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Retired Victorian Supreme Court Judge George Hampel’s daughter Kristina Hampel has received no conviction after a sentencing hearing in the Victorian Magistrates Court.
The Court heard that she had profited $3,800 from selling 10g of cocaine from her apartment in Melbourne’s exclusive South Yarra.
She was also found to be in possession of a tear gas canister, and was sentenced for possession of a prohibited weapon. Her penalty was a community corrections order and 200 hours’ community service.
Victorian sentencing law permits a judge to record no conviction and impose a penalty such as a community service order at the same time (Sentencing Act 1991 s 8).
How would it have gone down in NSW?
Most people have heard of a section 10 – it is a legislative provision of the NSW Crimes (Sentencing Procedure) Act 1999 empowering judges to either dismiss charges unconditionally or impose a good behaviour bond and record no conviction after a plea of guilty is entered. No other penalties, such as fines or community service orders, may be recorded. It appears that the legislative purpose of this regime is to force judges’ hands, so that only minor offending can warrant an order that no conviction be recorded. Indeed, a relevant consideration is the triviality of the offence (s 10(3)).
Hampel was apparently charged with possession of 10g of cocaine. Schedule 1 of the NSW Drug Misuse and Trafficking Act 1985 (‘DMT Act‘) puts this above both the “traffickable quantity” (1g) and the “indictable quantity” (3g). A quantity of cocaine being more than the indictable quantity is a “strictly indictable” offence and does not fall under Sch 1 of the Criminal Procedure Act 1986 “Table 1” or “Table 2” offences. What this all means is that if she were charged in NSW, Hampel would have to go to the District Court and would not have the option of having her matter heard in the Local Court. In Victoria, the Magistrates Court is equivalent to the Local Court, and the County Court is equivalent to the District Court.
Getting sentenced for supply in the District Court means Hampel would face a maximum penalty of 15 years jail, rather than the jurisdictional limit the Local Court has of 2 years. Hampel would also be “deemed” to be supplying because the quantity of drugs was over the traffickable quantity (DMT Act s 29). This means that the law would assume that Hampel had the drugs for the purpose of trafficking them, and she would only be able to overcome this by proving on the balance of probabilities that she had the drugs for personal use or otherwise than for supply (s 29(1)). On the admitted facts, it seems that Hampel conceded that she was deriving a commercial gain from dealing the drugs. As such, a defence of “personal use” would not get up.
Sentence
Hampel would need to convince the judge that her offence was trivial, among other things, in order to get a section 10. This seems highly unlikely given the commercial scale of her offending. This would leave her with a section 9 (conviction + good behaviour bond) at best, and a term of imprisonment at worst. It is likely that she would be put on a community service order and of course, a conviction recorded.
Conclusion
It could be argued that Hampel got off lightly – the courts have consistently recognised that a conviction is not merely some kind of a Foucauldian post-structuralist construct of oppression with no substance, but rather a tangible penalty of a considerably denunciatory nature. If she were in NSW, she would have been convicted, but in Victoria, she was not. If we had enough time on our hands, SCD Lawyers would think about assisting one of our clients convicted of a drug offence take the Crimes (Sentencing Procedure) Act (NSW) s 10 or the Sentencing Act 1991 (Vic) s 8 to the High Court seeking a ruling of invalidity on the grounds of discrimination based on state residence (s 117).
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