Director of Public Prosecutions v Haseloff
[2016] VCC 308
•17 March 2016
| Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCR 15-01804
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PAUL AARON HASELOFF |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 10 March 2016 |
| DATE OF SENTENCE: | 17 March 2016 |
| CASE MAY BE CITED AS: | DPP v Haseloff |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 308 |
REASONS FOR SENTENCE
---Subject: Criminal law - sentence
Catchwords: Pleas of guilty to one charge of possessing a firearm being a prohibited person, one charge of making a threat to kill, one charge of criminal damage, one charge of reckless conduct endangering serious injury and two summary charges of assault– victim was de facto partner – offending in presence of 6 year old child – offending in context of escalating domestic violence over several weeks - criminal history including conviction for murder of partner – victim and child had to relocate to another town – both suffering PTSD
Sentence: 4 years 3 months imprisonment with non parole period of 3 years 3 months. ---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Bourke | OPP |
| For the Accused | Ms B Franjic Ms J. Clark at sentence | Balmer & Associates |
HER HONOUR:
1Paul Aaron Haseloff, you have pleaded guilty to one charge of possessing a firearm being a prohibited person, one charge of making a threat to kill, one charge of criminal damage and one charge of reckless conduct endangering serious injury. You have also pleaded guilty to two summary charges of assault.
2You committed these offences on 8 February 2015 when you had been living with the first complainant, Monique Cummins, for several months. Her six-year-old son Koby who also lives with you is the second complainant.
3The background to what occurred was one of frequent domestic violence directed by you towards Ms Cummins with the child often a witness to it. The violence increased after Ms Cummins' father died on 23 December 2014. The third complainant is Leigh Bruhn, who is an acquaintance of the child's grandfather, Robert Kupyers.
4On 7 January, Mr Kupyers and Mr Bruhn went to Ms Cummins' home to return her car which they had been fixing for her. On arrival, they heard heavy thuds and Ms Cummins screaming inside the house. They ran inside and saw you throw Ms Cummins into a door. She landed on the floor and you stood over her with a clenched fist. That gives rise to the first summary charge of assault.
5Mr Kupyers and Mr Bruhn yelled at you to get away from Ms Cummins whereupon you went to the bathroom, arming yourself with a beer bottle which you intended to smash. Ms Cummins urged the two men to leave, and as they did, you yelled at Mr Bruhn, "You're dead, dog, you're the dog and you're dead". You had managed to smash the bottle which you were holding as you said this.
6When the two men were outside, you again yelled at Bruhn through a window, "You're dead, dog." This gives rise to the second summary offence of assault.
7The child was at home and witnessed these events.
8At about 9 pm on 8 February, Ms Cummins and her son arrived home after spending the previous night in Mr Kupyers' home out of fear of you. She was driving a blue Commodore sedan belonging to Mr Kupyers. She parked in the driveway and got out of the car. As she approached the front door, she saw you behind the carport fence holding a sawn-off firearm which you were resting on top of the fence. This is Charge 1 on the indictment, a prohibited person in possession of a firearm. You said to her, "Get here, cunt, you've got questions to answer."
9Having seen the firearm, Ms Cummins screamed for her son to get back in the car and she ran to the car and reversed out of the driveway. As she did so, you ran through the gate, placing the firearm down the front of your pants and lunged at the car, yelling, "I'm going to kill you, you cunt". This is part of Charge 2, making a threat to kill.
10As Ms Cummins drove away at a fast speed, you chased her in your car and she saw you accelerating towards her from behind. You overtook her car and braked suddenly, causing Ms Cummins to swerve onto the wrong side of the road to avoid a collision with your car. She drove off at a speed of about 100 kilometres per hour attempting to get away from you, and you followed and pulled up alongside her in the opposite lane. You wound down your window and said to her, "I'm going to get you and kill you, you dog". That is the other part of Charge 2.
11You then rammed your car into hers, causing damage to that car. She managed to continue driving and ran a red light because you were still following her. She then lost sight of you and went to the nearest police station where she ran inside in a distressed state and asked for help.
12The course of conduct you engaged in by following the car driven by Ms Cummins in the manner you did, and then ramming her car with yours is the basis for Charge 4, reckless conduct endangering serious injury.
13The next day, you were arrested and interviewed and you denied the allegations, claiming that Ms Cummins had attempted to run you over in the driveway. You had claimed that she pursued you and rammed your car. Clearly that did not occur. You denied possessing any firearm or making a threat to kill.
14Apart from the summary offences for which the maximum penalty is three months' imprisonment, the other offences all carry substantial maximum terms of imprisonment. For being a prohibited person in possession of a firearm, for making a threat to kill and for criminal damage, the maximum penalty is 10 years' imprisonment. For reckless conduct endangering serious injury, the maximum is 5 years.
15The indictable offences are all serious charges and in the context of this case, your offending was particularly serious. The chief reason for this is that Ms Cummins knew that in 1997 you had been convicted and had then served a long prison sentence for the murder of your partner. You had discussed this with her and so you knew that she was aware of it. When she saw you armed with a gun, she knew that you had shot the victim, that your aggressive confrontation of her that day, 8 February, was a month after you had assaulted her violently in her home. Furthermore, having made a threat to kill her, you then followed her in your car and finally rammed her car with yours.
16She was so frightened for herself and her son that she sought refuge in the police station as soon as she could. Her victim impact statement spells out clearly how frightened she was then and still is, and how her life has been seriously affected. It is extremely sad that her son has been subjected at such a young age, not only to witnessing your violence but to being the victim of it as well.
17According to his victim impact statement, Mr Kupyers has also been significantly affected both directly and in providing support for her by accompanying her to a new location to live and being aware of the difficulty she is struggling with.
18Your background provides little by way of explanation for your criminality which dates from your early adulthood. Heavy use of amphetamines in your twenties following several years of cannabis use is the only likely cause. You grew up in an intact family although your father was a heavy drinker and subjected your mother to verbal abuse. Your parents separated some 15 years ago.
19You completed Year 10 at school but misbehaviour in Year 11 resulted in you being asked to leave. You completed an apprenticeship in carpet laying and had your own business for a year. After your first term of imprisonment, the work you had had was no longer available due to the death of your work partner and you then worked casually in between prison terms.
20I was told by your counsel that you have calculated that in your adult years, you have spent all but 20 months in custody. Ms Lechner, the psychologist who assessed you recently, identified a high risk of institutionalisation demonstrated partly by the difficulties you experienced in settling into society on several occasions after your release from prison. Ms Lechner considers that you have some insight into this, in particular into your lack of coping skills and dependence on illicit drugs to manage your anxiety and lack of social skills. In her report, she has emphasised the need to tackle the proven obstacles to your remaining crime free when released from custody.
21Without the benefits of parole or some other form of community supervision and structure, you will very likely be at risk again of reoffending when you are eventually released from custody. Ms Lechner has assessed the risk as moderate to high. Whether or not you are released on parole is not a matter I can take into account.
22Your counsel submitted that a possible disposition could be a combined prison sentence and community corrections order, taking into account your need for proper support at the time of and after your release. In theory, that could be done by sentencing you to a term of imprisonment of just under two years to be served in addition to the 13 months you have already served. However, I take the view that that period of time - about three years - is insufficient in order to achieve the purposes of sentencing which include in particular general and specific deterrence and just punishment.
23Rehabilitation is always a matter to be considered and there are some positive indicators for your successful rehabilitation, such as your work skills and history, the fact that apart from the conviction for murder, there are no other convictions for violent crime, and the support of your mother, who was in court for your plea hearing.
24You pleaded guilty at an early stage and thereby avoided the need for a trial, and importantly saved the victims from having to give evidence. For facilitating the justice system in that way, you are entitled to a discount on your sentence and I also accept the plea as an indication of remorse. You have also expressed that to Ms Lechner and she concluded that you were genuinely remorseful. Your insight, intelligence and desire to change also suggest a positive approach to your rehabilitation. How successful that will be depends very much on the support you are offered and that you take up when released, and there can be no certainty about that. It follows that your prospects for rehabilitation can only be considered guarded.
25A further mitigating factor however is said to be that you have experienced onerous conditions whilst in custody. You have been in 23-hour lockdown because of the prison riots in mid-2015 and this has prompted traumatic memories for a fire you experienced in prison in 2010. I take that into account.
26These crimes occurred in the context of a volatile relationship, with sufficient planning for you to have armed yourself with a firearm and being determined to extend the duration of the episode by following the complainant in your car. The offending is aggravated by the escalating violence by you towards Ms Cummins after her father died and in turn, the events of 8 February are aggravated in their seriousness by the assaults on 7 January. Ms Cummins was already very fearful of you, and that would have increased her fear when you threatened to kill her and follow her in your car.
27The initial attack on her was when she was in her own home where she was entitled to feel safe, but ultimately she had to take refuge in a police station. She has had to leave her home and live in another town in order to enhance her safety and is isolated from her family and friends. Your behaviour deserves the unreserved condemnation of the court, and those who would behave violently to their partners through anger and apparently in demonstration of their power over them, must know that they will be punished severely.
28Your counsel referred me to the statistics produced by the Sentencing Advisory Council as to the length of sentences of imprisonment imposed for these crimes. The statistics have only limited utility and the circumstances of each case must determine the outcome. Ms Franjic, who appeared for you, assigned degrees of seriousness to each of the indictable charges and I agree with her broadly except to say that the charge of making a threat to kill - which she took care to say was not at the lower end of the range of seriousness - is in my view serious enough to place it higher than that, and high enough to warrant a sentence of imprisonment greater than the 9 per cent of offenders who attracted sentences of two to three years.
29I also consider that Charge 4, reckless conduct endangering serious injury, whilst impulsive, was the culmination of a determination to terrify the victim, knowing her child was there as well.
30In the circumstances of this case as I have outlined, the sentence of imprisonment must exceed three years and I sentence you as follows.
31For Charge 1, possessing a firearm as a prohibited person, two years and six months.
32For Charge 2, making a threat to kill, three years and six months.
33For Charge 3, criminal damage, 12 months.
34For Charge 4, reckless conduct endangering serious injury, 18 months.
35For the Summary Charge 8, the assault on Ms Cummins, two months.
36For Summary Charge 10, the assault on Mr Bruhn, one month.
37The sentence for Charge 2 is the base sentence for the purposes of cumulation. I order that four months of the sentences for each of Charges 1 and 4, and one month of the sentence for Summary Charge 8 be served in cumulation upon the base sentence. That results in a total effective sentence of four years and three months.
38I order that you serve a minimum period of three years and three months before being eligible for parole. There is to be no order for cumulation in respect of the sentence for Charge 3 nor for Summary Charge 10.
39In determining the length of the sentences, I have taken into account the principles of totality and proportionality, and have ensured as far as possible that the sentence is not a crushing one. In regard to Charge 2, you are to be sentenced as a serious violent offender but the prosecution does not seek a sentence that is disproportionate to the gravity of the offence.
40If you had pleaded not guilty to these charges and been found guilty, I would have sentenced you to a total effective sentence of five years with a non-parole period of four years.
41You have spent 402 days in pre-sentence detention (not including today), and that is to be reckoned as already served and I shall cause that to be noted on the court record.
42HER HONOUR: Are there any other matters?
43MR BOURKE: There was a compensation order sought, Your Honour, being damage to the car. On the last occasion Ms Franjic requested a copy of the quote that she was provided but we haven't heard anything else from Mr Haseloff's side of things as to whether that application is opposed or not. The sum is $3,833.71. I will provide my learned friend today again with a copy of the quote from a body works business.
44HER HONOUR: Ms Clark, have you had an opportunity to consider that and get instructions?
45MS CLARK: I have considered that before today, Your Honour, really it's a matter for Your Honour and I'd just ask that Your Honour does take into consideration that Mr Haseloff has currently got no income and making payment of any order would be significantly difficult for him but ultimately it is a matter for Your Honour.
46HER HONOUR: Yes, all right. Could I have a look at the order please, Mr Bourke.
47MR BOURKE: Yes, Your Honour.
48HER HONOUR: I've had a look at that. Ms Clark, all I need to know from you is whether there's consent to it or not.
49MS CLARK: It's not consented to.
50HER HONOUR: Not consented to, all right. Notwithstanding that, I will be making that order.
51MS CLARK: As Your Honour pleases.
52MR BOURKE: Your Honour pleases.
53HER HONOUR: I'll return that draft to Mr Bourke's instructor. You may be taken now, thank you, Mr Haseloff.
54MS CLARK: As Your Honour pleases.
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