Director of Public Prosecutions v Hartland

[2014] VCC 428

IN THE COUNTY COURT OF VICTORIA Revised
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No.  CR-08-00251

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH HARTLAND

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2012; 29 August 2012; 28 November 2013; 21 March 2014
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v HARTLAND
MEDIUM NEUTRAL CITATION:	[2014] VCC 428

REASONS FOR SENTENCE
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Catchwords:             Breach of suspended sentence; breach of Community Based Order   

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N.C. Burnett	OPP
For the Accused	Mr D. McKenzie	VLA

HER HONOUR:

1       Joseph Hartland, on 11 February 2010 I sentenced you for five offences that had occurred in 2007.  I imposed a sentence of imprisonment on some and a community‑based order on others.  Specifically on charges 3, 4 and 5 I imposed a total effective sentence of 15 months' imprisonment of which 47 days of pre‑sentence detention was reckoned already served and the balance of 408 days was suspended for two years.  On charges 1 and 2, I imposed a Community Based Order to last 12 months. 

2       You breached the CBO quite soon afterwards by noncompliance - that is you had not been attending the Melton Community Corrections Office or the appointments set up for you. On 16 July 2010 I varied and extended that Order to 16 months, and its new expiry date became 20 June 2011. 

3       In the meantime, in April 2010 you had offended by stealing a watch and jewellery from a man whose house you had been living in.  This offending was not dealt with in a court until September 2011, so was not brought before me when I dealt with you for your noncompliance with the CBO. 

4       Then you committed further offences between 12 and 13 February 2011 when you smashed the front window of a sports goods store and stole over $600 worth of goods.  For these offences you were sentenced by a Magistrate on 2 May 2012 to two months' imprisonment.  You appealed that sentence but on 6 June 2012 abandoned the appeal and served the two months from then. 

5       During that sentence, breach proceedings were commenced on my sentences and I was made aware that there was some confusion as to whether you were to be held in custody for the breaches. In fact you apparently spent two days longer in custody than had been ordered at that time, and I shall take those two days into account. 

6       It has taken many attempts but you are now before me to be sentenced for breaches of both the suspended sentence and the CBO.  Those occasions of further offending are before me as having breached both the CBO and the suspended sentence. 

7       Clearly both the theft in April 2010, and the burglary and theft in February 2011 breach the suspended sentence I imposed. They also breached the Community Based Order and those breaches have been admitted on your behalf. 

8       There was also other noncompliance with aspects of the CBO in that you failed to attend as required for some supervision, and for unpaid community work, although for some months you seemed to have engaged well with Djerriwarrh Health Services, and appeared motivated to make positive changes in your lifestyle, at least so far as illicit drug taking was concerned.  However your last contact with Community Corrections was in March 2011 when you were told that you would be breached for non‑attendances. 

9       So far as the suspended sentence is concerned, I must restore the whole of the suspended portion, that is 406 days, unless exceptional circumstances arising after I imposed the original sentence would make its entire restoration unjust. 

10      Taking as a whole from the hearing in last November and today what has been put on your behalf as amounting in combination to exceptional circumstances in this case, were the following matters that I have taken into account..

11      First, the breaching offending was not as serious as the offences for which I sentenced you originally, and not as frequent, and there is no further offending known to have occurred since February 2011. Because of the various delays, it is now three years since your last known offending. 

12      I agree that by their descriptions, and as reflected in the sentences imposed by magistrates, these were not as serious as the offences for which I sentenced you, which were repeated burglary and thefts from the same premises, including an aggravated burglary.  However, the breaching offences were thefts and a burglary, so of the same general nature, and I regard the theft of the watch and jewellery from the man who had let you stay in his house at the time as carrying the serious element of betraying that man's trust and goodwill towards you. 

13      I accept that there were just two occasions of further offending, and with your history that stands out as of some significance. However the first offence occurred only two months after I sentenced you, and the second only seven months after you had been before me for breach of the Community Based Order, so any deterrent power in my sentences was not strong enough for you. 

14      Moreover, in each instance you denied the offences when first confronted, and to police, and although you eventually pleaded guilty there is no sign of you promptly accepting responsibility for your actions, or ever feeling any particular remorse. 

15      I am also sure that when I imposed the suspended sentence I explained that any offending such as theft or burglary would breach that sentence, and only exceptional circumstances would prevent the whole of the suspended part of the sentence being restored.  I hear your counsel now say it is hard for someone of your limited functioning and memory to take that into account, or to remember it after the day it is said, but nevertheless I do think you had adequate warning of the consequences. 

16      The second factor I am urged to take into account is that you were injured in two incidents after your release after the two month sentence that ended in July 2012. 

17      On 10 August 2012 you suffered facial cuts in an altercation during which you were intoxicated.  The Royal Melbourne Hospital material which was tendered indicates a cut on your brow was treated and you were given information about care of the wound, that you had bruising about both eyes and you were to be followed up by your local doctor. 

18      Then it seems that there was another and more serious assault, although its date is unclear.  On 5 September 2012 you were seen at Sunshine Hospital in relation to injuries to your arm and hand from a box cutter which had occurred some time earlier.  There was serious plastic surgery treatment required at the time.  It is unclear to me whether that treatment and scarring you now have on your forearm was a result of the initial injuries from that incident, or the infection and cellulitis that is said to have developed through your delay in seeking treatment. Nevertheless I accept that you have been left with very significant scarring and vulnerability in that wound. 

19      I am told that your non‑attendance at court in November 2012 may have been due to the disruption of these injuries, although I find it hard to relate the second failure to appear in March 2013 to that.  I am told that you still suffer pain and disability from these injuries with an ongoing vulnerability and ongoing need for treatment. Mr Crewdson reports that when he interviewed you for a psychological assessment recently he saw your wounds, and saw you protecting your arm as you had told him you had to do all the time while in prison.  Apart from his confirmation of that I have no information as to what further treatment is required, nor why it did not occur or commence over the period between September 2012, after you were treated at Sunshine Hospital, and 28 October 2013 when you were taken into custody on a warrant following your second non‑attendance before me. 

20      The third factor that is put before me is that since the sentence was imposed there has been a change in your personal relationships, that has led to the prospect of more stability, and indeed more happiness for you.  Your previous long‑standing and very volatile relationship in which you were involved at the time of the sentencing, and at the time of the initial breach of proceedings, is said to be totally finished.  I am told that you are now in a new relationship with Ms Painting, who attended court two weeks ago and today, and that although your new partner's children are not living with her and are the subject of family proceedings she is more stable support for you than your former partner. You and she see your being together as having the possibility and beginning of a more stable household.  It was to her address in Horsham that I allowed you to be released on bail two weeks ago when the hearing needed to be adjourned. 

21      She gave evidence then of having made inquiries into getting you into the Woolshed Project for some activity and possibly leading to employment.  I am told that there has been inquiry made while you have been on bail, and there is a prospect of employment with some preliminary training through that project, although it all depends on what occurs today.  I am also told that you obtained two days of casual employment at a fishing tournament, and I am also told that before you were taken into custody in October last year, you had had some employment for a couple of months. 

22      Next, I take into account the opinion and what is pointed to by Mr Crewdson in the helpful and extensive report that was obtained after I allowed an adjournment last November for that to occur.  In particular Mr Crewdson's report highlights that although clearly not arising after I imposed the sentence on you, the impairments in your psychological and cognitive functioning as assessed by Dr Brewer and Mr Symonds and taken into account by me when I originally sentenced you, continue to affect you, and in that regard they continue to affect how you respond to the new events and circumstances that have arisen in your life since I sentenced you. 

23      Finally, I am told that you remained compliant with a methadone program, and have now been able to cease it, and replace it with an easier alternative version of patches as a substitute for heroin.  I have no medical evidence to explain or support this, but I accept that you have been remaining free from abusing illegal drugs certainly while in prison from last October, and possibly also before that. 

24      I add to what I said earlier about the issue of the condition of your arm, that while I do not have medical information as to what further treatment might be required or why it was not commenced in the period of more than 12 months before you were taken into custody at the end of last October, I do accept as relevant to my decision that with your arm vulnerable to further injury there are aspects of daily life in prison that you are likely to find more difficult than a person without a vulnerable wound to protect. To that extent I do regard the condition of your arm as relevant and arising since I imposed the sentence. 

25      What I also take into account as part of the combination of circumstances in considering whether they are exceptional is that there were two extra days in custody that you spent after the sentence that was to end in July 2012 - that is 5 and 6 August 2012 were the extra days spent - and they should be taken into account, whether strictly on a “Renzella” basis, or going to exceptional circumstances. 

26      Also I take into account for totality that had the breaches been heard at that time - indeed I offered to list them at that time when first notified of them - there may have been some concurrency in the sentences that were imposed for those breaching offences if any of the suspended sentence was to be restored. 

27      Further, I take into account that despite the reason being because of your repeated failures to appear for this breach hearing, you ended up spending more than four months in custody from 28 October last year in the meantime, before I could make this decision.  That would count as pre‑sentence detention towards the restored sentence, but it seems to me also relevant to the overall combination of circumstances, as you did show during that period of time that you had formed a commitment to staying free of illicit drugs and appear to be much healthier for it by doing so. 

28      Taking all of these matters into account, my decision is that even in combination they do not amount to exceptional circumstances which would make unjust restoration of the balance of the suspended sentence. However  I am satisfied that in combination there are exceptional circumstances that would make unjust restoration of the entire balance.  That means I have decided that the appropriate order to make is to restore part of the balance of the sentence, which if it were on a strict basis of the pre‑sentence detention, be it 130 or 131 days, and taking into account those two extra days, would leave about 11 months still to serve. In my view the appropriate sentence, taking all those factors into account, is to restore six months of the balance of the sentence. 

29      That means, Mr Hartland, that you have to serve a further six months' imprisonment commencing today. 

30      On the breach of the Community Based Order I find the breach is proved but in light of the decision I have reached in relation to the suspended sentence, I make no further order in relation to the Community Based Order.  I do not propose to impose a fine although I could have for any breach, because in all of the circumstances I do not think it achieves anything to impose a monetary penalty as well.

31      (At this stage the recording system malfunctioned.)

32      MR McKENZIE:  I don't think my learned friend takes issue with that. 

33      MS BURNETT:  No, Your Honour.  I had also the sentence remand report that indicated he was taking in on 28 October but I understand from my learned friend that in fact he was taken into custody the day prior at the Melton police station and that wouldn't be reflected on this remand history. 

34      HER HONOUR:  Wouldn't it?  All right.  I thought I had the right information.  If I had the wrong information we'll count that day.  So do we agree that that makes it 131 days? 

35      MS BURNETT:  That's right, Your Honour.

36      HER HONOUR:  Then there's the question of the two days back in July 2012 where he was held after the end of his two month sentence that had been imposed by the Magistrates' Court.  I'm not clear as to whether that was formally in respect of the breach proceedings I'm hearing or not.

37      MS BURNETT:  I don't believe it was, Your Honour, and it really should be taken into account on a Renzella basis.

38      HER HONOUR:  As a Renzella basis.  That's why I called it that.

39      MS BURNETT:  Yes.

40      HER HONOUR:  But if it formally was because of the breach proceedings it would be in respect of ‑ it would be pre‑sentence detention formally.

41      MS BURNETT:  That's right, but I don't believe it was in respect of the breach proceedings, Your Honour. 

42      HER HONOUR:  Is there any other pre‑sentence detention to count? 

43      MS BURNETT:  No, Your Honour, not from the Crown's perspective.

44      MR McKENZIE:  Your Honour, I must say I'm staggered by the revelation that it was going to be a straight six month sentence without any consideration for the previous detention.

45      HER HONOUR:  Didn't you listen to me?  Let me go back to what I said.  It would have been 406 days to be restored.

46      MS BURNETT:  408 days.

47      HER HONOUR:  408 days, I beg your pardon.  If I declare 131 days reckoned served and take off a further two days on Renzella principles it would have come down to 275 days.  Instead I was imposing a straight six months from today, which would be 184 days given the months that are involved.  I've since looked it up.  It is for that reason I said that I was not going to deduct pre‑sentence detention but had taken it into account as contributing to exceptional circumstances because it had been served ahead, in effect, of the time I was dealing with and because he was drug‑free while in gaol.   I do not intend to let him out of gaol in anything less than six months or the number of days that equate to six months.  That was the intention and I'll start again if you like.  The order hasn't been entered yet.

48      I won't restore the whole sentence.  For reasons I did explain, and won't go through again,  in total I've taken into account everything that was brought to my attention and I do not think that overall they amount to exceptional circumstances which would make unjust the restoration of any of the sentence.  What I mean by that is I think that he still needs to serve some time, but I'm prepared to find that there are exceptional circumstances that warrant not reimposing the full balance of the sentence. I consider that they don't go so far as to make unjust requiring him to serve a further portion of the suspended sentence, and in effect by ordering six months from today I was reducing the time he would otherwise serve, if I restored the lot and declared the days reckoned served and the “Renzella” days. I called it six months from today but it's 84 days. 

49      MR McKENZIE:  What's the 84 days? 

50      HER HONOUR:  Sorry, 184 days.  184 days.  Six months from today.  Four of the months are 31 day months and two of the months are 30 day months.  If you would like me to express it so it is really and truly clear ‑ I thought I had explained that but I'm more than happy to express it differently  from what I did. What I would do is direct that ‑ let me just come back. 

51      What I can do is order that 315 days of the partly suspended sentence be restored, and declare that 131 days of pre‑sentence detention served in respect of this breach hearing, or these breaches, be reckoned served.  That leaves 184 days.  Had I not found there to be exceptional circumstances warranting that only part of the suspended part be restored it would have been 408 days with the 131 days reckoned served but I would have made it 406 days actually restored because I do think on their own that the two “Renzalla” days stand as exceptional circumstances and should be counted.  So it would have been 406 with 131 declared reckoned served.  Instead I'm making it 315 with 131 reckoned served.  That's what I intended and if that gives more clarity to it, that's the way it will be worded.  To the same effect for the same reasons I gave earlier, but I'll construct it in this way so that the net effect is six months from today to be served but the actual sentence will be worded ‑ the actual order under s.31 will be that 315 days of the partly suspended sentence be restored and I declare 131 days pre‑sentence detention in respect of it reckoned served.  Technically is there anything else that needs to be specified? 

52      MS BURNETT:  No, Your Honour. 

53      MR McKENZIE:  No, Your Honour. 

54      HER HONOUR:  Right.  Mr Hartland, that's the same as what I did tell you.  Six months from today is the net effect.

55      OFFENDER:  You said you were going to partially activate and suspend it from the start. 

56      HER HONOUR:  I beg your pardon? 

57      OFFENDER:  You said you were partially going to activate the suspended.

58      HER HONOUR:  I didn't quite understand you.

59      OFFENDER:  Partially activate you said.

60      HER HONOUR:  When I originally imposed the sentence on you back in February 2010 I imposed a sentence of 15 months' imprisonment for three charges.  There was 12 months, 12 months plus three months on a ‑ I made some cumulation between the different charges.  Fifteen months, you'd already done 47 days in custody at that stage for those offences so I declared 47 days reckoned served and the rest of the 15 months added up to 408 days. So that meant it was ‑ the 15 months was partially suspended because you'd already served 47 days in pre-sentence detention and the rest of the 15 months was suspended. 

61      OFFENDER:  Yes.

62      HER HONOUR:  Do you want me to explain that again? 

63      OFFENDER:  No, what I'm trying to get at is when (indistinct) was here last go back in, you said you were only going to partially activate the suspended sentence.

64      HER HONOUR:  Yes, I'm not making you serve the whole 408 days, I'm only making you serving 315 of those, less the time you've done since late October last year, so it comes down to 184 days only to serve from here on and then that will be the end of it.  Nothing more hangs over you.  That's the end of it.  But it's six months from today, or 184 days from today, and why I called it a partly suspended sentence was I am partly restoring what was already a partly suspended sentence.  Is that clear now?  Not really? 

65      OFFENDER:  I'm just considering.  You've pretty well destroyed me wife's life now.  She stayed ‑ ‑ ‑

66      MR McKENZIE:  Can I say this, Your Honour, there was some confusion outside the court.

67      HER HONOUR:  All right. 

68      MR McKENZIE:  And his partner is obviously very distressed about it all.

69      HER HONOUR:  I can understand that but when I granted bail last week I did ‑ sorry, two weeks ago - I made as clear as I could that I was granting bail because under the law it was my view on the proper reading I needed to.  It wasn't an unacceptable risk that he wouldn't appear today because I put him on daily reporting, but I made very clear that that did not mean that I wouldn't go ahead and restore the remaining sentence unless there were exceptional circumstances, and I've entertained a lot of argument about what could be exceptional circumstances arising after the sentence was restored. It's my view ultimately that some has to be restored but not all of it. 

70      MR McKENZIE:  If it please Your Honour.

71      MS BURNETT:  As Your Honour pleases.

72      HER HONOUR:  Hopefully that now has clarified and I don't want it to have to bubble along with further confusion, so we'll have it worded this latter way. 

73      Mr McKenzie, are you going to speak to Mr Hartland?

74      MR McKENZIE:  I'll speak to him downstairs, yes.

75      HER HONOUR:  Thank you.

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