Director of Public Prosecutions v Hartwick

[2016] VCC 641

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00954

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN JOEL HARTWICK

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	11 February 2016
DATE OF SENTENCE:	18 February 2016
CASE MAY BE CITED AS:	DPP v Hartwick
MEDIUM NEUTRAL CITATION:	[2016] VCC 641

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D.M. Guesdon	Office of Public Prosecutions
For the Offender	Dr G.J. Lyon QC	Galbally & O'Bryan

HIS HONOUR: 

1Dylan Hartwick, in 2014, you and your long-term partner, you had been married and she was your wife, but in 2014 you and her separated.  You did not cope, it seems, with this.  On 18 December 2014, you spoke and texted your ex-wife asking who she was seeing.

2Then you went to her house in Leopold.  When there was no answer at the front door, you jumped the back fence.  You then saw an unfamiliar car in the garage.  You lost your temper or control, grabbed a small garden fork that was nearby and kicked in the garage door.  This gave you access to the house.

3You confronted your ex-wife demanding to know where her male friend was.  You pushed your ex-wife aside and moved to the bathroom where the male victim was hiding.  You attacked him with the garden fork, causing wounds to his face, shoulder and neck.

4As you left, you pushed your ex-wife, who was on the phone, and then jumped on the male victim's car bonnet causing damage.

5The male victim had puncture injuries requiring surgery and stitching to his left ear and injuries to his neck and face.

6After you left the house, you realised what you had done.  A few weeks later you surrendered to the police.  You were remanded in custody.  I will return shortly to what occurred to you when you were in prison, but what needs to be understood is the seriousness of your crimes and the impact on the victim.

7The male victim spoke of the consequential emotional stress, his difficulties sleeping, socialising, and generally feeling safe as he goes about his life.

8The community has had enough of men resorting to violence when a relationship ends.  Women are entitled to move on to new relationships without retribution from an ex-partner, breaking in to what should be the safety of a family home, and then attacking a new male friend.  There is no excuse, and the courts will stand firm in denouncing these violent crimes and imposing penalties to punish and deter; most often significant periods of incarceration.

9In your case what needs to be factored into the sentencing matrix is a series of events that occurred while you were in gaol on remand and then on bail.

10First, while on remand you were stabbed in the face and head by a violent disturbed fellow prisoner.  You have had surgery and been left with nerve damage.  Also, and perhaps most prominently, you have developed a post-traumatic stress disorder and anxiety, especially at the prospect of returning to custody.

11I have been assisted by the reports of three psychologists, Dr Burzynski, Mr Murphy, both of whom have treated you for some time, and Mr Cummins.

12In my view, the fifth and sixth principles that are set out, or articulated, in the well-known case of Verdins are engaged, and this allows me to consider a more lenient disposition than one of simply a lengthy gaol term.

13In February of 2016, you were granted bail.  Since then you moved into your father's house and have settled.  You were closely monitored in a tailored bail program.  You met all the onerous requirements and impressed those involved in those programs, as someone who is committed to reform. 

14I have been assisted in coming to a finding that you have made significant steps in your rehabilitation by the reports of the C.R.E.D.I.T. bail, by the reports of the Stepping Up program, and Mr Stocker, a life coach, and also by the clean urine sample documentation I was provided with.

15In addition, in this regard, I have been assisted by what has been said by the psychologists.

16You ceased the use of ice, a drug that you were binging on at the time of your offending.  You have engaged in psychological treatment, as I have mentioned, and intensive counselling.  You are volunteering to assist others less fortunate.

17You, yourself, had a difficult upbringing.  You went with your father to the Northern Territory when you were a teenager and he there became more settled and you did well.

18In recent times you are living back with your father and helping him with health problems that he now has.

19Very unfortunately, in all the circumstances, is that your ex-wife, the female victim in your crimes, reacted badly to you forming a new relationship.  She drove her car into you and your ex-girlfriend in the early hours of the morning of 30 June 2015, causing you a broken leg.  The female victim was badly injured and hospitalised for some weeks.  Your ex-wife faces more serious criminal charges perhaps than you do.

20You are now on your own, and the relationship with your ex-wife is completely over, save for arrangements for you to see your young son.  He is important to you.

21Over the years you established a business, as I understood it, in buying and selling motorcycle parts.  You are in a position to re-start that business and, in that sense, your prospects for financial stability are good.

22You have a relevant prior conviction which saw you imprisoned some 15 or so years ago.  I do not ignore this and your other less serious prior criminal matters.  At the same time I do not over-emphasise it.  It is a long time ago and you are not to be re-punished, as it were, for old crimes, but, importantly, in this regard, and generally, is that the stabbing of you in the prison has made you acutely aware of the impact of a stabbing on the victim, especially the trepidation and other psychological stresses such an attack causes.

23You have learnt from your own experience.  You have, in this rather brutal way, come to fully appreciate and empathise with the male victim of your crimes. 

24The attack on you and your then girlfriend by your ex-wife using a car has also woken you up to the ongoing pain of resorting to using violence.

25You have, I find, real remorse for what you did.  Your plea of guilty is of value, and your sentence will be significantly less than it otherwise would have been had you pleaded not guilty.

26Your prospects of rehabilitation, indeed, perhaps permanent reform, are reasonable.  It is up to you, but if you steer away from drugs, remain mindful of the consequences of using violence, you have every chance to settle and live crime free; perhaps the example of your own father after he returned from up north and sorted himself out, might be an example to you.

27In your circumstances, your post-traumatic stress disorder and the fear of returning to gaol is a matter that caused me to pause.

28Ordinarily, for your crimes, a significant gaol term would be highly likely.  However, I must factor in all your current circumstances and your psychological troubles.

29Also the sentencing regimes in this State have recently altered, and significantly so.  As a consequence of our Parliament establishing options for longer community corrections order, for longer combined community corrections orders and gaol term, and more targeted community corrections order programs to facilitate reform; because of all those matters and the decision of the Court of Appeal in Bolton I am required to recalibrate.

30Crimes which may have attracted medium terms of imprisonment can now be justly and adequately punished by a community corrections order.

31While the Court of Appeal in this State has emphasised the seriousness of aggravated burglary in the cases of Hogarth and Meyer, I must consider the long maximum term for aggravated burglary, and all other matters in a balanced way. 

32In the end, the sentencing purposes of punishment, denouncement and deterrence, to others and to you, are achieved or satisfied by a term of gaol with an onerous community corrections order.

33The latter penalty, the community corrections order can also facilitate your rehabilitation, a matter which is mandated by the Sentencing Act.

34So after anxious consideration I am of the view that a short period in prison is required, meaning, Mr Hartwick, you will be returned to prison, and on your release commence a long community corrections order.

35I am of the view that a short term in prison is sufficient while, at the same time, it will not imperil the significant advances that you have made in reforming yourself.

36The community corrections order will be no soft option and will require long effort, as well as dedication to rehabilitation programs.

37I intend to impose an aggregate term for the crimes that were on the indictment, that is, the aggravated burglary, intentionally cause injury, and the criminal damage.

38Can you please stand, Mr Hartwick.  For committing the crimes of aggravated burglary, intentionally cause injury and criminal damage, you are sentenced to four months' imprisonment.

39I order that on your release you commence a three year community corrections order with a range of conditions.  They will be, essentially, unpaid work of 200 hours.  You will be under supervision.  You will be required to undertake treatment and rehabilitation for drug addiction; treatment and rehabilitation directed at your mental health, and treatment and rehabilitation programs to reduce your risk of re-offending.

40None of those things will be easy, but some of them you have already commenced, and they will be just, in effect, overseen by the Office of Corrections.

41The community corrections order is with conviction.  If I have understood it correctly, you have served 26 days already in prison and I will declare that this period of time, 26 days, having been reckoned, is part of the sentence that I have just imposed.  I will ensure that my declaration is entered into the records of this court and transferred to the prison, making it clear to them that you have already served 26 days.  You have effectively got three months' to go.

42Now for the summary offence of unlawful assault, you are convicted and fined $400.

43Had you pleaded not guilty to these offences and been found guilty of it, I would have imposed a sentence of 18 months' with a minimum term of 12.  Upon your end of the parole period whenever that would be, then you would have been required to do an 18 month community corrections order.

44Now are there any other orders that are sought?

45MS GUESDON:  There were orders, Your Honour, I think there was disposal of the knife and a forensic sample and a compensation order for the car damage.

46HIS HONOUR:  You can be seated for the moment, Mr Hartwick.  We will move to the documentation which I will have to deal with.  Have I got it right, the 26 days?

47MS GUESDON:  Yes, Your Honour.

48DR LYON:  Yes, Your Honour.  May I approach the dock?

49HIS HONOUR:  We will get some bits of paper - you can, of course, but there will be a need to go and explain ‑ ‑ ‑

50DR LYON:  I just want to explain what each of the bits of paper that are coming so that we can get consent to them.

51HIS HONOUR:  Thank you.  The template document, Ms Guesdon, that covers the compensation, that does not have to be provided to the accused?  That remains on the court ‑ ‑ ‑

52MS GUESDON:  One copy on the court file, Your Honour, of the (indistinct) address.

53HIS HONOUR:  Yes, because it has got to be addressed.

54MS GUESDON:  Yes.

55HIS HONOUR:  He just needs to know he has to pay the man $600.

56Mr Hartwick, the prosecution have made an application that you provide a forensic sample.  I have considered that application and I intend to grant it.  The reasons that are the basis for granting the application is the seriousness of the circumstances warrant such an order, your prior convictions also warrant such an order, and the granting of the order is in the public interest.

57To that end, when the authorities come to take a scraping from your mouth to obtain a forensic sample, you are to co-operate with them; if you do not, they are authorised to use reasonable force to get the scraping.  Just co-operate.

58It seems to be saying it might happen in the prison, if it does not, he has to go to the police station, is that what - I do not think that is ‑ ‑ ‑

59MS GUESDON:  I think there is two alternative orders there, Your Honour, so only the custody is required because he is going back into custody.

60HIS HONOUR:  Yes.  Yes, I follow what you have done, that is very helpful, thank you.

61Mr Hartwick, the conditions that apply to this community corrections order; I will outline the mandatory conditions that apply to everyone and then those that apply to you.

62So it will last for three years.  It starts on the completion of your sentence of imprisonment and runs for three years thereafter.  So you will be under supervision for a fair while.

63The first condition applies to everyone.  It is critical you understand this.  You must not commit an offence for which you could be imprisoned during the time the order is in force.  Well, you would know that almost every offence you can think of is punishable by imprisonment.  So it would not matter if the magistrate gave you a fine or something, you would be back before me and the significant leniency, even mercy that has been shown here, will not be repeated.  Got to stay out of trouble.

64You must comply with any obligation requirement under Regulation 17 of the Sentencing Regulations.  I am told that means they want to take a photograph or something to identify you for work purposes and other things.  Just co-operate with that.

65You must report to, and receive visits, from the Office of Corrections.  You must report to the Community Corrections Centre here in Geelong.  That is the State Government offices over there in Lt Malop Street.  You have got to do that within two clear working days of your order starting which is two clear working days after your imprisonment is concluded.

66You must let the community corrections officer know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so from the Office of Corrections.  That is any trip.  And you must obey all lawful instructions and directions from them.

67So that applies to everyone those set of conditions.  What applies to you is you must perform 200 hours of unpaid community work over the three years.  So I have given you the three years to do it, but get it done.

68OFFENDER:  Yes.

69HIS HONOUR:  And if you do set about - if you are given a timetable to do the hours, then just turn up when you are supposed to, stay as long as you have to, and then head away.  There will be plenty who will be skiving off, but just get it done.

70You are under the supervision of the Office of Corrections, so they will want to see you from time to time.  Understand that?  And then as to your treatment and rehabilitation, you have to undergo assessment and treatment for drug abuse or dependency.  So get some ongoing help there.

71You must undergo any mental health assessment and treatment.  So that will be a psychologist or others.  So ensure that your treatment continues once you are out of prison.

72You must participate in programs and programs and courses that address factors relating to your offending.  They may have some programs relating to anger or something.  You sign that, and then I will sign it as well, and you will then have to go with the Office of Corrections four months on, less 26 days you will start this.

73So, Dr Lyon, either you or your instructor can get him to sign this particular document.

74DR LYON:  Mr Allan can take care of that, Your Honour.

75HIS HONOUR:  Is there anything further required?

76DR LYON:  No, Your Honour.

77MS GUESDON:  No, Your Honour.

78HIS HONOUR:  Thank you.

79Mr Hartwick, the court room and the like is not a place that is set up for spending any time with anyone who is here.  You will just have to make arrangements to see them after you are taken down.  I am sure you would behave, but many will not, so I have got to have the same rule.  So if you would head down with the people from the Office of Corrections and we will then shortly thereafter adjourn the matter.

80OFFENDER:  Thank you.

81HIS HONOUR:  Thank you.

82(Offender removed.)

83I thank counsel for their very significant assistance in this matter and a great deal has been done to assist me by gathering all the materials well in advance.

84DR LYON:  Your Honour please.

85HIS HONOUR:  Thank you.

‑ ‑ ‑