DPP v Spear [2026] VCC 165

Mr Hamilton and said, 'You're not so fucking tough now!' That is part of Charge 3, the common law assault. 9. Mr Hamilton ran back towards Creeth Street. As he did so he looked back and saw you tucking the handgun back into your pants. 10. He then grabbed a metal pole from the garden and confronted you as you had walked back towards the residence and were standing outside the front gate. 11. At that point you produced a knife from your left jacket pocket. That is the foundation of the related summary offence, Charge 3, possess controlled weapon. 12. Mr Hamilton swung the metal pole at you in an attempt to disarm you. You held the knife and threatened to stab him. That is the other basis of Charge 3, the common law assault. 13. The metal pole struck you and fractured your right forearm. At that point you left. 14. Mr McCumber called Triple 0 and police attended and obtained CCTV which captured most of this incident. 15. Shortly before midnight you attended the Emergency Department at

Bendigo Base Hospital where you were treated for a wound to your right forearm and a fractured right ulna. 16. On 28 September police conduced enquiries with the Hospital.

Detective Senior Constable Ludeman and Senior Constable Peckham attended the hospital and arrested you. Your phone was also seized. Police executed a search warrant at your residence and relevantly located and seized:

(c) Knuckledusters which is the basis of related summary Charge 5

• possess prohibited weapon.

(c) And a black balaclava in the house and other clothing in your car.

1. Your mobile phone was examined. It contained images of a male wearing a black balaclava and holding a handgun.
2. At 5.23am on 27 September, about 90 mins before this offending, examination of your phone showed that you had sent a message to an associate which read, said, 'I've got one more door to kick in. I'll be coming home. Pop in when you're ready.'
3. You were charged and remanded in custody.

1. Aggravated burglary is a serious offence reflected in the maximum penalty of 25 years' imprisonment. Entry into another person's residence armed with a weapon and for the purpose of assaulting them is a grave act. It offends against the sanctity of a person's home and their right to feel safe therein.
2. The sentence I impose must have a focus on general deterrence and on community protection. That is, it must work to deter others from engaging in this type of behaviour. It must express the community's disapproval and must protect other people from becoming victims in their own homes. It must also serve to deter you from any similar offending in future.
3. The maximum penalties for being a prohibited person in possession of an imitation firearm is 10 years imprisonment for common law assault, five years for possessing a controlled weapon, one year imprisonment, and for possessing a prohibited weapon without excuse, two years.

1. When I assess the gravity of the head charge of aggravated burglary I take into account the following features which aggravate that offence.
2. You attended the home in the early hours of the morning, that is, about 7 am, clearly with an intention to confront and assault someone, namely Mr Hamilton. That was in the shadows of tensions which had arisen between yourself and

Mr Hamilton and Ms Norris prior to this time. 3. Your offending had a level of planning, apparently prompted by an argument with Mr Hamilton at a train station shortly before this. 4. On your instructions, in a state of intoxication, you made the decision to 'scare' and assault Mr Hamilton as a way of avenging yourself. At that time you had relapsed into significant substance use due to a breakdown of a relationship and you had consumed a fair amount of alcohol and methylamphetamine on that day. That of course in no way excuses your behaviour. Indeed, people who are drug affected are more likely to be unpredictable and violent if the situation evolves to a confrontation. For that reason, as I said, the sentence I impose must deter others from this type of vigilante or revenge behaviour. 5. There was a breach of the trust of Ms Norris. She says in her victim impact statement:

'It makes it worse that he was my friend, you hear on the news about all these young people doing this, but he was my friend and an adult, and it is just really hard to understand why.'

1. You were armed with an imitation firearm, a weapon well and truly capable of creating significant fear. You were also armed with a knife, a weapon with the potential to inflict serious injury on another person.
2. Your planning is reflected in the fact you were disguised by the balaclava. Had the victims woken when you were in the house, you would have presented a frightening figure. It is most fortunate that they did not, and particularly that no child woke to see you. The ramifications could have been serious for those children.
3. The aggravated burglary is complete at the point where you crossed the threshold and entered the house. In most if not all cases the seriousness of that charge tends to be eclipsed by what happens inside, in particular, where the intention on entry is to assault. Here, I accept you were in the house for a very brief period and that you were in fact trying to leave when Mr McCumber came inside. I accept you were trying to leave because once inside you realised there were children present which you did not expect. Your act of holding your finger to your lips and effectively communicating with Mr McCumber to be quiet reflected your desire to exit without disturbing the children.
4. In addition, I accept that the adults in the house were people known to you. That cuts both ways. As I have already described, Ms Norris feels you've breached her trust and friendship. A person coming in who is known can be less frightening than a stranger appearing. On the other hand, I take into account, as I have said, this occurred with the aim of revenge or retribution.
5. Fortunately, no other offending took place inside. More fortuitous is the fact that no one was injured, and nothing was damaged inside the house.
6. Nonetheless, the circumstances of your entry make this a serious example of an aggravated burglary.
7. Turning to what occurred afterwards in the street. Once confronted by

Mr Hamilton and despite what you had just done, you did not run but instead pulled out the handgun and threatened him. That is serious behaviour. Your status as a prohibited person is reflected in Charge 2. 8. The community is rightly concerned by the possession and movement of firearms, and imitation firearms. There is a real potential for the creation of fear and anxiety. Your status as a prohibited person reflects the legislature's intention that your past behaviours mean you should be prohibited from in any way having a weapon. 9. Similarly, your possession of the knuckledusters and a knife are reflected in the charges here. 10. When confronted again by Mr Hamilton swinging the pole at you, you still did not desist but threatened to stab him with the knife. Again, that is serious and reprehensible. 11. It is fortunate he was not injured and it is fortunate that him hitting you in the arm brought this incident to an end. 12. The basis of the assault charge is the threatening behaviour with the firearm and the knife and as such it is a non-contact assault. Ordinarily non-contact assaults are less serious but given the threat with two weapons in the circumstances of having just entered their house, I view this as a more serious example of common law assault. 13. Overall, this does constitute an episode of serious offending.

1. Ms Norris writes a compelling victim impact statement. She ruminates on what could have gone wrong and in particular of her concern for her children. She says:

'Given this occurred during the day in fact makes it harder to feel safe.'

'Home is meant to be our safe place. Even though I left my back door unlocked I have two gates before you get to the door. I didn't expect this to happen. I just don't use my front door and all my family and close friends know that I leave my back door unlocked, but this was my safe place and I should be able to do that. but now I always lock it even when we are at home.'

'Has changed lots of things. I don't like to leave my house. I don't sleep and when I do I have bad dreams. I wake up screaming, and it is always Jason and I fear that he is taking my daughter. I run down to check on her. I still have these bad dreams.'

1. Themes common to victims such as rumination and anxiety, and ongoing insecurity are very clear in her statement and I take those matters into account.
2. Properly it is conceded by you that a term of imprisonment is warranted for this offending. The question raised on your plea is how that term should be structured.

1. Turning to your personal circumstances and background, I have been assisted by a range of material on your plea. In addition to the thorough submissions authored by Ms Temperley of counsel, I have also received the psychological report of Dr Poppy Edwards dated 19 August 2025, along with a range of material I will come to regarding your situation since this offending.
2. You are now 46 years old. You were raised in Moonee Ponds and have three older half-brothers on your mother's side, with an age gap of 14 to 20 years between you and your brothers. You believe their father left or died but this was not spoken about.
3. Your memories of your own father are of his serious violence. You describe him as 'mean', angry and highly violent, as well as a 'drunk'. He had been imprisoned for violence and you believe he shot a police officer.
4. Even though very young, you have memories of your father being brutal to your mother, resulting in injuries to her. You say she would often try to intervene to protect you and your half-brothers.
5. You recall and describe multiple events of violence inflicted on you directly. Your school became involved and made a report of family violence which only served to escalate his behaviour.
6. When you were about five years old, your father committed suicide in front of the family. This was deeply traumatic to you all. You still suffer the aftermath of that event.
7. No doubt due to her own trauma, your mother's care became inconsistent.
8. Your older brothers took on father roles to you. One of them however had a problem with substance use and would beat you. You and he are now close which you attribute to him suffering guilt and a desire to make amends
9. Unsurprisingly, your behaviour through school years was problematic. Other children would pick on and bully you to provoke outbursts. You were expelled in Grade 5. You moved school but a similar pattern emerged. You were suspended multiple times through secondary school.
10. Fortunately, you excelled during Year 10 work experience as a panel beater and you were encouraged to leave and obtain employment. Your mother agreed as long as you could find work immediately. As a result, you took on a butcher apprenticeship which you enjoyed but was not your area of choice.
11. At 17 your mother sent you to live with a brother in Kyneton. You now consider this coincided with your mother's declining health as she had been diagnosed with cancer. You worked at the abattoir in Kyneton.
12. Your mother died when you were 21 and this was another turning point in your life. Despite her difficulties, you and she were very close. You said after her death you became increasingly angry and began drinking heavily. You started to getting into pub fights and assaults and ultimately committing offences. You started using cannabis heavily.
13. Your prior criminal history which I will come to, reflects those matters.
14. Your relationships became marred by violence and you felt disappointed at following the path of your father.
15. Despite those matters you managed to continue and maintain employment, ultimately purchasing a home. However, a friend moved in and together drug use and partying became the norm. You were ultimately sacked from your employment and had to sell the house as you could not meet repayments.
16. You formed a relationship from which you have five children. You and your former partner were using drugs and you became a dealer to finance your habits.
17. Your criminal history dates to 2005. There are numerous assault and causing injury offences, along with drugs, weapons and driving matters. You variously received fines, suspended sentences which you breached, and short terms of imprisonment. You managed to successfully complete a previous

Community Based Order and a Community Correction Order. 18. You experienced periods of homelessness after you were released from gaol. Your drug use expanded to include methamphetamine, amphetamine and MDMA and you describe yourself becoming more entrenched in criminal activity. 19. Ultimately your relationship broke down and an intervention order was put in place preventing contact with your former partner and your children.

1. Ms Temperley submits that the various adverse experiences during your childhood enliven the principles enunciated by the High Court in Bugmy v R.[1]
2. Those principles arise where an offender has suffered significant deprivation in their childhood and formative years. Those circumstances are more the matters of historical are more the matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences.
3. I accept that given your exposure to violence and extreme trauma, along with neglect and instability, those principles are enlivened in your case. Equal justice demands I recognise those matters and the mark they have left on you in sentencing. It is apparent that a number of those early experiences influenced your behaviour in terms of drug use and violence.
4. At the end of 2013, aged about 35, you experienced a drug induced psychosis following daily methamphetamine use. You described that event as a turning point in your life. You completed a rehabilitation program and over time you gradually increased your stability and ceased substance use. Your last court appearances prior to the matter now before me were in 2015 where you were placed on two CCOs, both of which were successfully completed.
5. You eventually secured public housing in Bendigo. You initially found work on an egg farm but were made redundant. You returned to the meat processing industry and were made redundant again after two years working as a butcher before finding a secure position at Don KR Meats.
6. Significantly, you gained access to your children.
7. Your former partner and her then partner had separated. She relapsed to drug use and her partner became the primary carer of their child and your five children. To your credit, you and he now co-parent your children and you report your children are 'thriving and fantastic'. They visit you and you say you have an honest, open relationship with them.
8. The motivation of your relationships with your children is a strong protective factor for you.
9. Despite those solid efforts and your lack of criminal behaviour for over nine years, the offending now before me occurred in the context of a relationship breakdown with a third party (not Ms Norris). That relationship ended after about three years. You relapsed to substance use and reported suicidal and violent ideation during that time. You were using methylamphetamine daily and consuming approximately 22 standard drinks per day.
10. In the week immediately preceding this event you made an attempt on your life. As a result, you presented to Bendigo Hospital and were admitted to the

Short-Term Unit where you remained for a period of four days before being discharged. Diagnoses of depression and anxiety were confirmed. 11. You have also been diagnosed in the past with antisocial personality disorder. You are currently medicated on Olanzapine and Mirtazapine. I have received confirmation of that admission from Bendigo Health. 12. You reported to Dr Edwards, that you:

'Have a lot of regret for this offending behaviour, especially because of his own personal history of family violence. He stated that he was disgusted with himself. He attributed his poor judgment to his substance use, stating that he had not used drugs for 10 years and viewed himself to have become a better person.'

1. You were remanded into custody after this offending which again seems to have broken that cycle of drug use.
2. You have, to your credit, attempted to deal with your issues in the past by engaging with various programs; Orange Door, an anger management program and counselling, along with the residential placement in 2015 at the

Prevention and Recovery Care (PARC) in Bendigo. However, you say back then you were not ready to change. 3. That situation it seems is different now. Perhaps as a sign of your maturing years, you have engaged with alcohol and drug counselling, including during your time on remand from September 2024. 4. You remained abstinent from any substance use. 5. You sought referrals for residential rehabilitation while in custody and of your own volition. 6. You were bailed in the Supreme Court on 14 April 2025 to reside at

Odyssey House and you were released to Odyssey on 23 April 2025. Your plan was to remain in the long term residential program. 7. You remained substance free as evidenced by urine screens. You attended group therapy sessions, completed an eight week psycho educational course on emotional regulation and you otherwise engaged and participated well in their therapeutic space. You also completed a six hour program called 'Ice and Me'. 8. I received evidence of each of those matters when I heard your plea

22 August 2025. Ms Temperley submitted that I should defer sentence in order to allow you to continue that path to rehabilitation. That was supported by the prosecution. 9. You progressed to level 2 of the Odyssey House program in late August. However, as a result of your good progress you were in fact exited early from the program. On 10 September 2025 you were told you were to be discharged from Odyssey House which was a surprise to you. I varied your bail on

17 September. 10. To your credit, you again built on the good work you had done upon your return home. 11. You sought another referral for alcohol and drug addiction treatment, along with psychological counselling. 12. I have received letters from Ms Shari Mathew, alcohol and drug practitioner of the Northern Victorian Alcohol and Other Drugs Services, confirming you voluntarily referred to that program for an episode of complex counselling. That is 12-15 sessions of counselling. You engaged in treatment with her to develop a treatment plan, relapse prevention and harm minimisation strategies and collaborate with existing support providers such as your GP. 13. Your treatment began on 15 October 2025 and as at December you had completed six sessions. She says:

'Mr Spear came to his first counselling appointment describing gratitude toward the rehabilitation program at Odyssey House, reporting that he had found learning and practicing both emotional regulation and healthy coping skills has given him tools to abstain from substance use, and improve his quality of life.'

1. She says your dedication to his children and your overarching goal to provide and support your family stands out. You have told her that is your main core value and you want to live a much more authentic life with that commitment.
2. She confirms you have maintained abstinence despite some challenging events and experiences. You disclosed to her your ongoing struggle with mental health, but she says it is to your credit that you are dealing with difficult circumstances by reaching out for support rather than self-medicating with substances. She says you are proud that even in harrowing times you have not returned to using methamphetamines:

'Mr Spear reported he has proven to himself that he can cope with life's ups and downs in positive ways.'

1. I received a further letter dated 12 February 2026 from Ms Matthews confirming your continued your engagement wither her. Treatment has expanded to look at underlying issues. She says you continued to engage meaningfully and to demonstrate insight and a determination to carve out a different life for yourself.
2. She also says you disclosed that more recently you found yourself moving through life without the struggle of cravings, despite the challenge of internal and external triggers. You have reported connection to a positive peer group.
3. She also confirms you have returned to work with Don KR and says:

'To his absolute credit, Mr Spear holds down a supervisorial position at his place of work, which demonstrates the trust he has established with his employer and other colleagues.'

1. I have also received a letter confirming that employment.
2. In his December letter psychologist Mr Geoffrey Davies confirms you had been seeing him for several months. He was aware of your offending and the coming sentence. He says:

'Since engaging in therapy with me, Mr Spear has demonstrated a consistent and genuine commitment to rehabilitation. He has openly reflected on the role that intoxication, emotional dysregulation, and unaddressed psychological stress played in his offending, and he has expressed clear insight into how these factors affected his judgement in the past.'

1. With him you are addressing your past history of trauma. He says:

'His reflections consistently prioritise the needs of his family above his own, and he expresses considerable distress at the prospect of losing his role as a parent, provider, and stable father figure. This focus on the broader consequences of his actions reflects a shift away from impulsivity and towards mature, values-driven decision-making.'

1. He also says you have taken practical steps to prepare for all possible sentencing outcomes which in his view demonstrates improved planning ability and readiness to adjust to challenges rather than avoid them.
2. In his February 2026 letter he confirms your ongoing consistent engagement.
3. Notably he reports that on 30 January 2026, you reported a significant deterioration in mood and functioning following the recent breakdown of your relationship. Of significance he says despite the severity of that episode you demonstrated several important protective and rehabilitative factors. Notably:

'Maintaining full abstinence from alcohol and illicit substances throughout this period of emotional distress.'

'This is clinically significant given his history of substance use as a contributing factor to previous offending. He has since returned to work after a two-week absence, indicating partial functional recovery and a capacity to re-engage with responsibilities despite ongoing emotional difficulties.'

1. In his professional opinion, your sustained abstinence, return to employment, insight into his behaviour, and ongoing engagement in structured treatment continue to indicate a reduced risk and meaningful rehabilitation.
2. It is those steps towards you rehabilitation that are relied on by Ms Temperley to submit that I should not return you to custody.
3. Those steps are significant and to your credit. I take them into account. They build on the significant period between 2015 and this offending when you had rebuilt your life. Dr Edwards notes that you may be at a point in your life where you are potentially 'aging out of a life of crime'.
4. In those circumstances, particularly the recent challenge of a relationship breakdown and taking account of your overall efforts since being bailed, I consider your prospects of rehabilitation to be positive. They obviously have a close relationship to your ability to maintain your abstinence from drugs and alcohol, but you have now been abstinent from nearly 18 months. You are showing insight into triggers, addressing your longer term history of trauma, and are motivated to continue the good path you are on. Protective factors in the form of your children along with your home and employment are significant. I take those matters into account.

1. I also take into account that you have pleaded guilty to this offending on

22 August 2025 and you received the benefit of that plea. It is an early plea. A plea of guilty has a utilitarian benefit in that it saves the court and the community the cost and time of a jury trial. It also saved the victims here of having to give evidence and that is significant.

1. I also accept in your case, Mr Spear, that your plea does reflect genuine remorse, as expressed to Dr Edwards, and also as demonstrated by your determined efforts to change.

1. I have had regard to current sentencing practices, including consideration of a number of cases outlined in the Judicial College of Victorian Sentencing Summaries. As always, there are similarities and differences between offender and offending.
2. Ultimately, I am required to impose a just sentence in all the circumstances before me and that is what I have endeavoured to do.

1. Ms Temperley submits that those matters I have outlined support the imposition of a combination sentence.
2. She submits the 208 days you have already served meet the imprisonment component of such a sentence, and that you should also receive credit for the 141 days you have spent at Odyssey House in line with principles outlined in Akoka.
3. She notes the CCO assessment which I ordered confirms your suitability for such an order.

1. Mr Cordy on behalf of the prosecution submits the objective factors of your offending warrant a significant term of imprisonment but fairly concedes that a combination sentence is within range, largely as a result of your efforts towards rehabilitation.
2. He agrees with Ms Temperley and I accept that the time spent in the quasi custodial setting of Odyssey House can be taken into account by me.[2]
3. The question posed by Mr Cordy is whether the time already served on remand is sufficient to meet the sentencing considerations.
4. I believe it is and I believe it is because of your efforts. In other words,

Mr Spear, you have saved yourself from going back into prison. The sentence I impose will give you recognition for that fact. I do not intend to interrupt the good progress you have made by returning you to imprisonment. It is not only to your benefit and the benefit of your children, but to the community's benefit that you continue on the path to full rehabilitation and as such reduce your risk of any further offending. 5. If you could stand, please.

1. I intend to impose an aggregate sentence on Charges 1 and 3 given they are closely connected in time and purpose and given the ultimate conclusion I have reached regarding the appropriate sentence.
2. The sentences I impose are as follows. On Charge 1 and Charge 3 you are convicted and sentenced to 208 days imprisonment, plus a two year

Community Correction Order. 3. The terms of that order in addition to the mandatory term are as follows, that you be under supervision, that you undertake 175 hours of unpaid community work, that you engage in assessment and treatment as directed by

Corrections Victoria in relation to your mental health, that you engage in assessment and treatment as directed by Corrections Victoria in relation to drug and alcohol abuse. 4. I direct that up to 75 hours of unpaid community work can be offset by your attendance at therapeutic intervention. So in other words, the more counselling or drug and alcohol treatment that you do, the less community work hours you will have to do. 5. Before I can impose that order, Mr Spear, I need to ask you whether you consent to undertake it and before I ask you if you consent I must make sure that you understand if you breach that order either by further offending or by not complying with the directions of Corrections not completing those conditions, you will be brought back to me with the potential that I will re-sentence you on the aggravated burglary and other offences. Do you understand that? 6. OFFENDER: I do, Your Honour. 7. HER HONOUR: Do you consent to undertake that order? 8. OFFENDER: Yes, I do, Your Honour. 9. HER HONOUR: All right. In relation to Charge 2, possessing a prohibited weapon, you are convicted and fined $1000. In relation to the two summary charges, that is, the two weapons offences, you are convicted and fined an aggregate of $400. So the total fine is $1400 and Ms Temperley will give you information in relation to the payment of those moneys.

1. I declare that you have spent 208 days on remand for these offences and that that period should be reckoned as having been served under the sentence on Charges 1 and 3.

1. But for your plea of guilty, so if you had not pleaded guilty the sentence I would have imposed would have been one of four years imprisonment with a

1. I propose to make the disposal order in the terms sought noting that was by consent.
2. Are there any matters to raise, counsel?
3. MS TEMPERLEY: Nothing arising, Your Honour.
4. HER HONOUR: All right. have a seat, Mr Spear. I will have that order printed out and I will ask you to sign your agreement to it.
5. OFFENDER: Yes, Your Honour.
6. HER HONOUR: Ms Temperley, you're welcome to take that document and explain that.
7. MS TEMPERLEY: Thank you, Your Honour.
8. HER HONOUR: Mr Spear, your signature on that document is your promise that you will complete that order. Do you understand that?
9. OFFENDER: Yes, I do, Your Honour.
10. HER HONOUR: All right, thanks very much. Thanks very much, Counsel, for your assistance in that matter.
11. MS TEMPERLEY: Thank you, Your Honour.
12. HER HONOUR: We will now adjourn.