Director of Public Prosecutions v Hagen

[2020] VCC 761

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00049

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD HAGEN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2020
DATE OF SENTENCE:	1 June 2020
CASE MAY BE CITED AS:	DPP v Hagen
MEDIUM NEUTRAL CITATION:	[2020] VCC 672

REASONS FOR SENTENCE

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Subject: Intentionally causing injury.

Sentence: 2 and ½ years imprisonment with a non parole period of 16 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Bosso Mr S. Devlin
For the Accused	Ms J. Buxton

HIS HONOUR:

1Richard Hagen, you have pleaded guilty to a charge of intentionally causing injury.  The offence occurred on 14 August 2019.  The maximum penalty for this offence is imprisonment for 10 years. 

2The circumstances of your offending are summarised in a written summary prepared by the prosecution, which was tendered in evidence and marked as Exhibit A on the plea. The relevant parts of that document were read in open court by the prosecutor, Mr Devlin. 

3Your counsel, Ms Buxton, accepted that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence. 

4It is not necessary that I hear, again, set out in full that which is summarised in the prosecution summary, and I will refer to the facts in an abbreviated way.  These sentencing remarks should, however, be read in conjunction with what is set out in more detail in the prosecution summary, dated 20 May 2020. 

5You attended at the home of the victim with another man at 2 am in the morning.  You knocked on the front door, and when the victim, who was your cousin and well known to you, opened the door, you struck the victim to the side of the face.  This caused the victim to lose balance.  He grabbed hold of you and you then struck him a second time, causing him to fall to the ground, where you repeatedly kicked him on his left side, head and body until the victim lost consciousness.

6The victim suffered lacerations to the face, including the lips and lower chin, scalp grazes, multiple tooth fractures, losing at least three teeth, and a haematoma to the frontal aspect of the left side of the scalp. 

7The victim continues to suffer from ongoing pain to his left knee, injured when he fell, which will require surgery, and he has ongoing issues with pain from the assault and he has trouble sleeping.

8To your credit, you self-presented to Sunshine police station on
19 August 2019, where you were arrested.  When interviewed, you admitted attending the victim's home, but denied the offending.  You said the victim was making it up and you never touched him.  You said the victim was drunk and fell over. 

9Clearly, this is serious offending.  You went to the victim's home in the middle of the night and violently assaulted and injured him, rendering him unconscious without any provocation whatsoever.  This is a serious example of this offence that falls at about mid-range for this offence, and your moral culpability for the offending is high.

10Ms Buxton filed helpful written submissions on your behalf.  She appropriately conceded the offending to be serious.  She said your relationship with the victim was harmonious and you have always been on good terms with him, which does little to explain the offending.  I accept the offending was spontaneous and not planned. 

11I was told and accepted that at the time of the offending you were affected by drugs, having relapsed into drug use.  That, to some extent, explains the offending but does not excuse it. 

12Ms Buxton conceded that the imposition of a sentence of imprisonment is warranted in the circumstances of your offending, but she argued that I should defer sentencing you pursuant to s.85A of the Sentencing Act 1991. I will return to this submission later. The prosecution opposed this disposition and submitted that I should impose a term of imprisonment and fix a non-parole period.

13You were arrested on 19 August 2019 and you were remanded in custody.  There followed two committal mentions and there was a contested committal on 16 January 2020.  After two subsequent directions hearings in this court, the charge against you resolved into a plea on 30 March 2020. 

14Whilst on remand on 16 December 2019, you were sentenced in the Sunshine Magistrates' Court to a term of imprisonment of six months for unrelated charges, and the 119 days was reckoned as pre-sentence detention in relation to those unrelated charges, so that whilst you have been in custody since
19 August 2019, 108 days has been served as pre-sentence detention in relation to this charge.

15From the perspective of totality, I have taken this into account in fixing a non-parole period.  Whilst on remand, you have spent most of your time in the Mulberry unit of Port Phillip Prison, where you are a disability mentor to other prisoners (Exhibit 6). 

16You pleaded guilty to the charge, and I treat you as having done so at an early time, but not at the earliest opportunity.  By your plea of guilty, you have saved the time and cost of a trial and, importantly, you have saved the victim from having to relive these events by giving evidence and being cross-examined by your counsel. 

17Also, by pleading guilty, you have admitted responsibility for your crime, and you have advanced the administration of justice.  Because you have pleaded guilty, you are entitled to receive a reduced sentence.  This will be reflected in the sentence that will shortly pass. 

18I also treat your guilty plea as evidence of your remorse for this offending.  When you pleaded guilty, you also admitted a lengthy criminal history.  You are now aged 52 and are of Aboriginal descent, and you have spent most of your adult life in gaol.  You admitted prior convictions in Victoria from 37 previous appearances, not including appeals.  You also have prior convictions in New South Wales and South Australia. 

19In Victoria, you have a number of prior convictions for, amongst other crimes, assault, recklessly causing injury, reckless conduct endangering serious injury, as well as drug and alcohol and driving and dishonesty offences.  In New South Wales, amongst other offences, you have two prior convictions for assault occasioning actual bodily harm, and in South Australia, you have a prior conviction for armed robbery.

20On 14 June 2018, you were before the Mildura Magistrates' Court and dealt with for breaching a community corrections order.  You had breached a community corrections order that had been imposed only two weeks earlier.  The community corrections order was varied, and you were sentenced to two months' imprisonment, with the community corrections order varied to run for 12 months from your release from prison. 

21The effect of all that is that at the time of this offending on 14 August 2019, you were still subject to a community corrections order originally imposed in
May 2018.  That is an aggravating feature of your offending here. 

22Clearly, in sentencing you for this crime, I must have proper regard to sentencing principles of general and specific deterrence, denunciation and of the need to protect the public.  But I must also have regard to your prospects for rehabilitation and my sentence must amount to just punishment. 

23You were born and raised in the Mildura area.  You are a Barkindji, deriving from your father.  You were the second youngest of seven children.  None of your siblings have been in trouble with the law and have gone on to lead successful lives.  I was told and accept that, to some extent, you were rejected by your father because of perceived intellectual deficits. 

24Your parents separated about 10 years ago after a long marriage.  Your mother remains very supportive of you, as do your siblings.  You have six children from three significant relationships and 13 grandchildren.  Your son, Jack, who lives in Melbourne, is happy to have you live with him. 

25You had very little education.  You left school at age 12.  You describe yourself as illiterate.  Because you have spent so much of your adult life in prison, you have limited formal work history, but you have engaged in casual farming work in the Mildura area.  I was told and accept that over a number of years you have had significant problems with drug and alcohol abuse.  I was told and accept you have remained drug free in a custodial setting (Exhibit 4). 

26I accepted into evidence a neuropsychological report prepared by Lindsay Vowels, dated 16 February 2012 (Exhibit 2).  When seen for the purpose of that assessment, you told Ms Vowels of your longstanding drug and alcohol issues since adolescence.  You have long used amphetamines and you have tried heroin, and at the time of the assessment, you reported ongoing heavy use of cannabis.  You also told Ms Vowels that you had been a reasonably successful professional boxer. 

27Ms Vowels carried out various psychological tests, after which she thought your full scale IQ was 75.  She thought you suffer from an acquired brain impairment, as well as depressive mood disorder with adjustment difficulties, as well as some form of psychiatric disability and substance dependence, chronic. 

28You have engaged in a number of programs at different times to address your problems with drug and alcohol (Exhibit 3).  You completed the Daybreak program, run by Sunraysia Community Health (Exhibit 5), a non-residential drug and alcohol program as part of a condition of a community corrections order.  During this program in 2017, you were tested for drugs and alcohol on a daily basis and reported negative results.

29Because you suffered from acquired brain impairment, you are eligible for and receive a disability support pension.  I accept that, from time to time, you have demonstrated some motivation to rid yourself of drugs and to stop drinking.  I accept that because of prolonged drug and alcohol abuse, you find yourself in a vortex, making it difficult for you to rehabilitate at the age of 52. 

30I received into evidence a number of certificates of courses undertaken and completed by you whilst in custody.  I was told and accept that you have good family support, and that you are keen to embrace and participate in a course organised and run by Wiimpatja Healing Centre to address drug addiction and relapse prevention. 

31I received into evidence a number of references of support from your son, Jack Hagen, and your mother, Evelyn.  I also received into evidence a letter concerning this course, provided my Mellee District Aboriginal Services, dated 22 May 2020.  That letter advises there is a bed available for you until 2 June at Wiimpatja Healing Centre, near Warrakoo Station in outback New South Wales. 

32Ms Buxton asked me to defer sentencing of you under s.85 of the Sentencing Act 1991 and to release you on bail to enable you to partake in the Wiimpatja Healing Centre program, which would run for 12 weeks. I have given this request a deal of thought since the plea.

33Regrettably, for you, I have decided that I must not take this course.  In my judgment, this is not a matter appropriate for sentence deferral.  Your criminal history is too long and littered with crimes of violence.  In the past you have received a number of dispositions to try to assist you to rehabilitate and all have failed.

34I think at the age of 52, a program such as Wiimpatja Healing Centre is unlikely to change you.  The fact this offending occurred whilst you were the subject to a community corrections order is a concern, and there is a need here to protect the public.  Sadly, I have concluded that your prospects for a full rehabilitation remain poor. 

35On the charge of intentionally causing injury, you are convicted and sentenced to a term of imprisonment of two and a half years. 

36I direct that you serve a minimum term of 16 months imprisonment before being eligible for release on parole.  I direct a period of 108 days as to be reckoned as having been already served of the sentence passed this day, and I direct that 108 days pre-sentence detention be entered into the records of the court and be deducted administratively.

37For the purposes of s.6AAA of the Sentencing Act 1991, had it not been for the fact you pleaded guilty to the charge, I would have imposed a head sentence of four years' imprisonment, and I would have fixed a non-parole period of three years. Are there any questions arising out of that, Ms Buxton?

38MS BUXTON:  No, thank you, Your Honour. 

39HIS HONOUR:  Mr Bosso?

40MR BOSSO:  Mr Bosso, Your Honour.  Just a disposal order, Your Honour. 

41HIS HONOUR:  Yes.  I have been requested to sign a disposal order,
Ms Buxton; is there any opposition to that?

42MS BUXTON:  No, no opposition.  Thank you, Your Honour.

43HIS HONOUR:  It relates to a baton or torch.

44MS BUXTON:  Yes, yes, that was discussed last time.  Thank you, Your Honour.

45HIS HONOUR:  Thank you.  Now, Mr Hagen, I am going to have my tipstaff terminate the transmission with the prosecution and allow him to just keep the transmission on for a couple of minutes, whilst it gives you the opportunity to speak with Ms Buxton.

46MS BUXTON:  Thank you, Your Honour, that would be greatly appreciated.

47MR BOSSO:  As Your Honour pleases. 

48HIS HONOUR:  Otherwise adjourn the court till 10 of course.

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