Director of Public Prosecutions v Haillay

[2019] VCC 2223

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01400

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON HAILLAY

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019
DATE OF SENTENCE:	19 December 2019
CASE MAY BE CITED AS:	DPP v Haillay
MEDIUM NEUTRAL CITATION:	[2019] VCC 2223

REASONS FOR SENTENCE
---

Subject:Kidnap, Aggravated burglary & ors, Family violence

Catchwords:              Aggregate sentence

Legislation Cited:

Cases Cited:DPP v Bowden [2016] VSCA 283; Hogarth v the Queen [2012] VSCA 302; DPP v Meyers (2014) 44 VR 486; Marrah v R [2014] VSCA 119

Sentence:3 years and 3 months imprisonment with a minimum of 2 years before being eligible for parole

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Serratore	Office of Public Prosecutions
For the Accused	Mr S. Tovey

HER HONOUR: 

1Jason Haillay, you have pleaded guilty on indictment to charges of kidnapping, aggravated burglary, causing injury intentionally, common assault and make threat to kill.  You have also pleaded guilty to a summary charge of unlawful assault.  All of this offending occurred on 14 January of this year.

2In sentencing you for these crimes, I must have regard to the maximum penalties for each of the offences that you have committed.  The maximum penalty for kidnapping and aggravated burglary is 25 years imprisonment.  Intentionally cause injury and making a threat to kill carry a maximum penalty of 10 years imprisonment.  Common law assault carries a maximum of five years imprisonment, and the summary offence of unlawful assault has a maximum penalty of three months imprisonment.  These maximum penalties are reflective of the seriousness with which Parliament regards these offences.

The offending

3The circumstances of your offending are set out in a document titled “Summary of Prosecution Opening for Plea” dated 25 September 2019.  This is what is called an agreed document and represents an acceptance by you of the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.

4In short compass, the primary victim of this offending is Cheree Sexton, with whom you were in a relationship for approximately three years.  This relationship ended about one year prior to the offending.  After the relationship ended, you continued to reside with Ms Sexton for some months, although in the lead-up to this incident, you had not lived together for about three months.  The romantic relationship was well and truly over, yet you maintained contact with each other.  You also had some personal belongings at Ms Sexton’s home and had possession of an entrance key.  Ms Sexton allowed you to attend her home and at times stay overnight when you were intoxicated.  You certainly had a well-established problem with alcohol by January 2019.

5On the weekend of 12 and 13 January 2019, Ms Sexton let you attend at her home to care for her cat whilst she was at a wedding.  Ms Sexton had also asked you to remove your personal belongings from the home.

6When she arrived home on the night of 13 January 2019, you were intoxicated and passed out on the couch.  Ms Sexton went to bed.

7When Ms Sexton awoke the following morning, you were angry at her and threatened to put latex into her food.  Ms Sexton is highly allergic to latex and you knew of this allergy.  You also threatened that you would attend
Ms Sexton’s place of employment to claim that you had taken out an intervention order against her so that she would lose her job.  You further said you would drive her car illegally so it would be taken by police as you were a disqualified driver at that time, which would render Ms Sexton incapable of using the vehicle to get to work.  This burst of anger and its associated threats appears largely unexplained.  These facts form context for what later unfolded and you will not be punished for them.

8Ms Sexton eventually left the home and went to work.  When she returned home that same afternoon, you were still present and had again passed out, drunk, on the couch.  Ms Sexton told you to inform her when you were sober so that you could organise another time to remove your furniture from her home.

9At this time, you rummaged through Ms Sexton’s bag and took her phone.  When she tried to get it back, you pushed her down on the couch and kept her there by grabbing the hair from the back of her head.  She felt immediate pain and screamed out loud for help.  Her distress at this time would have been obvious to you.  Once again, your behaviour appears to be without any clear context.

10Neighbours, Mrs Carter and Mr Kadlecik, who reside at unit 14, heard
Ms Sexton screaming.  They called emergency services requesting police attendance.

11Meanwhile, Ms Sexton was able to free herself and fled to Ms Carter and
Mr Kadlecik’s unit.  Mr Kadlecik locked the front door.  Ms Sexton sat on the couch trembling and crying into her knees.  A short time later, undeterred, you attended Mr Kadlecik’s unit, began knocking on the door and attempting to open it.  You called out to Ms Sexton, saying “Cheree, come out.  I can hear you crying.  I can be out of your life in 20 minutes if you just come outside”.  You began to threaten Ms Sexton, saying her life was at risk and that you would kick the door in.  

12You continued to threaten Ms Sexton by saying “You don’t have to get them involved”, and words to the effect of, “Only one of us have to die if you come outside”.  You then threatened, “You will die, I will kill you, you will die”, and “You are endangering their lives as well”.

13Understandably, all three of the occupants inside the home were fearful for their safety.  You said words to the effect of, “If you don’t come out, I’ll kick the door down.”  You then counted to three and began to kick the front wooden door of the unit.  Ms Carter placed a portable air conditioner behind the door in an attempt to block it.  You continued to kick at the door until the lock broke and the door swung open.  You then entered the unit and said “Where is she?” 
At this point, the charge of aggravated burglary was complete, as you had entered as a trespasser with intent to commit an offence involving an assault to a person therein.  You, of course, did so knowing there were persons inside.

14Aggravated burglary is an extremely serious charge.  In terms of the charge of aggravated burglary, I reflect on the recent decisions of the Court of Appeal which include that of DPP v Bowden [2016] VSCA 283, DPP v Hogarth [2012] VSCA 302 and DPP v Meyers (2014) 44 VR 486. I have had recourse to each of those decisions. In DPP v Meyers, the Court referred to Hogarth and said that:

“Hogarth established that current sentencing practices for serious forms of aggravated burglary need to change, as they did not reflect the objective seriousness of such offending.  Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.”

15Further, the decision of Meyers referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence, and included a number of non-exhaustive considerations as being relevant to such an assessment.

16In terms of this aggravated burglary, you ran into the victim’s unit, under some obvious resistance, in circumstances that were both violent and confrontational.  I accept that your offending was relatively spontaneous.  There was no weapon.  You were under the influence of alcohol, which in no way, of course, excuses your behaviour.  I accept the submission made by both parties that for an offence of aggravated burglary, it is towards the lower end for an offence of its type.

17Returning to the aggravated burglary, your intent on entry is a significant feature going to the gravity of this charge and is informed by the actions which took place once inside the premises.  As I have already said, I bear in mind the offence of aggravated burglary is complete upon entry and any sentence on that particular charge does not involve punishment for what happened post entry.

18In terms of what then did occur, both Ms Carter and Mr Kadlecik attempted to protect Ms Sexton by standing in front of you and blocking your passage. 
You then pushed your way past each of them and grabbed hold of Ms Sexton by the scruff of her hair.  You dragged her towards the door.  Ms Carter yelled for you to let go and grabbed hold of your right arm.  You then turned to face Ms Carter and made a fist with your left hand.  She thought she was going to be assaulted so let go of your arm.  Your behaviour at this time forms the basis of common law assault of Ms Carter and the related summary offence of the unlawful assault of Mr Kadlecik.

19You dragged Ms Sexton out of the unit by her hair and across the driveway. 
At this point, the charge of kidnapping began.  When you briefly let go of her hair, Ms Sexton attempted to get up and run away but was unsuccessful. 
You again grabbed her by her hair and said “This isn’t going to end well”. 
You continued to drag her by her hair into her own unit.  She was screaming in pain and feared for her life.

20Once inside the unit, you maintained your grip on her hair and with your free hand, grabbed her around the throat and while so doing said, “I will kill you”. 
Ms Sexton felt she was unable to breathe and thought she was going to die.  The Crown’s position is that the threat to kill that forms the basis of Charge 5 on the indictment is the threat particularised in paragraph 21 of the Crown opening, namely, “as the offender had hold of Ms Sexton’s neck, he said ‘I will kill you’”.  This threat should be taken into account with the other threats to kill made by you to Ms Sexton as particularised throughout the opening, and particularly paragraph 17.  The threat to kill that forms the basis of Charge 5 was not an isolated threat to kill, it is a representative charge and what I have just stated is an agreed position.

21With your hands still around Ms Sexton’s neck, you then slammed her head into an upright metal heater, causing Ms Sexton to immediately feel pain to the back of her head.  This incident was actually heard by another neighbour, Jamie Maxfield, who heard muffled yelling and a loud thud.  The thud was such that he felt the ground shake beneath his feet.  You then bit Ms Sexton’s left hand twice, causing her pain which resulted in a mouth-shaped mark to the top and bottom of her hand.  This second savage and brutal attack on Ms Sexton whilst in her own unit lasted for approximately two minutes.  You eventually stopped and said that you were done and left the premises.

22Make no mistake, your offending is family violence.  General deterrence is the primary sentencing objective for family violence offences.  In Marrah v R [2014] VSCA 119, the Court emphasised the need for general deterrence, stating that:

“The sentence must convey the unmistakable message that male partners have no right to subject their female partners to threats or violence.  The sentences must be of such an order as to strongly denounce violence within a domestic relationship.”

23Your behaviour represents that which is unacceptable, appalling and which I have little doubt Ms Sexton found terrifying.  It was somewhat protracted.  In addition, Ms Sexton’s neighbours would have been fearful for both their own and her safety.  You made each of them witnesses to your violence and aggression.  You intruded into their home in an aggressive fashion.  You abused the trust of Ms Sexton and the environment which she had allowed you to use.  Each of these homes were places in which the occupants were entitled to have sanctity and feel safe.  You gave no thought to anyone but your own needs in this context.

24Police arrived shortly later and located you walking a short distance away from the unit.  You smelled strongly of alcohol and appeared to be alcohol affected.  You were subsequently arrested and conveyed to the Sunbury police station for interview.

Your interview

25In that interview you made partial admissions.  Throughout the interview, you minimised the offending and at times attempted to blame Ms Sexton for what occurred.  You told police that Ms Sexton will make up stories in order to get you into trouble, that she cries rape all the time, exaggerates things and was a very good manipulator.  You certainly failed at this stage to take full responsibility for your offending.

The injuries

26Ms Sexton was examined by Dr Moynihan at the Victorian Institute of Forensic Medicine.  She presented with a continuing headache and dizziness post assault and felt intermittently faint.  She was also experiencing a tight feeling in her neck and felt that her symptoms were worsening since the time of the incident.  Dr Moynihan documented injuries to Ms Sexton’s head, neck, chest, abdomen, back, both legs and left arm.  Petechial bruising was noted to the neck.  Dr Moynihan concluded blunt force trauma with friction occurred to multiple areas and planes of Ms Sexton’s body, which is supportive of the sustained nature of your attack upon her.  It is more good fortune than good management that her injuries were not more severe.

27I have had recourse to a victim impact statement authored by Ms Sexton in which she details the impact upon her psychologically and emotionally over and above the physical impact of your offending upon her.  The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.  The effects of your offending upon Ms Sexton are both profound and enduring.  Her victim impact statement was read to the court so its contents cannot be lost upon you.

Personal circumstances

28I now turn to your personal circumstances.  You are presently 35 years of age and are the eldest of four siblings.  You grew up in a stable and supportive family environment and maintain a close relationship with your parents and siblings.  During primary school, you were diagnosed with dyslexia, which has had a substantial impact upon your education.  Notwithstanding that, you were able to complete a Year 12 education.  You were the subject of bullying during your school years.  You have used cannabis since the age of 16 years and have had a problem with alcohol from your late teens.  On leaving your secondary education, you went on to complete a diploma in theatre and also commenced a diploma in graphic design.  You have a Certificate IV in sign language but did not go on to complete the relevant diploma due to your dyslexia.

29Your working history has generally been in the performing arts field, in particular working as a clown at functions and children’s parties.  You also receive a disability support pension.  I have been provided with medical material which notes that, at various points, you had a problem with alcohol consumption. 
Medical records indicate that you requested a mental health plan in May 2018. 

30Two letters were tendered from Dr Trish Melzer, psychologist, dated 7 June 2018 and 12 September 2018.  In the latter document, she writes to your general practitioner indicating that your needs cannot be addressed in the limited number of meetings allowed by Medicare.  She refers to your ongoing use of substances and that it was not intended that you would attend any further appointments with her.  She discussed with you the possibility of seeking longer term psychotherapy.  I do not understand that you followed through with this suggestion.

31You have one prior matter recorded, which was for being drunk in a public place, for which you were convicted and discharged at the Melbourne Magistrates’ Court on 6 May 2008.  This takes the sentencing process nowhere, effectively, other than it supports your ongoing problem with alcohol.  It is also relevant in the sense that you have almost no prior criminal history, which in turn is relevant to your prospects for rehabilitation.

32Also tendered on your behalf were a number of character references from friends and family.  Whilst the referees have known you at different times and in different contexts, all of them speak of your offending as being out of character.  Some of them speak of your remorse and regret.  You have had the good fortune to be visited regularly by family members.  It is evident from these references that you are well supported.  Now that they are aware of your offending and your alcohol problem, this support may offer more than it has in the past.

33You have chosen not to apply for bail.  I accept the time that you have spent in custody on remand is capable of acting as both a sanction and a deterrent, and I take this into account. 

34You have completed a number of learning and training programs whilst on remand.  You have completed programs on adapting to the prison environment, a program entitled Alcohol and Me, a Learning for Life program, accommodation support programs, a 24-hour alcohol treatment program and other vocational type programs.  You are yet to really address any programs that specifically relate to your mood and ability to negotiate intimate relationships.  You have used your time wisely whilst on remand but in my view there is still more work to be done.  Considering all the materials before me, and your continued willingness to seek assistance and use supports that are available to you, your prospects for rehabilitation are assessed as good.

35I do accept, on the balance of the materials before me, that your offending can accurately be described as out of character, yet it is still very disturbing.  With this in mind, particularly the severity of your actions on 14 January 2019,
I requested a psychological and risk assessment to be undertaken.

Risk assessment

36A report from Associate Professor Troy McEwan from Forensicare dated 16 December 2019 was prepared and is of assistance to the sentencing task. 
I have taken further submission from the parties in relation to this report and have taken those submissions into account.  Associate Professor McEwan refers to your building resentment towards Ms Sexton in the lead-up to your offending, as you perceived that she had control over you.  You say she taunted you with threats to tell your friends that you had sexually assaulted her during your relationship.  You reported thinking about spiking her food with latex to which she has a fatal allergy. 

37Your account to Associate Professor McEwan shed some light on your thought processes on 14 January 2019 which would otherwise appear as severe anger and violence in an otherwise unprovoked setting.  In your account of your offending to him, you described thinking at the time that your actions were not that bad and you minimised your abduction of Ms Sexton, noting to him that you dragged her for less than 60 seconds.  You told him that you did not have a clear recollection of the offences but that it would be “dumb not to believe the woman”.  It does not appear that you expressed to him any remorse.  At the time of your interview with Associate Professor McEwan, you had not yet reached the point of understanding the full extent of your wrongdoing.  This is of concern.

38He assesses you as having an alcohol use disorder, as well as having a mild episode of major depressive disorder.  Associate Professor McEwan opines that you endorse a range of personality characteristics consistent with a narcissistic and attention seeking personality style, particularly feelings of entitlement and grandiosity, and using others to meet your practical and emotional needs and to enhance your own self-image.  Such factors are likely to set you up to experience resentment in your close relationships.

39In his view, your offending can best be understood as an extreme reaction in the context of a problematic personality style and your drunkenness. 
Associate Professor McEwan states, “Given his general history of effective regulation of his behaviour, even when emotionally aroused, it is possible that Mr Haillay may not have engaged in the index offences, or at least not have continued with his offending to the same extent, were he not intoxicated”.

40On the balance of the materials, I am prepared to reduce the weight somewhat given to your moral culpability.

41In terms of risk assessment, Associate Professor McEwan assessed you as presenting with a medium level of risk and needs which require lifestyle interventions to reduce your risk of future offending upon your release. 
A specific risk assessment of intimate partner violence was completed. 
You are not judged to present a high risk of further intimate partner violence towards a future partner, however Associate Professor McEwan states,
“Whilst Mr Haillay is not judged to present a high risk of future intimate partner violence, his personality style does place him at increased risk relative to others given his sensitivity to negative evaluation”.  In his view, it was foreseeable that, if you again become embroiled in a highly conflictual intimate relationship, return to alcohol abuse, and experience an insult to your self-esteem, that you may well react with aggression.  He was of the view that should you be released into the community under supervision, and that it would be beneficial to reassess your risk at that time.  He is of the view that you would benefit from a men’s behaviour change program. 

42You would clearly benefit from treatment in relation to alcohol abuse.  I understand that you are currently abstinent and wish to remain so.  I certainly accept that you should complete some form of men’s behaviour change program as well as psychological assistance to help you regulate your behaviour and manage your emotions.  I do remain somewhat concerned at this stage for any future romantic relationship.  The nature of your offending and the circumstances in which it unfolded are such that weight to specific deterrence must still attach.

43You have pleaded guilty at an early opportunity.  Your plea of guilty has utilitarian value.  It has saved the court time and expense and, more importantly, saved the witnesses the need to attend and relive the events of 14 January 2019.  I accept that, at least to family members, there has been some indicators of remorse.

44The purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of your offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

45I have taken into account the relevant sentencing guidelines referred to in
s.5 of the Sentencing Act where relevant to your case.  I have also taken into account current sentencing practices for the offences to which you have pleaded guilty.

46I make the ancillary order as sought for a forensic sample.  This will involve taking a scraping from the inside of your mouth and going onto a database. 
I am obliged to tell you that should you not participate in this process, that reasonable force can be used and a blood sample can be taken.  I make this order noting it was not opposed and taking into account the seriousness of the circumstances of the offending, and in my view the granting of the order is in the public interest.

47I propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts, or form, or are a part of a series of offences of the same or similar character.  This view is supported by the degree of overlap between the charges.  It is in effect one event with a number of components and I must view the incident as a whole.  In so doing, I bear in mind the principles of both totality and proportionality.

48You are convicted and sentenced to three years and three months imprisonment. 

49You are to serve two years before being eligible for parole.  This lengthy period of parole is designed to assist your transition back into the community, with adequate service supports to reduce any risk with which you may present on further offending. 

50I reckon 339 days as having already been served.

51Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced to you a total effective sentence of four years and two months, with a minimum of two years and nine months before being eligible for parole.  And I hope that pre-sentence detention was correct.  I did not check that with counsel before I commenced.

52MR TOVEY:  Certainly my calculation.

53HER HONOUR:  All right.

54MR SERRATORE:  We agree, Your Honour.

55HER HONOUR:  Any issues arising?

56MR TOVEY:  No, Your Honour.

57MR SERRATORE:  No, Your Honour.

58HER HONOUR:  All right.  Thank you.

‑ ‑ ‑