Director of Public Prosecutions v Hainsworth

[2016] VCC 1253

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

AT MILDURA
CRIMINAL JURISDICTION

CR 15-01480

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN HAINSWORTH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	23 August 2016
DATE OF SENTENCE:	24 August 2016
CASE MAY BE CITED AS:	DPP v Hainsworth
MEDIUM NEUTRAL CITATION:	[2016] VCC 1253

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Taylor
For the Accused	Mr N. Goodfellow

Pages 1 - 10

 

 

HIS HONOUR: 

1On 13 April 2015 you attended at the unit of a Mr Michael Zagar.  You and Mr Zagar had both had contact with your girlfriend. Text messages had been exchanged.  It is agreed that those text messages which were being sent backwards and forwards were aggressive and provocative.

2In the end, it may well be that he had to have given you the address for you to attend, you attended at his premises to confront him over all this.  Apparently he and your partner had met in some sort of psychiatric institution.

3In any event, Mr Zagar says at approximately 8.45 pm, you attended at the unit.  Once at the unit you forced entry by tearing down the flyscreen and kicking the wooden door three times, breaking it in.  That damaged the secure door and locked timber door, and resulted in you gaining access to the unit.  That is the criminal damage.

4You had with you a can of Woodstock bourbon and a bottle of Crown lager in your pocket.  Once inside, Mr Zagar retreated to his bedroom, trying to get away from you.  You then assaulted him by throwing the Woodstock can and a glass bottle - I accept they were not taken there as weapons, but utilised on the spur of the moment - and three steel chairs which were in the unit at him.  He sustained injuries above his eye, to his left hand, and to the back of his leg.

5Having seen in your record of interview your version of events and his, I suspect that rather than three separate chairs being thrown, you may have hit him three times with the one chair, because there is a damaged chair found, but I think in the end that makes very little difference.  The fact of the matter is, you did not, I find, attend with a weapon.

6In any event, after this you left the unit.  You were disturbed by two female neighbours as you were coming down.  You charged at them whilst holding a chair, shouting out, "Do you want some too?"  That does not aggravate the offending, it just displays the state of mind that you were in at the time.  Those two females fled.

7Police were called and spoke to Mr Zagar.  He was taken to the Mildura Base Hospital.  He was treated and was found to have a fractured eye socket, a fractured left hand, and bruising and swelling to the left leg.  They, in my view, are at the upper end of injury as it is now defined. The Crown lager stubby was found and a damaged steel chair.  The Woodstock can of alcohol was also discovered.

8You were arrested by police and interviewed.  You pointed out that the victim had been messaging your for days and had given you his address.  I do not accept much of what else you said to the police in that interview.  I certainly do not accept that the victim opened the door naked with a knife in each hand.  I do not think your counsel is sensibly suggesting that that was the case.

9I would have some doubts as to your capacities at the time all this occurred, and I note from the material that indeed you had attended at the Mildura Hospital with suicidal ideation at around about this time.  I would not hold too much against you in terms of explanations or potential untruths that you might have said.

10In any event, you in the end have pleaded guilty to these charges, and must get the benefit of that, and you have now been in custody for an extended period of time.

11The victim in this matter was clearly very frightened, and probably, from what I can see of this, a vulnerable person.  He had psychiatric problems, and it is clear from his victim impact statement that the problems for him are ongoing.  It is a moderate victim impact statement, but points out the anxiety and being afraid to go out.  And they are quite usual occurrences that occur with offending of this nature.

12Because of those consequences, aggravated burglary has to be, in the normal course of events, regarded as a serious offence.  Intentional injury speaks for itself, as does criminal damage.

13In this particular situation, where the incident was an ongoing matter over probably just a couple of minutes, I intend to impose an aggregate sentence, as I understand I am entitled to, without trying to make some sort of intellectual distinction between the three charges.

14It must be regarded as serious.  It calls for the application of general and specific deterrence, denunciation and appropriate punishment, and to a degree - I do not put this at any very high level, with your potentials or what you have shown in the past, an element of public protection.  That public protection in my view can be achieved by you being on a community corrections order after you finish the gaol sentence which I impose.

15You participated in Koori Court and you had the courage to face the elders and own up to what you had done.  You presented well in that scenario, whether you were putting it on or not, I will never know.  Or may know one day, I suppose.  But in this situation, I am prepared to accept that you are genuine in your determination to rehabilitate, and that is to a large extent exemplified by the number of courses that you have done.

16I am well aware that for a person on remand, it is a difficult task to get into courses, and you have completed a significant number, and it is very much to your credit.  I also am told that you have done courses in relation to your Koori heritage.  Again, that is very much to your benefit, and if you are serious about that, that can be pursued and may ultimately assist you very much in your rehabilitation.

17I am aware that the gaols in Victoria have far better Koori programs than gaols in other states, which may be why you have not done any of this in our previous gaol sentences, which from recollection were in South Australia.  Be that as it may, I take all those matters into account.

18You are 41.  You have children.  It is clear from the history that is given and the submissions that were made, as well as the report of Dr Lechner, which I obviously take into account.  The report from Ms Lechner describes your history, and essentially childhoods do not make a lot of difference when you have reached the age of 41.  But you were the third of four children.  You had previous relationships, and you have children.

19You grew up in South Australia, went to year ten, and you believe that you had the possibility of suffering ADHD as a child.  You pointed out that your mother and father used to fight a bit.  There was violence involved, and indeed you had seen your mother stab your father.  You said that they had stopped drinking about 20 years ago, and that that family life had improved dramatically because of that.

20You did play sport for a period of time.  After leaving school, you had a work record of sorts, at various jobs as a labourer and as butchers for a period of a couple of years, and in a recycling factory.  You are now in a situation where you will be getting a disability support pension, or you will be applying for a disability support pension upon your ultimate release, and I am sure that Corrections will be able to assist you with that.

21Insofar as your personal health concerns, you were diagnosed with polycythaemia, which is a blood disorder, some year or so ago.  You have been receiving treatment for that, and as I understand at the moment you are in the clear, though have to keep having tests in case of it returning.  Initially you were apparently told your symptoms were psychosomatic, so it took some time before a proper diagnosis was made.

22Whilst that might be an anxiety for you, it does not seem to me that it would make gaol any harder, though I accept that your overall circumstances probably mean that in your situation a gaol sentence is more onerous than it might be for others, though as we are all aware, there are a lot of people in gaol with emotional problems.

23In any event, you have over the last couple of years had various complaints.  You had concerns about hearing a voice in your head, which may well be alcohol-related.  In the end, you have a drug and alcohol history, started drinking very young, and you clearly in my view have at least moderate brain damage from the alcohol that you have consumed.  Your cognitive deficiencies and the like in a situation like this, there would be no point in adjourning to try and get a neuropsychologist or anything like that; the circumstances are pretty clear.

24The ultimate conclusions of Ms Lechner are that you have an alcohol use disorder, major depression where I note it was extreme, and post-traumatic disorder from having been shot at some stage, while understandably resulted in a high level of anxiety.  You have diminished cognitive function, which gives rise to poor decision-making and impulse inhibition.  It is suggested that there be a further neuropsychological assessment.  I will leave that to Corrections.  It is not something that I think is going to necessarily assist me here.

25There is also a suggestion in her report that there be further investigation of your cognitive decline and the auditory hallucinations that you report.  You were intoxicated at the time of the offending.  The rest of the report goes into the testing that was carried out, which I think I have accurately summarised.

26Upon your release, you have told us at the sentencing conversation that you will be able to go and reside with an ex-partner here in Mildura, and you will be looking after her.

27The Crown position was that a very significant gaol sentence was called for.  I have considered all the matters.  I think in your particular situation I am prepared to take into account that you do seem to be making genuine attempts to rehabilitate.  You do have somewhere to go.  You have done all these courses in gaol and are optimistic about obtaining employment, and I take all those matters into account.

28You have now been in custody for 400 days.  You were this morning sentenced in the Magistrates' Court to 90 days, which ate up 90 days of the pre-sentence detention, which means that you in effect now have 310 days of pre-sentence detention.  I was not aware of that until this morning, and accordingly, whilst I have formed the view that the situation does call for you to do an extra period of time in gaol, that is not be released immediately, I have reduced that, bearing in mind what I have been told this morning on a Renzella basis.  That is the only fair way of going about it.

29I have had you assessed for a community corrections order, and you were found to be acceptable, and they find you to be acceptable with a number of conditions.

30The community corrections order will be with conviction, will be for 18 months, and will commence upon your release from prison.  I will be including the conditions that were recommended, which will be supervision, drug and alcohol, mental health and medical, and I also put in offender behaviour programs in case there are other matters that they think might be necessary.  There will be no work hours in that community corrections order, because your gaol is the active component of punishment.

31Accordingly, taking all those matters into account and hoping that your prospects for rehabilitation as you have described, a reasonably good, which should see a lowering of the risk of your reoffending, on the three charges you are sentenced to be imprisoned for an aggregate period of 15 months.  I direct that 310 days be reckoned as having been served under that sentence.  And if you agree, be placed on a community corrections order to follow on upon your release from prison.

32MR GOODFELLOW:  As Your Honour pleases.

33HIS HONOUR:  Did everybody understand that?

34MS TAYLOR:  Your Honour, I've just had some instructions in relation to that PSD issue.

35HIS HONOUR:  Yes?

36MS TAYLOR:  I'm sorry, Your Honour?

37HIS HONOUR:  Yes.

38MS TAYLOR:  It's not particularly clear to me, but apparently we've been instructed that another way of doing it would be - well, the proper way of doing it in this case, because she didn't specify where the 90 days came from, 90 days should come off the PSD that relates to this matter, if that makes any sense to Your Honour.

39HIS HONOUR:  That is what I have just done.  See, he has been in custody for 400 days, right?  Now, we worked out I think it was 37 days related only to the matters for which the magistrate sentenced.  So that has got to be where that came from, unless she has made it, which I do not think anybody is suggesting.

40MS TAYLOR:  Excuse me, Your Honour.

41MR GOODFELLOW:  May I approach, Your Honour, just very quickly?

42HIS HONOUR:  Yes, well you had better find out what this is about first.

43MS TAYLOR:  I think we'll leave it as Your Honour's indicated.

44HIS HONOUR:  Well, there is no other rational explanation.  He has been on remand for the matters that she sentenced him for, for 400 days.  She has used 90 of that 400, at least 310 for this.  Simple.

45MR GOODFELLOW:  Yes, Your Honour.

46HIS HONOUR:    Anyway, there are no other orders I had to make?  You already had a 464, as I recall?  I do not have one, so I am assuming that was not the case.  You must have, for this.  There is no application before me, so I will just say nothing.

47MS TAYLOR:  No other orders, Your Honour.  No orders.

48MR GOODFELLOW:  No, there's no others.

49HIS HONOUR:  No application.  All right.  And there are no other orders at all I have to make?

50MS TAYLOR:  No.

51MR GOODFELLOW:  No, Your Honour.

52HIS HONOUR:  No, all right.  Well, you explain to your client.

53MS TAYLOR:  Unless Your Honour wanted to do the 6AAA.

54HIS HONOUR:  Not with the combination.  6AAA does not relate to the section that says you can combine sentences.

55MS TAYLOR:  Not to the CCO, but to the - he's received ‑ ‑ ‑ 

56HIS HONOUR:  No.  When you give a gaol sentence with a community corrections order attached to it, the section that gives rise to the 6AAA, does not incorporate the section that gives rise to the jointed sentence.

57MS TAYLOR:  To the CCO.

58MR GOODFELLOW:  I will, Your Honour.  I'll go now and explain.

59HIS HONOUR:  I mean, I cannot do the maths, but yes, it is about four months to go or something.

60MR GOODFELLOW:  Four months, that's right.  Yes, Your Honour.

61HIS HONOUR:  We had better get him to sign the CCO, or it will turn ugly.

62MR GOODFELLOW:  Can I just approach?  I'll explain that, Your Honour.

63HIS HONOUR:  Yes, of course you can.  All right, what I have done, Mr Hainsworth, you have got about an extra three or four months.  I cannot quite work that out.  You might be in luck, depending how Corrections interpret this morning's order, but I think I have got a rough idea of what will happen.  What you have got to do is, when you do get released, you have got to turn up to Mildura to start the CCO.  Sometimes that know you are coming out, and they will be in touch with you before you come out so you are reminded of it, but it is really important that you do that, all right?

64I have put a number of those programs are "may not needed", as the alcohol, the drugs, the reducing risk of reoffending, so there are other things you might be able to do; courses and various things like that.  So all of those assistances will be there for you when you get out.

65Now what I want you to bear in mind, I have made an 18 month one, not for two, three years, that type of thing.  But it is for 18 months.  But realistically what it amounts to is that that is taking the place of what would have been the head sentence.  Do you follow what I am saying?

66So if you reoffend and mess the CCO up and you are brought back to be re-sentenced, you will get a whack.  Fair enough?

67OFFENDER:  Yep.

68HIS HONOUR:  All right, just so you understand that.  It is not as if you are breached, you come back and get another couple of months.  It will be a lot more than that.

69OFFENDER:  Yep.

70HIS HONOUR:  All right, unless your barrister can talk me out of it, which he will struggle to do.  So you follow that?  So just keep your nose clean, and 18 months, and they are there to help you, and that will be all right.

71OFFENDER:  Right.  Thank you, Your Honour.

72HIS HONOUR:  All right, thanks for that.  Yes, thanks Ms Taylor.  We will get that to sign and I will sign it.  Thanks, Mr Goodfellow.  All right, that is made.  Thanks Mr Hainsworth.  Thanks, Mr Goodfellow.

73MR GOODFELLOW:  As Your Honour pleases.