DPP v O'Reilly, Harika & Hamann [2022] VCC 1392

DPP v O'Reilly, Harika & Hamann [2022] VCC 1392 | Case summary | Zoe

[11]

At approximately 7.15pm, you, Mr Harika sent a text message to Mr O'Reilly which read, 'are you coming down?'
That evening you, Mr Harika were at home in Lalor with your partner Leah Doody. Sometime in the evening you, Mr Hamann arrived with your girlfriend, Courtney Matthews. You all used drugs and then Ms Doody fell asleep.
Further text messages were exchanged between you, Mr O'Reilly and you, Mr Harika in which you, Mr O'Reilly sent Mr Harika your home address. The Prosecution case, which I accept, was that you and Mr Hamann picked Mr O'Reilly up sometime after 9.45pm and the three of you travelled to Craigieburn to commit the offences in this case.
On 24 September 2018 in the evening, Kevin Porter[1] and Jane Healey[2] were at home at an address in Craigieburn. A friend of theirs also lived there but was not home. Mr Porter went to bed around midnight. At around 12.30am Mr Porter's dog Villain started barking and then he heard banging noises, so he got up and went down to the laundry to investigate. Ms Healey retreated to the ensuite off the bedroom.
Mr Porter heard glass breaking and started shouting. It was apparent that intruders were trying to enter his home. He went to the laundry to try and stop them. He held the door for some time but then the blade of a makeshift sword came through the door and three intruders entered, the three of you.
You, Mr O'Reilly and you, Mr Harika wore balaclavas. Mr Porter described your balaclava, Mr Harika, as having duct tape attached. Mr Porter nominated you, Mr O'Reilly as the intruder wearing a makeshift balaclava and said you had blue eyes. According to Mr Porter you, Mr Hamann were not wearing a balaclava. You were all in possession of weapons: Mr O'Reilly you had the makeshift sword at that time with grey duct tape on the handle; you, Mr Harika had a hatchet; and you, Mr Hamann had a crowbar. Mr Porter in his evidence referred to you Mr Harika and you Mr Hamann as being older.
After gaining entry to the property, the three of you and Mr Porter moved to a more central position in the house.
Your group said to Mr Porter, 'Where's the money? Give us the money'. You also asked for his car keys and his phone. Mr Porter said he didn't know what you were talking about. You, Mr O'Reilly hit Mr Porter with the machete to little effect other than a small cut to his arm; then you, Mr Hamann took the sword from Mr O'Reilly saying, 'give it here, I'll do it properly'. You struck Mr Porter hard with the sword causing a deep cut to his arm not far from his wrist. This is the basis of Charge 2 - causing injury intentionally relating to you, Mr Harika and you, Mr Hamann and Charge 2 - causing injury recklessly to which you Mr O'Reilly pleaded guilty. Mr Porter was bleeding profusely whilst you continued to make demands for money, possessions, cars and belongings.
The three of you dragged Mr Porter into the loungeroom where you took a Play Station 4, a MacBook Pro, a Gucci tote bag containing his Louis Vuitton wallet with various personal and bank cards and $100 dollars cash. The three of you initially piled all the items on the couch but later loaded them into Mr Porter's car.
Your group then forced Mr Porter upstairs into the hallway.
You went through the wardrobes while dragging Mr Porter first into the outer study, then into Harry Dock's[3] room where you grabbed shoes, tracksuits and jumpers. You, Mr Hamann tried turning the light on with a weapon but gave up and used your hand. You had no bags, so you used bags from the house and packed them with stolen items. Frustrated by not finding valuables in the wardrobe you, Mr Hamann kicked Mr Porter in the face three or four times saying words to the effect of, 'I'm not here to play'. This is the basis of Charge 6 - common law assault. Mr Hamann you then gave Mr O'Reilly the hatchet and said, 'I am sick of this kid, ah, just cut off his toe'.
Mr Porter was then pushed and shoved up to the second floor and into the main bedroom where Ms Healey was crouching nearby in the ensuite bathroom with the door open. You, Mr Hamann appeared frustrated and threatened to kneecap Mr Porter. Mr O'Reilly, you were still scouting through the house looking for valuables.
From the main bedroom you took tracksuits, shoes, multiple gold and silver bracelets, a Rolex, a replica Rolex, some caps, an Xbox and Ms Healey's handbag containing her wallet and banking cards. This is the basis of Charges 4 and 5 on the trial Indictment and part of Charge 3 on the plea indictment against you, Mr O'Reilly where the property taken has been rolled up into one charge.
While you, Mr O'Reilly continued to search for valuables, you, Mr Harika and Mr Hamann told Mr Porter that you would take his dog Villain and you wanted $20,000 left out back by the gate if the dog was to be returned. You said that if the money was not left out, someone would come back and 'put holes' in Mr Porter. This is the basis of Charge 7 - extortion with a threat to kill. The particulars of this charge were amended during the trial to 'threat to injure', which is an alternative basis of liability in the offence section.
Overall, your group were in the main bedroom for about fifteen minutes, and in the house for a total of approximately forty minutes. From the kitchen one of you grabbed a packet of Dorito chips. You then packed everything into Mr Porter's black 2013 Chrysler sedan in the garage, along with Mr Porter's various Milwaukee tools which you loaded into the car. There was also cash in the car. This is the basis of Charge 8 on the trial indictment and part of Charge 3 on the plea indictment.
Mr Hamann you went on to say, 'If you call the cops or I see the cops here or you list your car as stolen I will not come back but I will get someone to come back and finish the job for me'.
At some stage during the incident you, Mr O'Reilly grabbed a tea towel and a glass of water for Mr Porter. In his statement, Mr Porter said this was before you left in his car. He also said you apologised about the injury to his arm.
Mr Porter said that the older men, so that means you, Mr Harika and Mr Hamann were 'in control of everything'.

[12]

Ms Healey in her evidence said that she was sleeping at the time the three of you arrived at the house. She heard a noise and then heard the dog barking at the noise. Her evidence was that she woke up Mr Porter and told him that someone was trying to get in the house. When Mr Porter left the bedroom, she ran to the bathroom. She was in her dressing gown. She closed the door of the ensuite behind her and tried to hide in a corner of the bathroom. From there she was able to hear the three of you entering, and the struggle when Mr Porter tried to keep you out. She heard Mr Porter yelling in pain and said everyone was 'kind of yelling'.
Ms Healey said that your group was asking whether anyone else was home, and Mr Porter had said that she was up in the bathroom. Soon after that, you, Mr Hamann, entered the ensuite carrying the machete. You asked Ms Healey whether she had been with an older man before. You stayed in the bathroom for some time. Ms Healey was extremely frightened. During this period, she could see Mr Porter in the bedroom sitting on the bed. She heard your group leave. She heard you asking Mr Porter for the keys to his car and asking him to fill up the bags you had with stolen property. She only left the ensuite when she heard the car drive away, and Mr Porter told her that you had left.
Mr Porter said in his evidence that once your group left, he went and checked on Ms Healey. They saw lights out the back of their residence, and they then left through the front door. They thought that your group had come back. Mr Porter said that they bumped into a friend and arrangements were made to take Ms Healey away, and then he and his friend returned to the property. By that time, police had arrived. There was also an ambulance present. Mr Porter was taken to the Northern Hospital, where the laceration to his arm and the damage to his tendons were treated by a plastic surgeon.
At 3.00am the three of you and another person you had collected on the way, Sean Ware arrived at Achilles Street in Heidelberg West - the home of Ms Varvatsoulis. You, Mr O'Reilly paid the $600 you owed her. The group also had Mr Porter's dog Villain with you at that time.
At 6.43am, due to the noise you were creating, Ms Varvatsoulis sent a text to you, Mr O'Reilly saying, 'Jake, please I'm working bro they were meant to be gone in 45 minutes' and 'I can't deal with this'. You and the others did not leave. Eventually, Ms Varvatsoulis went downstairs and again asked you all to leave.
The various tools were loaded into the stolen Chrysler. Mr Hamann then offered the dog Villain to Ms Varvatsoulis. She organised for the dog to be picked up by a friend shortly after.
At some stage you, Mr Harika arrived back at your house in Lalor and asked Ms Doody if she wanted Hungry Jacks. She said she didn't.
At 8.36am, you, Mr O'Reilly tried to ring Ms Varvatsoulis twice, but she did not answer.
At 8.48am you, Mr Hamann, in the passenger seat and you, Mr Harika, driving, were caught on CCTV in Mr Porter's Chrysler at Hungry Jacks in Bundoora. You, Mr Harika can be seen holding a gold chain belonging to Mr Porter.
At 9.15am, you, Mr O'Reilly were in the immediate vicinity of the Mount View Road, Lalor address and became aware police had attended at the address, arrested your co-offenders and located the stolen Chrysler.
You phoned a taxi to collect you from 1 Willard Court in Lalor. You were picked up at 9.29am and driven to your home address at Olympic Court, Montmorency.
Returning to the circumstances of the arrest in relation to you, Mr Hamann and you, Mr Harika: that morning, Ms Doody woke up to find Mr Hamann's girlfriend still on the couch and she heard voices in her front yard. When she opened the front door, she saw a whole lot of tools and boxes sitting there and you, Mr Hamann handed her a watch, a black purse and a plastic bag with jewellery, all of which had been stolen in the home invasion. You told her to 'put it away'. Ms Doody put the items into her handbag. You, Mr Hamann entered the house. Ms Doody noticed that you, Mr Harika had a hose out to wash Mr Porter's car which was parked in the driveway. She didn't want to know about any of this, so returned back into the house to go back to sleep.
Soon after, the police arrived and arrested you Mr Harika and Sean Ware. During the arrest you, Mr Hamann ran out of the rear of the property and attempted to avoid arrest.
You, Mr Harika were arrested at that time; you, Mr Hamann were arrested a few minutes later in a nearby street. When you were arrested Mr Hamann, you were in possession of a small amount of methylamphetamine. You pleaded guilty to this charge on a separate indictment.
At 9.39am, Ms Vartvatsoulis texted you, Mr O'Reilly asking, 'U after that key' and said that she was 'sorry' and she 'was busy'. You replied, 'What key? Krystal don't offer the dog to anyone delete the pics now'. She told you, 'The bag had the Chrysler key in it' and 'sorry the dog is gone'. You sent a further message asking, 'Where did it go? Oy its bad. Krystal, I need you to melt that quay right now.'
Ms Varvatsoulis phoned you twice over the next hour.
Approximately a week later, on 3 October 2018 at approximately 10.00am, police attended Olympic Court in Montmorency and arrested you, Mr O'Reilly. Your phone and your laptop were examined and found to contain various locations identified during the time of the offending and relevant chats/text messages in relation to the offending. Summary Charge 7 against you, Mr O'Reilly is established by your presence at Olympic Court, Montmorency in breach of a Family Violence Safety Notice that was in place relating to your mother. The notice had been served on 1 October 2018.
You, Mr O'Reilly made a no comment interview on the same day and refused to provide a DNA sample or participate in an identification parade. Mr Hamann and Mr Harika had been interviewed soon after their earlier arrests. You, Mr Hamann were unfit to be interviewed and you, Mr Harika denied being involved and said you had never left home. You, Mr Harika did take police to Krystal Varvatsoulis' place to help locate the dog Villain which police did subsequently find.
The police investigation that followed assembled, what in my opinion, was a powerful circumstantial, forensic and identification case against the three of you.

[35]

Your aggravated home invasion in this case included the following serious features: it was planned; the venue of the offending was a private residence; you intended to assault the occupants of the house and steal from them; all three of you had serious weapons; two of you were wearing disguises throughout the incident; the entry was late at night; the occupants were asleep; and you entered by smashing a window and forcing your way in, overpowering Mr Porter's efforts to repel your entry.
An aggravated home invasion offence is complete at the time of entry, and it is often difficult to draw a line between the entry and what happens inside the premises. But the behaviour inside the premises reflects the seriousness of the intent at entry. The intent in this case was to steal from Mr Porter a substantial amount of property using violence and violence with weapons. All of you had both an intent to steal and assault. Although the prosecution removed intent to steal from the particulars of the trial indictment that was for simplicity and there is no doubt that you Mr Harika and you Mr Hamann entered with that intent as well as an intent to assault. That was how the case was run before the jury.
In this case the three of you stayed inside the residence for forty minutes, a long time for an offence such as this where often the incursion is relatively brief. In that time, you herded Mr Porter around the house ransacking the place looking for property and he was seriously assaulted with a weapon and then later kicked when he was on the ground. This latter conduct is the basis of the common law assault against you, Mr Harika and you, Mr Hamann. It is a serious example of that offence. Ms Healey had to cower in the bathroom terrified witnessing what was going on.
In my opinion you, Mr Hamann took a lead role once inside the residence and escalated the aggression and violence towards Mr Porter. You, Mr Harika were Mr Hamann's willing offsider in the escalation. I accept that you, Mr O'Reilly played something of a lesser role in the aggression inside the unit and sought to pull back to some extent from the egregious violence that was taking place. The mitigatory effect of this however, is limited in circumstances where the whole episode was your idea Mr O'Reilly, and you went there with a weapon and knowing the others also had weapons. You expected violence to occur.
Mr Hamann you were the only offender who interacted directly with Ms Healey. Your reference to whether she had ever been with an older man must have been very unsettling for her.
The intentional injury charge is a serious example of that offence. In my opinion the injury suffered is at the upper end of what can be described as an injury rather than a serious injury. Mr Porter still suffers from the consequences. The machete was wielded by you, Mr Hamann using significant force with a clear intent to do real harm. Mr O'Reilly you face the lesser charge of recklessly causing injury in relation this incident reflecting a less serious intent on your behalf which is consistent with the fact that the blow you struck did not inflict a significant injury.
The theft was serious also, taking with you a large amount of property including Mr Porter's car. The property stolen went well beyond what was needed to pay any debt to Ms Varvatsoulis.
The extortion charge against you, Mr Harika and you, Mr Hamann related to the return of Mr Porter's dog coupled with a threat to injure and a demand for $20,000. The maximum penalty is 15 years. As with the intentional injury offence and the common law assault charge, this only relates to you, Mr Harika and you, Mr Hamann. In the circumstances, Mr Porter would have had every reason to believe that his ordeal was not over and that the threat would hang over him unless he complied. I suspect he was more resilient than that, but you were not to know that, and your intention was to put him in fear. This was also a serious offence in these circumstances, and it highlights the intention you Mr Hamann and Mr Harika had to maximise the gain from your criminality.
For this overall offending general deterrence, denunciation and just punishment are all principles which must be given substantial weight.

[43]

The principle of parity requires that like offences be treated alike, but that differences between offenders may justify different outcomes. In this case Mr O'Reilly, you initiated this offending. It was your idea. You needed money to pay your debt to Krystal Varvatsoulis and to feed your drug addiction. You recruited Mr Harika and from there Mr Hamann became involved. You intended to extract the money you needed using weapons and violence. This is clear from the text messages to Krystal Varvatsoulis in the lead up and by your behaviour during the time you were inside the house.
As I have said, I accept there is evidence that inside the house you thought your co-offenders were going too far and needed to pull back. Mr Porter said as much in his evidence. Mr Cronin detailed instances of this in his submissions such as getting water and a tea towel for Mr Porter.
Mr Harika, although you were not quite as aggressive as Mr Hamann you have been convicted of the same offences as Mr Hamann. You were complicit with him.
Mr O'Reilly, you pleaded guilty. Apart from the aggravated home invasion the negotiated charges you face are less serious and less numerous compared to the offences that Mr Harika and Mr Hamann were convicted of by the jury. Your plea is a substantial mitigating factor not available to you, Mr Hamann and you, Mr Harika. The two of you by running a trial have foregone receiving the considerable mitigatory benefits afforded by a plea of guilty.
Mr Hamann and Mr Harika, you both have significant criminal records whereas you, Mr O'Reilly had no prior convictions at the time of these offences. You, Mr O'Reilly are younger than your co-offenders and have not manifested the sort of entrenched criminality indicated by their substantial prior convictions. These are significant matters to be considered in assessing your moral culpability and prospects of rehabilitation and in deciding what weight is to be given to specific deterrence and community protection.
In all the circumstances the sentences to be imposed on you, Mr O'Reilly for the like offences must be significantly lower than those to be imposed on you, Mr Hamann and you, Mr Harika.
As between the two of you, Mr Hamann and Mr Harika, Mr Hamann's older prior convictions are more serious but after making some allowance for his disadvantaged background which I will further discuss in explaining his criminal record, the influence on sentencing in this case is marginal.
Mr Hamann played the most aggressive role inside the house, as submitted by Mr Shaw for Mr Harika. I do not see any real distinction to be drawn relating to the circumstances of the entry into the premises or the intent at entry. You, Mr Hamann though, were the principal offender in the intentionally cause injury offence and the common law assault. You were the person who directly caused the significant injury with the machete, and you were the one who delivered the kicks when Mr Porter was on the ground. Mr Harika, at least you showed some decency later in assisting the police to recover the dog whilst at the same time as maintaining you were not involved. The sentences I impose will reflect that you Mr Hamann were the principal offender for the intentional injury and common law assault charges but in my opinion substantial disparity in the overall sentence is not justified.

[47]

Your personal history was outlined in the psychological report of Ms Carla Lechner dated 27 June 2022 and in the defence submissions.
You are now 33 years old. You were born and raised in the north-eastern suburbs of Melbourne to parents Peter, now aged 58 and Natalie, aged 56. You are the oldest of three children.
Your father is a boilermaker. You say he abused alcohol during your childhood and was violent and aggressive, but that his behaviour and your relationship with him transformed after he ceased drinking. You have a good relationship with your parents, and you intend to reside with them and your children: Eva aged 8, Grace aged 6, and Oscar aged 4 at their home in Montmorency upon your release. Obviously though, there must have been some problems in the relationship for your mother to take out a Family Violence Safety Notice.
You met the mother of your children Krystal when you were around 19 or 20 years of age, and she was 24. Apparently, Krystal re-partnered three months into your incarceration for these matters. I am told she introduced you to the world and social network of drugs and your relationship quickly deteriorated in the context of mutual drug use. Your children were removed and have ended up in the full-time care of your parents. Krystal maintains intermittent contact with them.
You attended primary school in Preston until year 4 and completed your primary schooling in Montmorency. Your academic performance was average but you had a good circle of friends. You had no social or behavioural problems at school and completed secondary school at Marcellin College.
You were an exceptional baseball player and you apparently played for Victoria from age 14 to 18. After school you attended a Major League Baseball Academy camp which gave you some chance of being recruited to play baseball on a scholarship in the United States. You were not selected, and you were apparently very upset by this, but continued playing baseball until you were 26.
You worked as a boilermaker with your father and also as a brickie's labourer but apparently you didn't enjoy either job. You subsequently completed a plumbing apprenticeship and worked in that industry until 2013 before returning to work with your father at Jaydee Steel Pty Ltd as a boilermaker until your arrest. You again returned to this job during your period of bail. You have completed three years of your boilermaker apprenticeship. I am told and I accept your employer is prepared to take you back full-time when you are released from custody.
After being granted bail, you were ultimately breached for possessing methamphetamine and you were then remanded in custody again where you have remained since.
You told Ms Lechner that you began using cannabis at the age of 19 after you were not chosen for baseball scholarship. At the age 20 you started using methamphetamine with your partner, Krystal. Your drug use seems to have continued unabated until your involvement in these offences. You used GHB as well in significant quantities before you were remanded in custody for the second time in 2021.
You were frank in your discussion of the offending with Ms Lechner, and you showed insight into the impact of such serious offending on the victims, particularly Ms Healey.
In prison you have been on buprenorphine injections once a month.

[51]

Turning then to your prospects of rehabilitation: you have strong family support, a good work history and prospects of employment once you are released. You have taken some positive steps in custody in more recent times. However, the fact that you reoffended when released on bail is a cause for caution in assessing your prospects of rehabilitation.
I accept your offending was a consequence of your drug use. Ms Duckett, the prosecutor conceded the Arunta calls in which your sister continued to ask about your cravings for methamphetamine was reflective of how you came to embark on what she termed a 'rollercoaster' of offending which she submitted was unusual given your lack of criminal history.
It seems to me that if you can stay away from drugs, your prospects of rehabilitation are reasonably good. You are now over 30 years old and have demonstrated as an adult you can live a productive life uninvolved in serious criminal activity. You will be able to live with your parents where your three young children are residing, which should operate as an incentive for you to stay abstinent from drugs.
That said, you have an entrenched drug problem over a significant period and you engaged in very serious offending that was your idea for which your moral culpability is significant. Your rehabilitation will not be easy and a relapse into drug use and further offending remains an obvious risk.
The non-parole period is the minimum period of imprisonment that justice requires be served in the case. In fixing a non-parole period, punishment is mitigated in favour of rehabilitation. In your case, I have had regard to the absence of any criminal history at the time of these offences, your comparatively positive prospects of rehabilitation and the support you have in the community. I have allowed for a reasonably extensive period of supervision on parole in your case.
The sentence I impose must be just and proportionate to the total criminality of your offending. Charges 1, 2 and 3 all arise from the same episode and there is an overlap in criminality between those offences. The attempt to pervert the course of justice is a separate but related offence. To comply with the principle of totality I have moderated the orders for cumulation between the charges.
You were remanded into custody for 20 days in relation to the offence you committed when released for these matters. That matter resolved by way of a fine and I am required to take into account the 20 days you served as 'dead time' or Renzella time.

[58]

You were born in Melbourne on 30 May 1977. You are now 45 years old.
You are the second oldest of four children. Your father, Faoud, was born in Lebanon. He owned a panel beating shop. Your mother, Theresa, was born in Australia. She worked as a waitress when you were growing up in the northern suburbs of Melbourne.
Your mother now has serious health problems. She suffers from Multiple Sclerosis and Osteoporosis. One of your sisters, Rochelle, suffers also from Multiple Sclerosis, and another sister, Nicole, suffers from Crohn's disease. No doubt, the health of your family members will increase the burden of your imprisonment.
You have had several long-term relationships over your adult life. At the time of this offending, you were living with Leah Doody. She was a witness for the prosecution at the trial. That relationship has now ended and did so soon after this offending. You have no current relationship.
You have one child who is now 18 years old. You have had intermittent involvement in his life. You currently have regular phone contact with him.
You continue to have the support of your family.
Educationally, you completed Year 12 at Thornbury High School and then started a spray-painting apprenticeship in 1995, which you completed. You then worked in various spray-painting businesses, but you have not worked since a motor vehicle accident in 2008.
In that collision you suffered head and back injuries and an eye injury. This collision was the basis of the dangerous driving causing death charge I referred to earlier. I am told you suffered a further head injury in another motor vehicle accident in 2018. I am told you currently suffer from seizures.
You have a long history of abusing drugs. You started using cannabis at the age of 17 through until 2002. You started using heroin when you were 20 years old, and you were still using once a month when you were remanded in custody for these offences. You have also used methylamphetamine since 2012. At the time of these offences and your remand in custody, you were using methylamphetamine daily.
I am told that much of your criminal history is related to the use of drugs and that you have been drug-free since you were remanded in custody on 25 September 2018.
In custody you are prescribed the following medications:
- Methadone, 60 milligrams daily;
- Levetiracetam, an antiseizure medication;
- Duloxetine for nerve pain; and
- Medication for high cholesterol and high blood pressure.
A psychological report from Ms Laura Fleming, forensic psychologist, was tendered and I have had regard to the contents of that report dated 1 July 2022. Ms Fleming says in the report that at the time of her assessment you met the diagnostic criteria for:
- Stimulant Use Disorder and Opioid Use Disorder dating back to the time of the offending;
- Adjustment Disorder with depressed mood;
- Post-Traumatic Stress Disorder; and
- Mild Neurocognitive Disorder.
The report says that continued imprisonment will weigh more heavily on you than a person without your psychological problems. Accordingly, I make allowance for some increased burden of imprisonment by reason of those conditions.
I have also indicated I have taken into account your concern for the health of your mother and your sisters as increasing the burden of your imprisonment.

[63]

Mr Hamann, your criminal history as an adult commenced in 1990 at the Preston Magistrates' Court. You received a period of three months at a Youth Training Centre for theft, unlawful assault and other offences on that occasion.
In August 1990, you were dealt with at the County Court for armed robbery, theft and other offences, including attempted armed robbery. On that occasion, there were two charges of armed robbery and one of attempted armed robbery. You received a community-based order. Your offending continued consistently through the 1990s.
In July 1991, you were convicted of armed robbery, burglary and other offences, and received a three-year Good Behaviour Bond. Then, on 9 December 1994, you were again at the County Court for armed robbery, and you received a sentence of two years' imprisonment with a minimum of 12 months.
You have prior convictions for trafficking drugs, for which you received a sentence of imprisonment in 2000.
In July 2001, you again appeared at the County Court for a number of charges of armed robbery and attempted armed robbery and received a total effective sentence of 11 years with a minimum of 9 years. You appealed that sentence, and it was reduced by the Supreme Court to a sentence of 10 years with a non-parole period of 8 years.
Your prior convictions have declined in seriousness and consistency over the last decade, but the offending here represents a return to very serious criminality on your part. You also have a criminal history in Queensland and in New South Wales, but nothing to compare with your Victorian criminal history.
Your criminal history indicates many years of serious offending. You have seven prior convictions for armed robbery and other prior convictions for attempted armed robbery and other serious offences. At the age of almost 50, you are now to be sentenced for this extremely serious offence of aggravated home invasion.
Of course, you are not to be punished again for your prior convictions. However, your criminal history is relevant to your moral culpability, specific deterrence, the assessment of your prospects of rehabilitation and community protection.

[64]

Your personal circumstances Mr Hamann are set out in the psychological report of Ms Laura Fleming and in the defence submissions. You were born in Echuca. You are an indigenous man. At the age of 2 you were placed in Allambie, a children's home. You have two biological brothers raised by your biological parents.
You were adopted and raised in Craigieburn. Your adoptive parents fought and abused alcohol. They had three biological children older than you. Your adoptive mother died from a heart attack when you were aged 5. Apparently, your adoptive father blamed you. He worked at a brick kiln but later ceased work after a workplace accident.
Your adoptive siblings worked in Aboriginal health, and you describe them as supportive of you.
You attended Craigieburn Post Primary School where you say you excelled academically and made friends easily.
At age 12 you moved to Lang Lang with your father and lived in unenviable circumstances, for a time in a bus. It was around this time a neighbour disclosed to you your adoptive status. This was a traumatic experience for you. Your behaviour at school deteriorated and thereafter you engaged in bullying and disruptive behaviour, ultimately leading to your expulsion from school in Year 8.
At 14, you left home and lived at friends' houses and also with your adoptive brother.
At 21 you contacted your biological family and discovered your mother had passed away. Your maternal grandmother had died some days prior to your visit.
You have a 30-year-old son named Josh with a woman you met in a rehabilitation centre. She passed away from a drug overdose and Josh was raised by your niece. You saw Josh briefly prior to your remand but you have not played a parenting role in his life. You have not maintained contact with your family since going into custody.
You have a very limited work history. At one stage you worked for a month as a material cutter in the shoe industry. You otherwise have relied on your adoptive father, unemployment benefits and more recently on the disability support pension.
You have had three significant relationships in your life, the first of which ended when you were 21. Your relationship with your second partner Tracy ended after an extended period in custody. Your most recent relationship deteriorated because of your drug use. You and your most recent partner apparently were involved in delivering the Marumali program which was run by her mother which deals with the Stolen Generations and healing.
You have had a long-term drug problem. You have overdosed numerous times during your adult life, most recently in 2016. You reported you have self-harmed in custody and that back in 1994 you attempted suicide by hanging. You describe experiencing psychotic symptoms associated with substance use.
You were introduced to cannabis by friends at the age of 12 and have been a daily user since. In your adolescence you reportedly misused prescription medications including benzodiazepines. At age 15, you began using amphetamines and later, methylamphetamine. You were using 1.5 grams each week at the time of your arrest. You began using heroin at the age of 17 but you have been abstinent from that drug for many years. You reportedly stopped drinking alcohol 25 years ago. You have been through opiate replacement programs and are currently prescribed Suboxone. In the past you have attended Odyssey House and Galliamble, which is an Aboriginal Rehabilitation Centre in St Kilda. You are hopeful of participating in the Dardi Munwurro Aboriginal rehabilitation program when your released from prison.
Ms Fleming describes you as a person who experienced displacement from your family and culture of origin. She deals with the circumstances of your early developmental period namely at Allambie and then with your adoptive family.

[65]

She says your low positive parenting interaction is associated with psychological maladjustment, substance abuse and other psychological deficits. These problems are exacerbated by alcohol and drug use. She also says you have been institutionalised given the percentage of your life you have spent in detention starting from a young age. 14. Mr Grant submitted that your upbringing was deprived and submitted that the principles deriving from the High Court case of Bugmy v The Queen [2013] HCA 37; (2013) 302 ALR 192 have application to moderate the assessment of your moral culpability. He also submitted that your drug use from an early age operated to reduce your moral culpability. In my opinion your drug problems are related to your difficult childhood and adolescent years. 15. I accept that the circumstances of your childhood and adolescence rendered you vulnerable from an early age to substance abuse and related criminality, and these factors have continued to impede your capacity to rehabilitate. 16. I accept that your moral culpability is reduced because of the circumstances of your upbringing, which also explain to an extent your lengthy criminal history and failure to rehabilitate. 17. However, you Mr Hamann took a lead role in this serious offending. You acted in a merciless way towards Mr Porter and escalated the violence in what was already an inherently violent event. Notwithstanding the moderation in moral culpability arising from your upbringing, your moral culpability for this offending remains substantial given these matters. 18. Moreover, these same factors, related as they are to your lengthy criminal history, bring into focus the need to protect the community from your significant offending and are a factor in the assessment of your prospects of rehabilitation. 19. With respect to your prospects of rehabilitation, in light of the objective gravity of this offending, the role you played in it, and your very substantial criminal history I assess your prospects as poor. 20. In relation to orders for cumulation I have applied to the totality principle in the same way as I have for Mr Harika, and I have sought to avoid a crushing sentence in your case. 21. Considerations of general deterrence, specific deterrence, denunciation, just punishment and community protection all have a significant role to play sentencing in these circumstances. 22. The need to facilitate your rehabilitation will be reflected in the non-parole period but the weight it can be given is limited by the gravity of the offending and my assessment of your prospects as poor.

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Parties

Cases Cited (2)