Director of Public Prosecutions v Hall
[2021] VCC 971
•15 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01684
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KADE HALL |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 July 2021 |
DATE OF SENTENCE: | 15 July 2021 |
CASE MAY BE CITED AS: | DPP v Hall |
MEDIUM NEUTRAL CITATION: | [2021] VCC 971 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Persistent contravention of a family violence intervention order; threat to inflict serious injury; aggravated burglary; threat to kill; contravention of order intending to cause harm or fear for safety
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Johnson [2011] VSCA 288; Marrah v The Queen [2014] VSCA 119; Worboyes v The Queen [2021] VSCA 169
Sentence:11 months imprisonment and community corrections order (18 months, drug and alcohol treatment, Men's Behaviour Change program, mental health treatment)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Bolton | Office of Public Prosecutions |
For the Offender | Ms E. Millar | Victoria Legal Aid |
HER HONOUR:
1Kade Hall, you have pleaded guilty on indictment to charges of persistent contravention of a family violence intervention order, threat to inflict serious injury, aggravated burglary, threat to kill and contravention of order intending to cause harm or fear for safety.
2In sentencing you for these crimes, I am required to have regard to the maximum sentence for each of the offences which you have committed. Persistent contravention of a family violence intervention order, threat to inflict serious injury, and contravention of order to cause harm or fear for safety each carry a maximum penalty of five years imprisonment; aggravated burglary carries a maximum penalty of 25 years imprisonment; and threat to kill carries a maximum of 10 years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
3The circumstances of your offending were set out in a document entitled "Amended Summary of Prosecution Opening for Plea" dated 11 July 2021. This is an agreed document in which you admit each of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which I am to sentence.
4In short compass, you had previously been in a relationship with Amanda Parsons[1]. Ms Parsons re-partnered with Lachlan Gillespie[2] and was the mother of Rhys Harrison-Parsons[3], then aged seven years. Rhys is autistic.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
5On 4 January 2019, the Echuca Magistrates' Court granted a family violence intervention order to which you were the respondent and Ms Parsons and Rhys Harrison-Parsons were the protected persons. That order contained a range of prohibitions referred to in the Crown opening, which included not to commit family violence, not to contact the protected person by any means, and not to go to or remain within 50 metres of any place where the protected persons lived, worked or attended school. You were served with a copy of that order on
11 January 2019.6In addition, Mr Gillespie obtained a personal safety intervention order to which you were the respondent. That order also contained a range of prohibitions, which included that you were not to contact or communicate with the protected person by any means, not to approach or remain within 5 metres of the protected person, and not to go to or remain within 50 metres of any place where he lived, worked or attended school.
7You were at court at the time that order was made, so well aware of the prohibitions that were imposed upon you. You were formally served with a copy of that order on 29 January 2019.
8In terms of Charge 1, persistent contravention of family violence intervention order, that is a charge which covers the period between 26 January 2019 and 18 February 2019, and does encompass, in its timeframe, some of the other offences to which I will refer.
9On 26 January 2019, you attempted to contact Ms Parsons via social media and called her. She did answer one of your calls.
10On 29 January 2019, you attempted to call Ms Parsons on three other occasions; she did not answer your calls.
11On 31 January 2019, you attempted to contact Ms Parsons on another four occasions; again, she did not answer your calls.
12On 1 February 2019, you sent multiple text messages to Ms Parsons. I am told the content of those messages were not threatening.
13On 2 February 2019, you sent Ms Parsons messages via social media and Facebook, requesting contact.
14On 3 February 2019, you again contacted Ms Parsons via social media, sending numerous messages which are also said to be non-threatening.
15Charge 1, the persistent contravention of a family violence intervention order, sets out seven particulars, as outlined in the Crown summary and in the indictment itself. I accept that the non-threatening nature of these communications lessens their objective gravity, however, you were prohibited from making this contact and hence your actions were in breach of a court order. Your contact at this stage was certainly unwanted and undoubtedly had at least considerable nuisance value, yet your behaviour continued.
16Charge 2, threat to inflict serious injury. On 4 February 2019, you again contacted Ms Parsons via social media and sent numerous messages. These included the following: "WHEN YOU SEE MY FACE NEXT AND I AM CHOPPING YOUR LITTLE BOYFREANDS FINGERS OFF HIS FUCKING HANDS". It is that text which forms the basis for Charge 2. You sent additional messages to Ms Parsons and you again tried to telephone her.
17On 5 February 2019, your message to Ms Parsons continued and was becoming more aggressive and more confrontational. It would have, and should have been clear to you - and well before this point - that Ms Parsons was not interested in speaking to you. You also contacted Rhys Harrison-Parsons on that day.
18Not having got your way so far, you showed up at Ms Parsons’ address in clear breach of the orders she had protecting her and Rhys Harrison-Parsons and the order protecting Mr Gillespie.
19You were seen by Mr Gillespie in the rear yard when he was outside having a cigarette and heard by a neighbour telling the dog to shut up. Ms Parsons heard her son talking on her mobile phone and he told her that it was you on the phone, so he hung it up. Shortly thereafter, the house lights went off. That frightened Rhys Harrison-Parsons and he began to cry. Mr Gillespie ran back into the house and locked the door.
20At the same time, Ms Parsons saw that the kitchen window was open and that you were trying to get in. She told you not to and you did stop. You then started being abusive and asked if the police had been called. Your primary focus at this time – indeed, throughout - was with your own self-interest.
21Charge 4, making threat to kill. Ms Parsons kept talking to you through the window. She asked you to turn the power back on. You kept saying that if the police had been called, that you had enough bullets to end your life. You kept making threats against Mr Gillespie and holding your hand on your right pocket. Ms Parsons kept asking you to leave, telling you that you were scaring her son. I have little doubt that this was true in the circumstances; he was home at the time.
22Mr Gillespie left the house with Rhys on Ms Parsons’ advice. She remained and kept trying to calm you. You said, "If Lachlan called the cops, I'm going to end him", therein forming the make threat to kill charge. You said, "I'm going to gaol anyway, I'll make it worse". Police then arrived.
23This seems to have prompted Charge 3, aggravated burglary. When you saw the police arrive, you pushed in the flywire screen and entered the house.
Ms Parsons tried to stop you, but you pushed her out of the way. You ran around looking for Mr Gillespie. It is this entry which is said to be aggravated burglary, particularised as entry with an intent to commit an assault, and at the time you had with you an offensive weapon, namely the head of a hammer, and/or that you knew that a person was then so present.24I accept that for an offence of its type, this particular aggravated burglary is towards the lower end. No one was hurt, there is no complaint of damage to property, you were on your own, a weapon was not used, nor was there any attempt to disguise your behaviour. It was most likely a relatively short-lived decision once you had attended at the premises, post Ms Parsons ignoring your multiple messages, and then police arriving when you were already angry. Up until that point, you had desisted from entry.
25You were then seen to drop an item from your pocket, which you quickly retrieved. You ran to the back door and into the backyard, throwing the object into a neighbour's property. That item was located the following morning and found to be the head of a hammer. Police did not locate you that evening, as I understand it.
26Somewhat surprisingly, however, you did not learn from this near miss. On
14 February 2019, Ms Parsons received some 87 messages from you, which commenced at 4 am. You again attended at her premises at 7:30 pm that day and were heard outside yelling. Ms Parsons could not make much sense of what you were saying, however, and believed you were drug-affected. You were seen standing by the front door before walking away, and Ms Parsons then contacted police.27The following day, being 15 February 2019, Ms Parsons received relentless text messages and phone calls from you. These are described as threatening and abusive. You did the same on 16 February 2019. The contents of some of these messages are referred to in the Crown opening.
28On 17 February 2019, you rang Ms Parsons, texted her and she received regular voice messages of a threatening nature. This behaviour is all part and parcel of Charge 1.
29The following day, she attended on Echuca police station. You rang while she was on the way there and she told you she was reporting your behaviour. She then received further messages from you which included, "If you don't have kids to me, you won't have kids to nobody". You continued to send messages and make calls.
30Charge 5, contravene order intending to cause harm or fear, is the next on the indictment. On 26 and 27 February 2019, even after being aware she had attended upon police, you continued to contact Ms Parsons via Snapchat. She describes your contact as constant, and again it was of a threatening nature. I note this is a single-date offence.
31You were arrested by police on 18 March 2019 and, upon interview by them, did not make any admissions. It appears that your remand as a result of this arrest put paid to your attempts to contact Ms Parsons further.
32Your offending has affected others besides yourself. This is made clear in the victim impact statement that has just been read to the court by the prosecutor, Ms Bolton, and authored by Ms Parsons. You have heard the content of that victim impact statement and are well aware now as to how your behaviour has affected her and how your behaviour has affected her son, Rhys Harrison-Parsons.
33A victim impact statement gives those affected by your crimes the opportunity to participate by informing the court of the effects of your behaviour upon them. I note that the effect on Ms Parsons and, indeed, her children has been ongoing, well past February 2019.
34All of your offending occurred over approximately a month. Your attending at the premises and threats made were both in contravention of the family violence intervention order designed to protect Ms Parsons and her son, and the personal safety intervention order designed to protect Mr Gillespie.
35You attended at a family home, where all inhabitants were entitled to feel safe and have sanctity. You made Ms Parsons’ life hell for at least a month, if not more, given the victim impact statement. The constant messaging was bad enough; you then turned to threats, culminating in the aggravated burglary, which I accept has impacted on her, Mr Gillespie, and Ms Parsons’ young son, Rhys Harrison-Parsons, who was someone that you professed to care about. Yet, you put this to one side in pursuit of your actions.
36At all times you cared for your own needs. You were relentless in seeking to meet those needs and feeding your jealousy. Your behaviour was appalling and shocking, and reflective, as I commented in the sentence indication hearing, of ice-fuelled and self-entitled male rage. You should, quite frankly, be ashamed.
37Whilst the offending is not at the higher end, it has occurred in a family violence context. General deterrence - that is, sending a message to the community - is paramount and, in your case, given the period of your offending, specific deterrence is also important.
38In a decision of DPP v Johnson [2011] VSCA 288, Neave JA stated that offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them. That, of course, has proven true in the ten years since.
39Obviously, intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence.
40In Marrah v The Queen [2014] VSCA 119, the Court again emphasised the need for general deterrence, stating that "the sentences must convey the unmistakeable 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". The pronouncements to which I have referred have obvious relevance to your case.
41In your case, and as a direct consequence for your offending, you have spent some 11 months in custody, your longest period in custody to date. The relevance of this, I will return to.
42In terms of the chronology of this matter, you were charged on 18 March 2019 and, ultimately, a trial hearing was set down for 19 June 2020. The COVID-19 pandemic meant that your trial was unable to proceed. There have been some considerable amendments to the charges now before the court, as opposed to those on which you were initially committed for trial.
43The matter ultimately resolved through the sentence indication process, with that indication being held on 1 July 2021. Sentencing indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that will be likely to be imposed if the defendant pleaded guilty at that stage of the proceedings. The sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea, or otherwise electing to proceed to trial.
44The sentence indication given by me was that, should you plead guilty to the charges on the proposed indictment, then you would not be required to serve a term of imprisonment which commenced immediately. I am effectively bound by that indication.
45Your plea, therefore, has utilitarian value in saving the court the time and expense of contested proceedings. More important, it has saved the witnesses the need to give evidence and re-live the trauma of January and February 2019. It has provided finality for all involved.
46Your plea of guilty in the context of the COVID-19 pandemic has the additional utilitarian value in providing certainty to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
47In the recent decision of the Court of Appeal in Worboyes v The Queen [2021] VSCA 169 at paragraph 39, the Court of Appeal said:
"For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time."
48All of these factors will be taken into account in your favour.
49You do have an admitted prior criminal history spanning some 10 years, with seven appearances in the Magistrates' Court. Your history includes offences of dishonesty, driving offences, offences of violence and breaches of court orders, which include failing to answer bail and breaches of community corrections orders. Indeed, at the time of the offending the subject of the current indictment, you were subject to a community corrections order of 12 months' duration, imposed by the Echuca Magistrates' Court on 20 November 2018 for offending which actually included contravening a family violence intervention order, as well as driving offences. Your breach of this order is an aggravating feature of the offending before me.
50You have previously served six months in a Youth Training Centre as a result of a hearing in the Echuca Magistrates' Court on 27 January 2009 in relation to charges of breaching a community corrections order and various offences of dishonesty, violence, and that were driving-related.
51You received a sentence of four months imprisonment, in combination with a community corrections order of two years duration from the Echuca Magistrates' Court on 14 November 2017, again in relation to a breach of community corrections order and various dishonesty, violence and driving offences.
52Whilst not to be punished for your offending a second time, you have not, in the past, responded to supervisory orders or short periods in custody. This history is relevant to the weight to be given in sentence to specific deterrence - that is, putting you off further offending - protection of the community and as to your prospects for rehabilitation.
53I turn now to your personal circumstances. You are now 31 years of age and were 29 at the time of the offending. You are of Aboriginal heritage on your father's side of the family and identify as a Gunaikurnai man. You grew up in the Echuca area, where both you and your family still reside. You have an older half-brother and an older sister. I am told you grew up in difficult circumstances, being relatively poor and exposed within your community to drug use and violence. Your parents are both described as hardworking.
54You left school before completing a Year 10 education. You have had significant periods of employment throughout your life in relatively menial roles, including roustabouting and shearing. You have otherwise worked as a labourer and concreter.
55Sadly, drugs became part of your own life when you began using cannabis at the age of 11 years, using daily by the age of 13 years. In your mid-teens, you commenced using other illicit substances, including ecstasy, amphetamines and ice. This has led to a very chaotic lifestyle.
56I note that psychological material tendered on your behalf would indicate that you also suffer from attention definition hyperactivity disorder and post-traumatic stress disorder resulting from a range of personally traumatic experiences referred to in the report tendered on your behalf. Drug use has blighted your life and your decision-making for many years, as it clearly did in the early part of 2019.
57I have already referred to the fact that as a direct consequence of your offending, you were remanded into custody and spent the longest period in custody that you have so far been required to serve. There is a period of some 11 months directly referable to this offending, but on 17 January 2020 you were sentenced by the Bendigo Magistrates' Court to two months imprisonment; therefore, you spent a total of 13 months in custody.
58You were released on bail on 17 April 2020 and would appear to have used your period on remand as a very much needed wake up call.
59In addition to written and oral submissions, I have had recourse to numerous materials tendered on your behalf, which include a psychological report of Alison Mynard, dated 19 June 2021; references from each of your parents; references from your partner Hailey Gibson and her sister, Jessica Gibson; a reference from Lucas House of Priority Contractors; Certificate III in Civil Construction Plant Operations; certificates of attainment in relation to at least three courses you have completed; a notice of assessment and a licence to perform high risk work; as well as the various other certificates of completion of courses you have undertaken.
60In essence, you have also obtained employment shearing and then in concreting. You are about to commence full-time employment in concreting. You have obtained additional work qualifications and your driver's licence - which should assist you to obtain and maintain employment.
61You moved to Lockington, about 30 minutes out of Echuca, and have been in a stable relationship now for some years with Hailey Gibson. You intend to move to Huntly, outside Bendigo, in the very near future.
62Reference material tendered on your behalf and authored by Ms Gibson and each of your parents reflects your remorse for your offending and your changed and positive character. Something is clearly working, as there has been no allegations of further offending since early 2019 and your release on bail.
63You are now in a position where there can be less weight to specific deterrence and the need to protect the community than I would have otherwise envisaged.
64I note that the psychological report authored by Ms Mynard confirms the diagnoses to which I have already referred, as well as stimulant use disorder. I do not take the view that any of these, other than stimulant use, contributed to your offending, or that it reduces your culpability for it. I do accept Ms Mynard's opinion that your mental health may deteriorate if you return to the custodial setting. At the present point in time, it will appear not to be in your or the community's interest to do so.
65The Crown's submission on sentence was that the court should impose a term of imprisonment. The defence do not take particular issue with that, but submit that any term imposed be combined with the community corrections order.
66I have had you assessed as to your suitability for a corrections order and an assessment outcome report has found you suitable.
67The basic 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 the offending, your culpability for it, your personal circumstances and those of your victims.
68I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and safely reintegrated into society. To make it perfectly clear, I do express my denunciation of your behaviour.
69I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act, where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality and proportionality.
70I do 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. In so doing, I again bear in mind the principle of totality and proportionality.
71In relation to all five charges the subject of the indictment, you are convicted and sentenced to 11 months imprisonment, which I reckon as already served pursuant to section 18 of the Sentencing Act.
72This term is in combination with a community corrections order of 18 months duration, which includes conditions that you be supervised by the Office of Corrections, submit for drug and alcohol treatment, complete programs to reduce your risk of offending - and I specify that you must complete a Men's Behavioural Change program - and you are to be assessed for mental health treatment and services as directed.
73I can only place you on such an order if you agree to do so. In a moment, we will give you the chance to speak to Ms Millar.
74Otherwise, in addition to the conditions I have imposed, there are what we call standard conditions. The first and foremost of those is that you must not commit any other offences during the 18-month period which could be punished by imprisonment. You must also report within two working days of your release to your nearest community corrections office. You are required to advise your supervising Corrections office of any change of address of where you are living or working, and must do so within two clear working days.
75It is a term of all community corrections orders that you submit for visits as directed and you obey all instructions and directions of your Corrections officer. You cannot leave the State of Victoria without prior permission.
76This order, in my view, presents you with a chance to continue to change your life in a positive fashion, given the gains you have already made, and should you choose to take up that opportunity and the supports that I intend be made available to you.
77The order can be breached if you do not comply with the terms of the conditions or re-offend whilst it is in place. If you do so, you will appear back before me for breaching the order. I may have to re-sentence you on the original charges and sentence you for contravening the order.
78Whilst the path to rehabilitation may be a difficult one for you, it seems your ability to access appropriate services has a role to play. A corrections order can be punitive, can achieve deterrence and may be suitable in cases of relatively serious offences such as these, which might have otherwise attracted immediate term of imprisonment. You have yourself to thank, in many ways, for the disposition, given the efforts you have made to self-rehabilitate.
79Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to two years and two months, with a minimum of 18 months before being eligible for parole also as an aggregate.
80Ms Bolton, is there anything I have missed?
81MS BOLTON: No, Your Honour.
82HER HONOUR: Ms Millar?
83MS MILLAR: No, Your Honour.
84HER HONOUR: Mr Hall, do you want to speak to Ms Millar about whether or not you should sign the Corrections order?
85OFFENDER: I do want to sign it, yes.
86HER HONOUR: Yes, all right, I will stand down temporarily, thank you.
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