Director of Public Prosecutions v Hanlon
[2016] VCC 1970
•13 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01887
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG HANLON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF TRIAL | 12, 13, 14, 17, 18, 19, 20 and 21 October 2016 | |
DATE OF PLEA HEARING: | 24 and 25 November 2016 | |
DATE OF SENTENCE: | 13 December 2016 | |
CASE MAY BE CITED AS: | DPP v Hanlon | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1970 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Conviction by Jury on 1 charge of aggravated burglary and 1 charge of common law assault – victim was estranged wife of defendant – TES 3 ½ years’ imprisonment with NPP of 2 years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T Hoare | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms C Lynch | Melinda Walker, Solicitor |
(Ms M Walker on Sentence)
HER HONOUR:
1 Craig Hanlon, following a jury trial, you have been convicted of one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of common law assault, which carries a maximum of 5 years’ imprisonment.
2 The charges upon which you were tried comprised 10 in total. The complainant on all charges was your estranged wife, Rita Hanlon (now Rita Falzon). Charges 1 to 5 on the indictment related to alleged conduct by yourself on 17 January 2015 towards the complainant. This was said to have taken place at a unit where you and the complainant had been living, namely Unit 3, 16 Aberdeen Street, Reservoir, for a couple of months prior to you and the complainant separating and you moving out to live with a new girlfriend. Charge 3, intentionally causing injury, Charge 4, recklessly causing injury and Charge 5, common law assault, were alternative charges. The jury gave a verdict of not guilty on all Charges 1 to 5.
3 Charges 6 to 10 on the indictment related to conduct alleged to have been committed by you at the same unit on 29 January 2015. On Charge 6, aggravated burglary, you were convicted by the jury. Charge 7 (intentionally causing injury), Charge 8 (recklessly causing injury) and Charge 9 (common law assault) were alternative charges. The jury acquitted you of Charge 7 and Charge 8 and convicted you of Charge 9. On Charge 10, conduct endangering life, the jury acquitted you.
4 The complainant’s evidence was that your offending on 29 January 2015 had occurred in the context of uncharged acts committed by you in the early hours of the morning at approximately 3.30 or 4.30am on 25, 26, 27 and 28 January 2015. Her evidence was that, on these consecutive days, you arrived at the door of the unit knocking aggressively, bashing on the door, yelling profanities like “Open the door, you fucking bitch”[1] and were angry and fiddling with the door handle, or moving the door handle, such that she thought you had actually opened the door, but it was, in fact, locked. She stated that on 25 January, this went on for maybe five minutes and then you left and over the next three nights, 26, 27 and 28 January, the same thing happened. On one of those nights, the complainant stated that you, also, shone what appeared to be an infrared light through the front window of the unit. She said that she could see through the light, which travelled a fair distance through the windows and she had to crouch down so that the light would not enable you to see her.
[1]Transcript (“T”) 56-57
5 In relation to the charged conduct on 29 January 2015, the complainant’s evidence was that, at about 12.30 in the afternoon, you arrived at the door of the unit and you were more angry than you had been on the other days on which she would not let you in. You were yelling “Open the fucking door, I'm going to get in, when I get in I'm gonna bash the fuck out of you.” You were banging on the door and trying to open it, but it was locked and she did not think that you would get in. She stated that, then, it was quiet for three or four minutes and she thought that you had left and she was safe. She was sitting on the couch in the lounge room and remained sitting there. She stated that you then “came smashing through the front door and parts of the door just went everywhere. The door frame was broken, the door handle was broken, the hinges went flying across the other side of the room and (she) was in shock, (she) just sat there.”[2]This is the conduct comprising Charge 6 of which the jury found you guilty.
[2]T 59
6 The complainant stated that you saw her sitting on the couch and, then, you grabbed her by her neck and raised her off the ground. She said you slapped her across the face a couple of times. You had both hands around her neck and just left her dangling and she was in excruciating pain. She said you held her off the ground and travelled with her into the bedroom. She said she was trying to grab onto the walls, or anything, so she could just relieve the pain in her neck, but she was unable to do so, as she weighs 50 kilograms and is 5 feet 3 inches tall and you are 5 feet 11 inches tall and weighed more and are a stocky build. She stated that you threw her on her back on the bed and pinned her down, with both knees into her arms, and started suffocating her. She said you blocked her airways by putting one hand over both her nose and mouth, so that she could not breathe. There was a lot of pressure. You held it there for about 20 seconds and she felt really scared but, then, you released your hand and she was about to say something and you said, “You’re gonna fucking speak, aren’t you? You’re gonna say something”[3] and, then, you did it a second time, for probably about 10 seconds. She stated that she was afraid that she was going to have a seizure because she suffers epilepsy, but she did not have a seizure. You then grabbed a little pillow on the bed with your hand and she felt her worst fear, but you put the pillow down and basically ran out the front door. She stated that you had been crying whilst you were assaulting her. She then rang “000”, the recording of which was tendered as Exhibit “A” on the trial.
[3]T61
7 In support of Charge 7, intentionally causing injury, or, alternatively, Charge 8, recklessly causing injury, the prosecution had relied upon photographs taken by police on 29 January 2015, which the complainant stated showed that her nose was swollen and she had a cut on her lip near the centre and a pinkish mark on her neck, just below her jaw. The prosecution also, had relied upon evidence that the complainant said she was in terrible pain or excruciating pain when you lifted her up and that on 2 February 2015, she had attended a Dr Tan complaining of pain on left lateral flexion of the neck.
8 At all relevant times, the prosecution relied upon physical injury, rather than psychological injury. The jury were instructed by me that, “Injury, in this context, means physical injury, whether temporary or permanent. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function. It also includes all the things that you would, as a matter of ordinary experience, call an injury.”[4]
[4]Oral and written directions given to the jury at the trial. (Marked for identification)
9 Your defence was that you did not commit any of the acts which were the subject of the charges, or the uncharged acts. Further, it was put to the complainant that she was a liar and that none of the things that she alleged happened, had happened at all. Thus, you put the prosecution to the proof of each element of each offence. In addition, on the subject of injury relating to the alleged offending on 29 January 2015, your counsel submitted to the jury that it should not be satisfied that any injury occurred because the ambulance officer who attended the scene soon after the “000” call, did not seem to have taken any note of injury and, nor was there any objective note of injury when Dr Tan saw the complainant on 2 February 2015.
10 Mr Hoare, on behalf of the prosecution, submitted to the jury, that if it did not find there had been an injury, but was satisfied beyond reasonable doubt that the acts took place and you were the offender, then Charge 9, the offence of common law assault, would apply.
11 In order to have convicted you of Charge 9, common law assault, the jury must have been satisfied that you applied force to the body of the complainant and that that application of force was intentional or reckless.[5] In these circumstances, consistent with the jury’s verdict, I must find that the jury was not satisfied that the complainant had suffered a physical injury, whether temporary or permanent. However, I am satisfied beyond reasonable doubt that the jury did accept that you slapped the complainant a couple of times to the face and lifted her up by the neck in the way she described and carried her into the bedroom.
[5]Oral and written directions given to the jury at the trial. (Marked for identification)
12 Charge 10, conduct endangering life, involved the allegation that you attempted to suffocate the complainant in the bedroom. The jury, by giving a verdict of not guilty on this charge, was not satisfied beyond reasonable doubt of the elements of the offence. These were that you committed the conduct alleged, that the conduct was voluntary and that the conduct placed, or may have placed, the complainant in danger of death. Further, that you acted recklessly in that you must have foreseen that an appreciable risk of death was a probable consequence of your conduct.
13 It could be that the jury was not satisfied that you committed the conduct alleged on charge 10, or that it was voluntary or reckless, or it is possible that it was not satisfied that you placed your hand over her nose and mouth for 20 seconds and then 10 seconds, or that you did so, but it was not satisfied beyond reasonable doubt that this placed the complainant in danger of death. In the circumstances, save to say that the jury was not satisfied beyond reasonable doubt of the elements of Charge 10, any further analysis would be mere speculation. In sentencing you, I must disregard the allegation upon which the prosecution relied in support of Charge 10.
14 At the plea hearing, Ms Lynch, on your behalf, submitted that you should be sentenced on the basis that your conduct comprising Charge 6 and Charge 9 was an isolated episode of violence towards the complainant, noting that you had no prior convictions for violence other than an unlawful assault for which you had been given a good behaviour bond without conviction back in 1998.
15 Mr Hoare, the prosecutor took issue with Ms Lynch’s submission in the light of the complainant having given evidence of the uncharged acts on 25, 26, 27 and 28 January, to which I have already referred, as well as evidence that, over the course of her ten year marriage to you, you had been physically violent towards her. Ms Falzon stated that this had occurred once every couple of weeks over a 12 month period prior to you and her having separated in November 2014. The violence consisted of different things, such as using force to block her airways, hitting her, throwing furniture at her, using force with your fingers onto her neck, so that she could not move, locking her in her bedroom and grabbing her with both hands by the throat and lifting her off the floor so that her feet could not touch the ground and she would be left having to hold onto your arms like monkey bars to try and relieve the pain in her neck.[6] Mr Hoare submitted that, if the court is satisfied beyond reasonable doubt of these uncharged acts, then it could not be said that the offending of which you have been convicted was isolated in nature.
[6]T90 – 93
16 Ms Lynch submitted that the Court should not be satisfied about any of the uncharged conduct because Ms Falzon had made prior inconsistent statements on oath at the committal. In other words, although she had made a statement to police on 29 January 2015 that such acts of violence had occurred over two years previously and for a 12 month period, she had stated under cross-examination at the committal that that statement was not true. She stated that there had been no violence, just arguments like any other married couple, and that the only abuse that had occurred was what she had alleged on 17 and 29 January 2015. In addition, at the committal she had conceded that she did not report the allegations of your misconduct in the early hours of the morning on the days of 25, 26, 27 and 28 January because she said she was not afraid that you were going to hurt her on these occasions. She stated that she just did not want to see you and did not want to answer the door. She had stated that when you were screaming that you were going to bash her or “beat the fuck out of her”, she did not take that seriously and had agreed under cross-examination at the committal that they had been just empty words on 25, 26, 27 and 28 January. She did not feel threatened and stated that you were not sounding very, very angry, so she was not concerned.[7]
[7]Transcript from committal hearing on 28 August 2015, pp 8-13
17 Ms Lynch submitted that, in the light of these prior inconsistent statements by the complainant on oath, the Court should not be satisfied beyond reasonable doubt concerning any of the uncharged acts and, hence, should regard the offending as having occurred in isolation.
18 In the trial before the jury, Ms Falzon resiled from the answers which she had given at the committal and confirmed that what she had said to police in her statement made on 29 July 2015 had been true and that you had committed acts of physical violence towards her both during the marriage and on the four days leading up to the incident on 29 January 2015. She stated that she had lied on oath at the committal, not because it did not happen, but because she was scared of you at the time of the committal. Also, she stated “I was still in love with Craig at the time even though what happened happened”.[8]
[8]T166
19 I must stay that I found Ms Falzon’s explanation for her prior inconsistent statements made on oath at committal credible. Whilst not attempting to act as a diagnostician, I can take judicial notice that the phenomenon of battered wife syndrome is now well recognised. When the psychologist, Ms Cidoni, was giving evidence of an assessment that she had made of you, which was embodied in her report tendered into evidence as Exhibit 1, I asked her in general terms about this syndrome. Whilst making it plain that she had never examined Ms Falzon, she stated that controlling behaviour and domestic violence in a relationship was well understood to induce in the victim of such behaviour a state of learned helplessness, a state of dependency on the abuser and also a level of denial such that the victim believes that the abuser will change. She stated that she had even known of battered wives who had changed their story and sought to withdraw charges and this is because a lot of such women are very dependent on the men who have controlled them or abused them.
20 Matters which cause me to find that I am satisfied beyond reasonable doubt that there were prior acts of violence committed by you during the period of the marriage, as well as on the days of 25, 26, 27 and 28 January 2015 are as follows:
(1)Ms Falzon presented as a highly anxious, fragile and over-apologetic witness. Whilst this could, in part, be attributable to her admitted use of ice, my clear impression was that she was very scared of you. She appeared to me to be genuinely distressed when discussing your abusive conduct and the disparity in your sizes and strength and how helpless and powerless she felt. She was someone who, without hesitation, admitted that she had lied in the Magistrates’ Court and I found the explanation for her lying plausible. I find it to be all the more plausible given that the telephone records of your phone and her phone show significant ongoing contact between you and her after you had separated. Even after you had committed the offending of which the jury has found you guilty, she conceded that she was ringing you from the refuge where she had been placed for her own safety. Her ambivalent feelings of being scared of you but also wanting you back because she believed she still loved you, to me seemed an honest account of the very conflicting feelings she felt towards you. Moreover, she did not come across as a person who exaggerated. For example, when asked about the force with which you had slapped her face, she stated “Not really bad, like, I was okay, I wasn’t bleeding or anything”.[9]
[9]T60
(2)In your record of interview you made “no comment” answers when asked about any of the conduct with which you were ultimately charged. This is your legal entitlement, as was your entitlement to not give any evidence at your trial. However, to my observation in your record of interview you came across as quite unperturbed by the serious nature of the allegations made against you. Your demeanour was controlled and cool and you expressed, in what appeared to me to be a manner of contrived concern for Ms Falzon that “…She needs some help bad.” And stated “It’s very sad- a very sad situation…it’s a very sad situation…”.[10] I am satisfied beyond reasonable doubt that this same language was used in text messages by you to Ms Falzon after the offending conduct. For example, “You are a sad and sorry person Rita. I sadden to see you end up like this…” and “I can’t believe the person you have become, so sad to see”.[11]
[10]Answers to Questions 169, 170 and 171.
[11]Exhibit 3 at the Trial.
(3)In your record of interview you told the police that the relationship was over from your point of view, that there was “nothing there anymore between the two of (you)” as far as you were concerned, although “there might have been in Rita’s eyes”.[12] You stated that there had been ”no arguments”,[13] that there was “no animosity” on your part and “all I wanted was a separation”.[14] You stated that, after you had separated in about November, you did not go to the unit but, then, said that maybe you had knocked on the door once or twice but had not got an answer[15] and, when asked when the last occasion you had been at the unit was, you repeatedly stated “Oh I dunno”.[16] You specifically denied that you had used your body weight to essentially rip straight through the door by responding “No, I haven’t been there to do that”.[17] You denied that you had ever become physical with her during the marriage, even once.[18] You went so far as to say “Things didn’t get out of hand and there was no screaming or yelling or whatever going on”.[19] I am satisfied beyond reasonable doubt that these are untruthful answers, particularly in the light of statements from the neighbours at the unit where you were living with Ms Falzon about the arguments and noise that went on there.
[12]Record of Interview, answers to Q 111-113.
[13]Answer to Question 88.
[14]Answer to Question 166.
[15]Answer to Questions 180 and 181.
[16]Answer to Question 197, 198 and 199.
[17]Answer to Question 111.
[18]Answer to Questions 224 and 225.
[19]Answer to Question 231.
(4) Ms Falzon’s evidence about the violent relationship between yourself I consider is supported by the evidence of the Gibson family who lived next door to the unit into which you moved:
(a) Amee Gibson stated that there was fighting probably every second night between a female and a male. It was late at night and they would wake her up and it progressed so that they ended up fighting probably nearly every night and there was a lot of yelling and screaming. She recalled a massive argument towards mid-January 2015 around three o’clock in the afternoon with doors banging and a lot of screaming and the female stating “Get out of my house”. She said there was constant fighting and yelling and screaming and she recalled one occasion when the male person sounded like he was banging on the front door saying, “I know you’re in there” and said something about wanting a trailer. She did not actually see the man or woman, but remembered that the police came around at the end of January and the woman left with police.[20]
[20]T200 – 202.
(b) Aaryn Gibson stated, also, that coming from unit No 3 at 16 Aberdeen Street, Reservoir, there was a lot of arguing, banging on the door and screaming. He believed a male and female lived there. He could not really hear what they were saying but it was pretty aggressive stuff and sound pretty serious from what he could hear through the walls, banging on doors and walls and windows like that.[21]
[21]T206 – 207.
(c) Faye Gibson stated that she was aware that a female was living in Unit 3 and she would hear her name, Rita, being called by a male who came and went from there. She heard arguments which were very aggressive and sounded very violent. Many of these were late at night. Once she heard an argument where the woman, Rita, was saying, “Don’t take my car” and the male said, “You owe me money” and she said, “The car, the car, that’s all I've got.” She said that quite often she was woken up with the arguing and the last incident was at the end of January. She stated that she had seen police at the address three or four times but did not know why they were called and could not say for sure that they were at that particular unit.[22]
[22]T212 – 215.
(d) Gordon Gibson stated that he heard a lot of arguments coming from Unit 3, No 16 Aberdeen Street, Reservoir, between a male and a female. He recalled hearing him say to her, “Where’s my f-ing money”, and another time heard the woman say, “Don’t take my car.” The incidents stopped around the end of January 2015.[23]
(5) Moreover, contrary to your representations to police in your record of interview that there were no arguments or animosity between you and the complainant, Ms Cidoni in her oral evidence stated that you gave her a history that it had been a “very tumultuous” relationship between yourself and Ms Falzon. When I asked Ms Cidoni what she understood by this, she said she “imagined” that you would be living in chaos, would argue a lot and could not get on and there was a lot of drama, erratic behaviour and inconsistency, agitation and memory lapses.
(6)Ms Falzon stated in relation to the early morning yelling at her door on 25, 26, 27 and 28 January, that she never saw your face but she knows your voice. This was very credible evidence, just as she had answered in cross-examination, when it was put to her that you had not burst through her door on 29 January, “why would I say it was him if it wasn’t? I mean I was in love with him, I wouldn’t- why would I say it was him? I know exactly who broke the door, I know exactly who was standing in front of me on that date”.[24]
[23]T217.
[24]T178
21 I am satisfied beyond reasonable doubt that you had ongoing issues about money with Ms Falzon and, in particular, you were very anxious to get hold of your trailer which you told police in your record of interview was, itself, worth some $10,000 and of sentimental value to you as you had built it. In addition, you had all of your tradesman’s tools on the trailer which could be worth $20,000 to $40,000.[25] I am satisfied beyond reasonable doubt that you were very keen to get your tools and trailer back and Ms Falzon was not allowing you to do that[26] and that this was the motive behind the uncharged acts on 25, 26, 27 and 28 January 2015. Although it was not in Ms Cidoni’s report, she stated in oral evidence you wanted to get things from the unit and had mentioned your tools of trade. In your record of interview you told police that Ms Falzon had told you about the regular 4.00am visits to her door and that you had said that it was not you and you were at home with Sandra, (your new partner).[27] Much time was spent at the plea hearing in endeavouring to convince the Court that it should not be satisfied beyond reasonable doubt that these uncharged acts occurred. No evidence was called from Sandra or anyone else. That is, of course, your legal entitlement.
[25]Record of interview, answer to Questions 83 and 84
[26]Record of interview, answer to Question 89
[27]Record of interview, answer to Questions 27, 28 and 29
22 You are presently aged forty-seven years, having been born on 1 April 1969. You have some prior criminal history. As previously mentioned, in 1998, you appeared before Heidelberg Magistrates’ Court charged with unlawful assault. Without conviction you were given a good behaviour bond for a period of 12 months. On 14 October 2014, you appeared before Heidelberg Magistrates’ Court charged with driving offences and, also, for failing to answer bail in relation to charges of trafficking in GHB and possessing methylamphetamine. You were convicted and discharged in relation to failing to answer bail and fined for the driving offences. On 21 October 2014, you appeared at Heidelberg Magistrates’ Court charged with trafficking GHB and possessing methylamphetamine for which you were convicted and placed on a Community Correction Order for a period of 12 months.
23 It is an aggravating feature of the offending for which I must sentence you that it was committed whilst you were on a Community Correction Order which, in particular, had a condition that you undergo assessment and treatment and rehabilitation for drug abuse or dependency.
24 Ms Lynch, urged the court to note that your only prior matter involving violence which occurred many years ago when you were only twenty-two. Ms Lynch noted the aggravating factor of your having committed this offending whilst serving a Community Correction Order. However, after facing breach proceedings for that order at Heidelberg Magistrates’ Court on 17 June 2015 and being ordered to serve a period of 3 months’ imprisonment, you appealed to the County Court and, on 13 November 2015, were successful in having the Magistrates’ Court order set aside and you were resentenced to a Community Correction Order for a period of 12 months.
25 Tendered as Exhibit “8” at the plea hearing was a Community Correction Order progress report dated 7 November 2016 (together with the earlier report of your contravention dated 3 March 2015). The most recent report noted that you had been earlier assessed as being a medium risk offender, primarily due to substance use, lack of organised pro-social activities and social values. It noted a total of six unacceptable absences after being placed on the Order on 13 November 2015 but, also, that your presentation to supervision and ability to undertake community work fluctuated due to you being diagnosed with depression and anxiety. You attended your general practitioner and were prescribed Mirtazapine for management of anxiety and depression in April 2016. In March 2016, your general practitioner had referred you to Ms Leanne Jackson for counselling and you engaged with her on three occasions. In addition, you attended Ms Clare Woods at the Community Offender Advice and Treatment Service on six occasions in relation to harm minimisation, drug education and relapse prevention and cooperated in permitting Ms Woods to liaise with your general practitioner in order to discuss medication. You also participated in the YMCA “BEST” program for personal, professional and everyday life skills training. You participated in various course components and completed five out of seven days of the course and obtained a Certificate III in Skills for Work and Vocational Pathways.
26 You had completed 67 hours and 45 minutes of 100 hours of unpaid community work before your ability to continue the Community Correction Order ceased as you were remanded in custody following the jury’s verdict on 21 October 2016. However, the author of the report concluded that, if you were to be released into the community, then Community Corrections would suspend the community work condition for a period of one month to allow you to complete the remaining community work hours.
27 Also tendered on the plea was a certificate from your general practitioner, Dr Chitgopeker, dated 26 October 2015, to the effect that you had been seeing him since August 2015 suffering from anxiety and depression due to a lot of personal stress over the past year or so, but your condition was stabilising with counselling.
28 A report was tendered from Clare Woods, drug and alcohol counsellor, dated 9 September 2016 (Exhibit “2”). This noted that you had been attending counselling sessions on a regular basis since April 2016 as your mental health was a concern. It stated that you were struggling to get out of bed to attend your Community Correction Order commitments as you were suffering from depression and anxiety. It noted that you claim not to have used methylamphetamine since engaging in counselling and that you were making a genuine effort to achieve your goals.
29 As previously mentioned, tendered as Exhibit “1” was a report of Ms Gina Cidoni, consultant psychologist, who had assessed you at the request of your solicitor on 22 November 2016. This was essentially relied upon by your counsel because Ms Cidoni had assessed you as having good prospects for rehabilitation in the light of your positive progress on the Community Correction Order after you were given a second chance. In essence, she found that you had a history of substance abuse and elevated scores on the depression scale resulting from your situation. She stated in oral evidence that this meant that your substance abuse had caused your life to decline and, in addition, your legal situation was a contributing factor. However, she assessed you as having no violence attitudes, beliefs, values or thoughts and not to be suffering from any psychosis. She concluded: “Mr Hanlon said that he lost everything through the abuse of methylamphetamines and GHB that commenced at age thirty-six, reportedly with his wife. Their relationship became fraught with daily drug use and both parties lost their employment and assets.
In Mr Hanlon’s case it is suspected that his mental health became very compromised, disturbing judgment and clear thinking and producing behavioural and psychological changes (agitation, anger, effecting blunting and impaired judgment). There was significant deterioration in his capacity to perform everyday tasks and interference in major life demands. There was impairment of judgment and clear thinking, memory loss and confusion. It is likely that he was not in control of his behaviour, nor could he grasp that his behaviour was wrong. His capacity to think about intended actions, to consider their possible consequences and to exercise restraint would have been seriously impaired.”
30 I asked that Ms Cidoni come to Court to give oral evidence to explain a number of aspects of her report. The last paragraph which I have just quoted was not relied upon by Ms Lynch on your behalf. Ms Lynch made it clear that she did not seek to invoke the principles in R v Verdins[28] but simply to have the Court note your anxiety and depression as part of your overall background factors and I do so noting that they are essentially a product of drug abuse and your legal situation.
[28](2007) 16 VR 269.
31 Ms Cidoni, under cross-examination from Mr Hoare, conceded that the opinion in the paragraph which I have just quoted was based on “well researched effect of the substances (you were) using” rather than history from you, as you continue to deny the offending of which the jury found you guilty. She also conceded that she did not have an accurate history of the extent of your prior offending for drug trafficking or of the extent to which your business activities were able to continue successfully notwithstanding your claim that you had been a daily ice user for ten years.
32 I found Ms Cidoni to be unimpressive as a professional witness. Her report appeared to have been produced hurriedly and without careful attention to detail and contained a number of inaccuracies and generalities. Her report was undated, she had an error as to your birth date and also, when it was that you and your victim met as distinct from when you married. In oral evidence she stated that she thought you had successfully operated your commercial carpentry business up until some time between the age of thirty-five to forty years, rather than it having continued to some time in 2014, when you were aged forty-five. She stated that if, as you claimed, you had been a daily ice user from age thirty-five, daily using a “shit load” (an amount which she had not taken the trouble to quantify) she would have expected your business to deteriorate very quickly and did not realise that it had continued until 2014 (this is despite the fact that her written report had noted “He closed the business in 2014”). She presented as something of an advocate in that she then stated that as you had 17 other employees, “maybe they kept it going”. She had a clear history that you had moved out from being with Ms Falzon to live with Sandra, your new partner. When I stated to her that this appeared to be at odds with what you had told police in your record of interview, she stated, “You need to take into account that he may have been affected by ice”, when there is no evidence to that effect.
33 Ms Cidoni presented to Court with no notes of her consultation with you. She said that, once she produced her report, this typed over her notes and she no longer had them. She stated that on the Minnesota Multiphasic Personality Inventory (MMPI) addiction scale, you had endorsed 13 items but was unable to tell the Court what they were as she “did not have the book with her”. She stated that your score over 65 per cent on this test was a significant score. She agreed that she had not mentioned this score in her report, but said that she recalled that from the “raw test” but she did not have the raw test with her. She stated that she would supply the raw data to the Court but this was not forthcoming until after the close of business last night, some 2 ½ weeks after she had given evidence. I must say that I was not greatly enlightened by her supplementary report apparently dated almost 2 weeks ago on 1 December 2016 or the appended MMPI charts.
34 On page 4 of her initial report Ms Cidoni had stated “His score on the addiction admission scale indicated modest (my emphasis) acknowledgment of substance use and its effects upon himself and others around him.” She stated that she could not understand why she had the word “modest” in that sentence. She said “I suspect I was saying moderate acknowledgment of substance abuse.” I note that she had altered this again in her supplementary report to “frank” acknowledgement of alcohol or drug problems. These matters do not inspire confidence, nor did the fact that she seemed to have a very minimalised account of your offending for trafficking[29] and was not aware of offending which was prior in time to the subject offending, (albeit that you were not convicted of it until subsequently), which consisted of you resisting arrest (committed on 20 September 2013). This had required a number of police to apprehend you, resulting in you being placed in a headlock because you were thrashing about and eventually handcuffed. She stated that that would add one more point to your score in that you would be within the moderate range of reoffending for violence.
[29]Ms Cidoni appeared to think your trafficking consisted of police coming across you after you had fallen asleep in your car and finding Methylamphetamine and GHB in your possession. She had no appreciation that you were found in possessions of paraphernalia for the sale of drugs such as electronic scales, plastic syringe plungers, deal bags and coded drug trafficking messages on your phone. See Exhibit “B” on the plea.
35 In oral evidence, Ms Cidoni stated that she had assessed you as having a degree of immaturity, but said that she was unable to explain what she meant by this because “I haven’t got the book.” She assessed you as accepting responsibility for the demise of your life which you attributed to ice use by you but, also, by your victim. She agreed that you appeared to be blaming your victim for your ice use and you were “in need of some counselling about this.” She stated that she puts your blame of the victim for your drug use into the category of immaturity and lack of insight and stated, “I think when he reflects on that time he does not have insight into the full extent of control over his own behaviour.” Nevertheless, she seemed also to be saying that maybe with your lack of drug use between the date of the record of interview and the date upon which she assessed you, you had developed more insight.
36 Overall, I found Ms Cidoni’s evidence lacked clarity, a certain degree of impartiality and had presented generalities in her report as though they applied specifically to you. She conceded that she recalled you giving her a history of wanting to get your tools of trade back, but did not include this in her report as any possible grievance towards your victim. When she said that your anger and aggression scales were not elevated, she did not bring the raw data to show what was meant by that. It is unclear whether what she relied upon was ultimately faxed to the court because the MMPI charts provided late yesterday on their face, mean very little to me.
37 What it is worrying about Ms Cidoni’s assessment as revealed in her initial report is that you do show immaturity, inadequacy and dependence upon others and she did detect indications of manic excitement, characterised by elated but unstable mood, psycho-motor acceleration and flight of ideas. She agreed that behaviour like kicking in a door or breaking through a door, of which the jury found you guilty, could be consistent with that trait of manic excitement. She stated that it can be a bit like a bipolar presentation but she could not make that diagnosis because the use of ice can cause symptoms that mimic those of bipolar disorder. I here note, that subsequent to her oral evidence in her supplementary report, without any explanation, Ms Cidoni seems to have downplayed this trait stating that on testing in relation to hypomania “milder (my emphasis) degrees of excitement and over-activity were observed”.
38 At the end of the day, Mr Hanlon, you continue to deny the offending of which the jury has found you guilty. It is submitted by your counsel that since the date of offending, you have utilised the second chance to undertake a community correction order given to you by Judge Gucciardo in the County Court at Melbourne on 13 November 2015. Ms Lynch submitted that you clearly had problems of drug addiction and some mental health issues which were present at the time of the offending, and you have endeavoured to address these, so your prospects for rehabilitation are enhanced and your risk of reoffending is thus reduced.
39 You have made attempts to address your ice abuse. It is to your credit that urine samples taken on 25/10/16 and 16/11/16 were found to be negative for illicit drugs (Exhibit 9). However, I cannot be satisfied on the material before me that your abuse of ice is the only reason for your offending. The offending clearly occurred in the context of a breakdown of the marriage, and I have found that there was uncharged controlling and violent behaviour by you, towards your victim, prior to the offending. I make it plain that, other than finding that your offending is not an isolated act of violence towards the complainant, I do not place any weight on that earlier uncharged behaviour in arriving at the sentence which I intend to impose. However, I am unable to say whether your use of ice was the only thing that dictated your attitude towards Ms Falzon.
40 I find Ms Cidoni’s assessment that you have no elevated scales for anger and aggression not convincing or well supported in the light of her inadequate history and lack of clear explanation as to how she arrived at this conclusion. Moreover, there are still the worrying traits of immaturity and manic excitement which she mentioned. Thus, although you have apparently been abstinent from ice during your time in custody, that does not necessarily give me any comfort that you have addressed all of the factors relevant to the serious domestic violence conduct of which the jury has found you guilty. In all of the circumstances, I remain somewhat guarded about your prospects of rehabilitation in relation to violent behaviour.
41 There is no doubt that aggravated burglary and assaults, particularly in the aftermath of a marital breakdown, are a very substantial problem in our community. The Court of Appeal has made it plain that there should be an uplift in current sentencing practices for aggravated burglary. The aggravated burglary of which the jury has found you guilty was a brazen one, committed in the middle of the day when you expected that Ms Falzon would be home, and in violent and shocking circumstances. I am satisfied beyond reasonable doubt that your action was premeditated to some degree as evidenced by your threatening words before you crashed through the door that “when I get in, I am going to bash the fuck out of you.” I am also satisfied beyond reasonable doubt Ms Falzon was already scared of you and you knew that. Your offending strikes at the heart of a person’s entitlement to feel safe in their own home, and it was followed up by an intimidating and humiliating assault by using your brute force on a diminutive, fragile woman, by lifting her up by the neck from the ground and leave her dangling, and slapping her across the face.
42 In sentencing you, the court must denounce your conduct and place emphasis upon general deterrence and just punishment, so that others, like you, who are aggrieved by marital disputes, and minded to take the law into their own hands, will know that such behaviour will not be tolerated and will meet with appropriate punishment. There is also a need to protect the community, in particular Ms Falzon.
43 In sentencing you I must disregard the injury to Ms Falzon’s shoulder which she claimed resulted from the assault, as this would be inconsistent with the jury’s verdict. Similarly, as already stated, I must ignore her evidence about your alleged attempt to suffocate her which was the subject of Charge 10 of which the jury acquitted you. However, there can be no doubt about the ongoing psychological detriment that your behaviour has caused to Ms Falzon. The recording of the call made by Ms Falzon to “000” immediately after your forced entry into her unit and the assault is a chilling account of a very frightened woman who is anxious about you coming back because the door is broken. (Obviously, in the light of the jury’s verdict on Charge 10 I disregard her complaint to the “000” operator that you attempted to suffocate her.
44 I have read Ms Falzon’s Victim Impact Statement, being conscious that you are to be sentenced on Charges 6 and 9 only and that it may well be that some of the psychological effects mentioned by Ms Falzon are due to matters which are not the subject of the offending of which you have been convicted. However, it is plain that she lives in fear and is suffering flashbacks. She has it in the back of her mind that someone is coming to get her and before she arrives at her front door, she looks around to see who is walking past. She is struggling to feel safe again and is always worried. She fears being out in public and lives a life of isolation for which she seeks psychological help. She clearly found it very distressing, reliving the offending behaviour of which the jury has found you guilty. In relation to this last aspect, I take into account that you were acquitted of the charges relating to the alleged conduct on 17 January 2015 as well as the injury and endangering life charges brought in relation to 29 January 2015.
45 Your counsel has conceded that an immediate custodial sentence is warranted in all the circumstances, but has urged that Ms Cidoni’s assessment that you are of “moderate risk” of future family violence should lessen with your abstinence and positive prospects for rehabilitation in relation to your drug abuse. I have already expressed my qualms concerning Ms Cidoni’s report and whether your rehabilitation thus far for substance abuse can equate with rehabilitation for family violence offending. Your continued failure to acknowledge your offending against Ms Falzon is not a positive factor for rehabilitation in relation to family violence.
46 Having regard to there being some premeditation to assault Ms Falzon on your part, the violent mode of forced entry, the brazen nature of the offending in broad daylight at a time when you expected her to be home and know that she was frightened of you, it is my view that your offending falls somewhat above the mid-range category of seriousness for aggravated burglary. Thus, I do not consider that a combination sentence of the type urged by your counsel would adequately reflect the seriousness of your conduct, particularly after a trial.
47 Tendered at the plea hearing was a reference from your current partner, Sandra Mary Trafford, who has known you since primary school days. She describes you as committed, kind and caring, and now being drug-free. She describes you as never having been violent or hostile towards her, and helping her with her daily needs, as she suffers chronic insulin-dependent diabetes requiring up to six injections per day. She has had diabetes for over 25 years and, since her son Jack moved to Queensland, you had helped her with her daily treatment and took her to doctors’ appointments, and she says she struggles to cope with you being in custody. It was not submitted on your behalf that Ms Trafford’s long-term health issues which she has managed are such as to constitute exceptional circumstances. However, I take into account that you are likely to be anxious about her health issues whilst you are in custody.
48 Also tendered on the plea was a letter from your daughter, Jessica Hanlon, who is the child of a relationship which you had prior to your relationship with Ms Falzon. She stated that during the period that she lived with you and Ms Falzon she never witnessed you treat her abusively or treat any other woman abusively. I can only surmise that she must have lived with you prior to the abuse in the 12 months prior to separation of which I am satisfied beyond reasonable doubt did occur. She was shocked to learn of your drug abuse. This suggests that she cannot have been much in touch with you when, as you told Ms Cidoni, you were using a “shitload” of ice daily. I note that Ms Cidoni’s report refers to you “rebuilding a relationship with your daughter” so I can only assume that there was a period of estrangement or relative lack of contact between your daughter and yourself. Your daughter states you have worked hard to rehabilitate yourself since partnering with Sandra. She also stated that over the last five years she has had two children, now aged five and one year old, and you are a proud and loving grandfather to them. She and they miss you, and have been very distressed since you have been in custody. I take into account that like all prisoners deprived of their liberty you will miss your daughter and her children.
49 A third reference was tendered at the plea hearing from Peter Blakey, a family friend of some 20 years. He too was shocked to learn of your criminal behaviour, and said that you had become an embarrassed, ashamed and unemployed drug addict, whereas previously you had been someone who water-skied and boated with him and had been an extremely hard-working tradesman. He stated that he is impressed that you have been trying to turn your life around and are now drug-free, and that he will continue to support you on your road to recovery. These sentiments are echoed by a reference from your brother, Greg Hanlon (Exhibit 3) who spoke of being estranged from you from 2013 to 2015 when you had a serious drug addiction and lost everything. In spite of that estrangement, he has been a very visible and supportive presence in the courtroom both during the trial and the plea hearing.
50 It is difficult to reconcile the person described in the references from Ms Trafford, your daughter, Mr Blakey and your brother, with the cowardly, brutal and violent conduct of which the jury has found you guilty. Obviously there is a better side to your character which, unhappily, was something that in the latter part of your marriage Ms Falzon did not get to see. It is in your favour that you have made steps towards addressing your drug problem, that you have a trade to fall back on, and that you have a partner, daughter, and extended family and friends to support you particularly your loyal brother. Hopefully, these factors will assist you in reintegrating into the community, and in helping you to lead a crime-free life.
51 In sentencing you I am conscious that the assault, whilst a separate and discrete offence from the aggravated burglary, occurred in the same episode of offending whilst you appear to have been in a heightened state of agitation, and I consider that it is appropriate, in the interests of totality, to allow moderate cumulation.
52 On Charge 6, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of three years.
53 On Charge 9, common law assault, you are convicted and sentenced to be imprisoned for a period of twelve months.
54 The sentence imposed on Charge 6 is the base sentence. I direct that six months of the sentence imposed on Charge 9 be served cumulatively upon it. Save for such cumulation, the sentences are to be served concurrently. The total effective sentence is thus three years and six months imprisonment. I direct that you serve a period of two years before becoming eligible for parole. I declare a period of 166 days’ pre-sentence detention to be time reckoned as already served under the sentences imposed this day.
55 As you have been convicted of a Schedule 1 offence, namely aggravated burglary, and upon being satisfied that the property referred to in the schedule was used or intended to be used in connection with the commission of the offence or was derived or realised directly or indirectly by you from the commission of the offence, the court orders pursuant to s78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the schedule, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. The item in the schedule is one maroon Nixon cap.
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