstated the period of 704 days to be served. As at today's date you have served 246 days of that time.
5 Whilst in custody you were subject to the ARUNTA recording of your phone calls. Each of your phone calls were prefaced by a recorded reminder that they were being recorded.
6 Between the 22nd of September and the 27th of September 2015 you made numerous phone calls to Ms Halloran, asking her to retract her original statement and tell the police and the Parole Board that she had lied in her statement.
Ms Halloran attended at the Police Station on the 11th of October 2015 and provided a statement to the effect that the assaults did not occur.
7 You were charged by police with this offence on the 20th of January 2016 and no interview was conducted.
8 You indicated a guilty plea prior to the committal mention on the 14th of April 2016. I am satisfied you entered an early plea of guilty.
9 Mr Hasenkamp, you have pleaded guilty to a serious offence. The maximum penalty indicates how seriously this offence is regarded by the legislature. Our system of justice looks severely upon those accused who contact a witness with the intention of persuading the witness to change their evidence. Such conduct strikes at the heart of our justice system. General deterrence is a paramount sentencing consideration in a case of this type. Denunciation and just punishment are also relevant sentencing considerations. Given your criminal history, specific deterrence and protection of the community are also relevant sentencing considerations.
10 Your counsel raised a number of matters in mitigation. First, you have entered an early plea of guilty. Your plea of guilty has saved the victim from the trauma of giving evidence and avoided the cost and expense associated with a criminal trial. I am satisfied that you are remorseful for your behaviour. You will be given credit for all these matters. Your counsel also indicated that you will be pleading guilty to the outstanding summary offences.
11 Second, your offending is at a low level for offences of this type. Whilst you made repeated contact with your partner over a number of days, you did not make threats towards her or offer her money. Rather you used emotional pressure to try and achieve your objective. The offending was certainly unsophisticated. You knew your phone calls were being recorded and you persevered nonetheless.
12 Third, since your arrest you have spent 246 days of 704 days in custody on breach of parole. You have not been considered for further release while this charge has been pending. In addition, because you committed this offence whilst on parole, any imprisonment term must be served cumulatively upon any other sentence unless there are exceptional circumstances. Your counsel quite properly conceded that there are no exceptional circumstances in this case. However, given the fact that your parole has been cancelled I must apply the totality principle to the whole sentence you might have to serve. When determining whether the total sentence you must serve is proportionate to the totality of the criminality, the Court of Appeal has said that I must consider the nature of the parole offences and the length of the parole sentence. I must look at the totality of the criminal behaviour and ask myself what is the appropriate sentence for all the offences. I must then consider whether the sentence imposed for the subsequent offending and which breached the parole has produced an overall result out of proportion to the criminality represented by the sets of offences. If the total sentence is an unjust or inappropriate measure of the total criminality involved, the new sentence might be moderated so that the total of the sentences to be served does not offend the totality principle. In conducting this exercise I must assume that you will be required to serve the whole of the balance of the cancelled parole sentence.
13 Fourth, in 2011 you were diagnosed with bipolar disorder. No reports have been presented on how this condition is being addressed. However, given the unsophisticated nature of this offending, it is likely that your illness contributed to the offending.
14 Fifth, you commenced a relationship with the victim in 2011 and you have two young children together. I accept that your love for your partner and children offer an incentive to rehabilitate. However, given your past history of offending and your past inability to regulate your behaviour, I am not optimistic about your prospects of rehabilitation. I do accept that it would be beneficial to you if at some stage in the future, you were offered support and supervision within the community.
15 Based on the matters that I have just presented, your counsel submitted that the appropriate sentence in this case would be a sentence in terms of months and not years. He also reminded me that at the conclusion of such a sentence you will remain subject to the Parole Board for a significant period either serving out the parole or under the Board's supervision in the community.
16 Mr Hasenkamp, there is great force in your counsel's submission. Will you stand please.
17 You will be convicted and sentenced to 6 months' imprisonment. I make an order that you have served 3 days by way of pre-sentence detention. Had you pleaded not guilty and been found guilty after trial I would have sentenced you to a term of 18 months' imprisonment with a minimum term of 12 months.
18 Pursuant to s.464ZF(2) of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from your mouth or a blood sample in accordance with the relevant provisions of the Crimes Act and you must undergo that procedure until a sample of sufficient standard is obtained for placement on the database. I make this order because of the seriousness of the offending, your prior convictions, the order is not opposed and the granting of the order is in the public interest. I must also explain to you that if you do not cooperate with the authorities in the taking of that mouth scraping, then reasonable force can be used to obtain the sample or alternatively a blood sample can be obtained. Do you understand all of that?
20 All right. Well, Mr Hasenkamp, it is effectively a sentence on this charge of six months.
22 HIS HONOUR: Six months from today less three days that you have served. This sentence will suspend the parole period that you have been serving and then of course it will be matter for the Parole Board what they do at the end of the six months. That is not something that I can take into account and you have still got to have the summary matters resolved. Is that all clear?
24 HIS HONOUR: All right. Is there anything else gentlemen?
26 MR MOGLIA: No, Your Honour. As Your Honour pleases.
DPP
Hasenkamp