Director of Public Prosecutions v Hassall

[2024] VCC 331

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -18-01775

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN HASSALL

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2024
DATE OF SENTENCE:	19 March 2024
CASE MAY BE CITED AS:	DPP v Hassall
MEDIUM NEUTRAL CITATION:	[2024] VCC 331

REASONS FOR SENTENCE

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Catchwords: Contravention of CCO imposed for aggravated burglary – offensive weapon (knife), assault police on duty, intentionally destroy property and theft – CCO cancelled and resentenced on original charges.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. James	Office of Public Prosecutions
For the Offender	Ms A. Patterson	Slades & Parsons

HIS HONOUR:

1Just remain seated then, Mr Hassall. I will have you stand towards the end of my sentencing remarks.

2As you know, this matter has had a very long history before the courts. I have come into the mater only very recently because Judge Ryan who sentenced you back in April 2020 to a combination type order has since retired. As you will recall, he imposed a 528 day prison sentence as well as a three year community corrections order.

3You have admitted today that you have breached that community corrections order which took effect upon your release from  prison back in March of 2021.

4The breach summons sets out the particulars of the breach and the breach is admitted.

5You admit breach by non-compliance and also by the fresh offending. You are currently undergoing a 12-month prison sentence imposed at the Horsham Magistrates Court in December 2023 for the fresh offending which had occurred earlier in that year.  Ninety-nine days had been declared at that point by the Magistrate and you have been undergoing that sentence since.  So the sentence lapse date is in September of this year. Other offences are pending and those charges, if proven, would also constitute breaches of this community corrections order.  There is the suggestion in the written submissions of Ms Patterson of possibly putting off these breach proceedings to see what happens in relation to those outstanding matters.  I see no utility in waiting for those matters to be finalised. True it is that if proven they would also constitute breaches of the community corrections order because they would be offences occurring in the currency of the order.  But it is plain to me that even dealing with the breach as currently alleged, that I must cancel the order and re-sentence you, and there really can be no sensible or serious consideration of a further combination type order in this case.  I do not believe that would be altered by the outcome of those outstanding matters. Of course, those outstanding matters are just that, they are outstanding, and they may be outstanding for a lengthy period - one of them is a contest mention, one with a brief that has not even been served.  So I see no point at all in adjourning this breach off to see if they will be proven and whether there is then a need for them to be added into the breach allegations. Maybe they will be proven, maybe they will be the subject of a guilty plea, maybe they will not be, and that may not be clear for many, many months, if indeed they are even finalised this year. 

6There is a much longer history of this matter, of course, and it is set out in the chronology of events which is attached to the Crown submissions in relation to the contravention proceedings – so these submissions are dated 15 March 2024. They have been marked as Exhibit B on this contravention.  The earlier portion of the chronology, which stretches right back to the original offending in 2018, can be found to some extent in Judge Ryan’s sentencing remarks, as well as in the various documents which were filed by each party at the original plea.

7I do not see any need to set out the full detail of the chronology. I set out only some of the many dates that are germane to my task.

8The four offences for which you were placed on the combination type sentence occurred on a single date being 21 March 2018, up in Nhill. They are the matters that were on that original indictment.  It is plain enough from the materials that you were not in a good state on that day. That is obvious given the nature of the conduct.

9The plea was conducted on 30 March 2020 and the sentence was imposed by Judge Ryan, as I have said, on 7 April 2020.

10You were released from prison on 22 March 2021. 

11The further offending, to this point proven against you and which is incorporated by the breach summons, occurred on dates in February, May, August and September 2023, and you were sentenced to that 12 month term that I mentioned. That took place on 20 December 2023.  You still have about six months to serve.

12A breach package has been filed in this court and it contains many of the original materials as well as the updated criminal history.  It contains also those sentencing remarks that I have referred to.  I have marked the breach package as Exhibit A on the contravention.  The updated criminal history that is before me is, of course, longer than the original one that had been filed at the time of the plea.

13As I was not the original sentencing judge, and I am faced with the task of dealing with this contravention, I have gone back and read all the materials filed on the original plea. Matters filed by the Crown and the Defence alike. His Honour mentioned many of those matters in paragraph 25 of his remarks. So things such as the original prosecution summary of plea opening which was dated 3 October 2018, the victim impact statement that was referred to, as well the defence submissions and the various psychological and other reports filed by the defence, including a CISP report, urine analysis results, and the reports from the Hader Clinic.

14I have read Judge Ryan’s very comprehensive sentencing remarks from 7 April 2020. I have considered the criminal history as it existed at the time of the plea. I have looked at the summaries of those proven breach offences.  Of course, I am not dealing with you for that fresh offending. You have been dealt with by the Horsham Magistrates Court back in December of last year.  I pay no regard to the pending matter summaries that have been placed before me. I have read the breach report dated 17 January 2024 authored by Maddi Alikhani, who joins us by Webex, and co-authored by Cheslea Barnes.

15I have had regard to the written and oral submissions made by each party today on the contravention hearing.  I have had regard also to the more recent discharge summary which has been filed by Ms Patterson on your behalf that related to the admission for physical issues back in May 2023.  

16It is apparent to me from the breach report, and Ms Patterson highlights this in her submissions to me, that you made some real efforts in the course of this order, and for a decent enough period. I am required as a matter of law to take into account the extent of your compliance, and I must have regard to that at every stage of the proceeding, firstly, in making judgments about what step to take under s83AS of the Sentencing Act, but secondly, if there is a re-sentencing exercise, as there is here, I must have regard to the extent of your compliance at that phase as well, because it is something that you have done under the order.

17I take into account the fact that you have pleaded guilty to the breach offence, that is the offence of contravening Judge Ryan's order. That has not really featured in the course of submissions to me. It did not need to. You get all the benefits that come to someone who admits their guilt of a crime.  We do not need to go through a contested hearing here today where witnesses, such as witnesses from Community Corrections, have to give evidence about the nature of the breach, and prove it.  You have admitted your guilt of that offence, in the same way as you admitted your guilt of the original charges, and you got credit for that as well obviously enough.  So I take into account the fact of your early guilty plea to the offence of contravention and I reduce the sentence imposed on the contravention charge accordingly.

18His Honour, Judge Ryan, who heard the original plea and had all that material before him, reached some views as to your future prospects of rehabilitation. No doubt owing to some of the matters within that material, touching upon your drug history and some of the difficulties experienced whilst on bail, he expressed the view that those prospects were, to an extent, guarded. He still thought they should be fostered and hence the form of the order that was pronounced by him back in April; a combination-type order.

19On the one hand we have the passage of time since, and that passage of time has been unkind in some respects to your prospects in that you have committed further offences on a number of different dates.  On the other hand, of course, I have the extent of your compliance over a reasonably significant period of time – the fact that you were back out in the community and working and living by all accounts, a decent life.  Then the wheels fell off.  We have His Honour reaching those views as to your future prospects.  I have to reach my own views in light of the material presently before me, and of course some of that fresh offending involves serious criminal conduct.  It is a bit hard not to some extent, downgrade your prospects of rehabilitation.

20The breach report itself recommends the cancellation of the order.  The order expires in a couple of days from now.  The report recommends the cancellation of the order and that you be re-sentenced on the original charges, and the Crown, through Ms James, support that approach. Those things do not bind me, of course. I will have to exercise my own discretion in this respect, though I note really that your own counsel does not suggest there is any true alternative in this case.

21It is plain to me that there is no realistic alternative. I believe I must cancel the order and then re-sentence you pursuant to s83AS(1)(c) of the Act.

22There was some discussion just prior to my standing down a short time ago as to the approach set out in a Court of Appeal decision of Luu[1] and whether that approach should be engaged in this case given the extent and level of your compliance with the order.  I wanted to go and read that decision afresh.  What is set out within that case is the preferred approach, for all the reasons set out within that Court of Appeal decision.

[1]Luu v The Queen [2018] VSCA 92 (‘Luu’)

23Also, there was some discussion as to whether the sentence imposed by me in this re-sentencing exercise should be served concurrently or cumulatively upon your existing sentence.  The prosecutor directed me to the statutory presumption of concurrency set out in s16 of the Act.  But that provision does not guarantee concurrency between sentences imposed for unrelated matters. There are general principles that come into play in that task.  Here, there is no relationship, none, either temporal or otherwise between the offending for which I must re-sentence you, that is the 2018 offending, and the offending for which you are undergoing sentence.  

24Whether I took up the invitation to strike free of the principles from Luu's case or not, in either event, I would be engaged in a re-sentencing task for the original offending, and of course a fresh sentencing task for the offence of contravening the order.

25Either way, I would be required to take into account the nature of the breach as well as the nature and extent of your compliance with the order. Either way, the principle of totality of sentence would dictate that I must pay regard to the sentence that you are currently undergoing. I could not just ignore it.  

26As I am engaged in a re-sentencing task though, I take into account the various things which were taken into account previously.  I do not see any utility in my sitting here rehearsing all the matters Judge Ryan took into account in his sentencing exercise. I see no need to spell all those things out explicitly. I will take them into account.  Either His Honour Judge Ryan spelt them out explicitly in his reasons or they are to be implied from his comprehensive sentencing remarks which were responding to your then counsel Ms Millar’s very comprehensive plea submissions which were dated 29 March 2020. Most of those things do not alter. You heard me say that in the course of discussions with parties a short time ago. Your youth has, of course. You were 23 at the time of the offence, 25 at the time of sentence and you are 29 years of age now.  So you are now older and you have breached the order by offending when you are older.  So, as I have said earlier, there must be some re-assessment as to your prospects of rehabilitation, and those prospects in my view are to be slightly downgraded.  They still exist and they still have to be fostered, and I cannot ignore, in making that assessment, the steps that you took to comply with the order over the time that you did.

27The nature and the seriousness of the original crimes is of course completely unaltered.  So there is no value in me setting out in my extempore reasons a portion dealing with the gravity of that offending. It was serious offending. It has not altered.  The summary describes it. Judge Ryan's sentencing remarks describe it. I will not go further into it, but I am re-sentencing in relation to it.  You pleaded guilty at the stage you pleaded guilty, and with a level of remorse in play, and that has not altered.  Of course, that was a matter of some real significance to His Honour. Though His Honour no doubt had some regard, as I will myself, to time spent in lockdown and on strict bail, as well as the Akoka[2] type time at the Hader Clinic, so these are the matters set out in the original plea outline at paragraphs 60 to 67, there is one thing that His Honour could not have factored in and that was the impact upon prisoners of the COVID-19 pandemic. I am prepared to infer that there would have been a level of increased custodial burden arising after that sentence was imposed, given the timing of that sentence in April 2020 and given what I have been told about the provision of some emergency management days in your favour. COVID-19 was a recent development when His Honour passed sentence with much unknown about it and really no particular reason to think that there would be any significant impacts upon prisoners or the service of sentence.  Well, it had a serious impact upon the conditions in which prisoners were held with suspension of visits and also suspension of the full range of courses and the like, and you were held until you were released in March 2021. I am sure there would have been an increased custodial burden suffered by you in that period and I have regard to that.

[2]Akoka v The Queen [2017] VSCA 214

28Nor do I see any profit in restating all that he was told or learnt as to your background. The fact that you had very much minimal prior criminal history was a matter he had regard to, as of course I must myself. He was not faced with the subsequently proven matters as I am.

29I take into account the application of the four principles from the case of Verdins[3]. His Honour Judge Ryan reached that finding notwithstanding some reservations that he evidently had as to some of the differences in the opinions in the reports placed before him. However, I do not regard it as fair or appropriate to consider that issue afresh and perhaps even reach a different finding, that really could not be a fair way to engage in this task and it would be something produced by the fact of the retirement of a judge, and I do not regard that as appropriate.  So I, likewise, will make allowance for those four Verdins[4] limbs in this re-sentencing task.

[3]R v Verdins [2007] VSCA 102 (‘Verdins’)

30I pay regard to your current counsel, Ms Patterson’s submissions as to the extent of your compliance and progress on the order, as well as the circumstances of the failures as described in paragraphs 17 through to 26 of her outline of submissions filed on this application, Exhibit 1. She expanded upon that in her oral submissions earlier this afternoon and impressed upon the court that you had done quite well, if not well, on the order, and for a decent period of it. She had referred also to the discharge summary which spelled out some deterioration. That admission, as I understand it, related to a physical issue, but ultimately you had painkillers prescribed when and then the wheels fell off.  Indeed, I was told they fell off to some extent in 2023. 2023 was a bad year. Your performance and attitude on that order was certainly not derisory by any stretch of the imagination. I have had people who have not even turned up, who have never been seen by Corrections, and that is not what you did, not by any stretch of the imagination. In fact it was positive, but it declined, and it would seem declined in the face of what are described as a variety of stressors in your life.  One thing led to another, to another, and to another. So the breakdown of the relationship with your partner and then homelessness and then drug relapse. Maybe not in that order.  But these are things that afflicted you in 2023.

31I do have regard to the principles of totality of sentence and I am required to consider whether the sentences I will impose are commensurate with your overall criminality.

32I also take into account the extent of the other sentence that you are currently serving and that you have been serving.  I have regard to the fact that you were credited with 13 emergency management days and that my strict pre-sentence detention declaration cannot recognise that period, so I make provision for that in the orders for concurrency which I will shortly pronounce.

33I have to take into account the various purposes of sentencing, because this is a re-sentencing task. His Honour went about that task and so too must I, and I do take that into account. I am not going to slavishly set them all out in these my reasons. It is obvious enough that general deterrence was a matter of some significance given the nature of your offending.  It is equally obvious that there was some moderation to be had in terms of general and specific deterrence, and some reduction in culpability.  These are the Verdins points that His Honour said were made good, as I do myself.

34I take into account the offence maximum penalties and the impacts of your crimes, because I am re-sentencing you for these original offences.  This was serious offending indeed. His Honour recognised that. He imposed a 528 day term of imprisonment.  He imposed also a three year community corrections order to take effect upon your release. He was extending to you an opportunity, and that was done, as he said, to foster your rehabilitation. Though you have done some good things on that order, there is no question about that, you simply have not taken the chance offered to you, and you really should have.  Had you taken that chance, had you complied with that order, had you remained offence free in the currency of the order, we would not be having this hearing here today.  But, of course, that is not what happened.

35So I find the breach of the community corrections order proven and I will need to impose a sentence in relation to that particular offence.  That is not a re-sentencing exercise. That is a fresh sentencing exercise, and as I say, I take into account the fact of your guilty plea in relation to that matter.

36Having found you guilty of that offence, and you have admitted your guilt, the offence of contravention, I have to take one of the steps that are set out in s83AS of the Sentencing Act, and there is really only one step that is open to me and that is the agreed position of the parties before me. This is a re-sentencing exercise under the provisions of s83AS(1)(c) of the Act. So I need to cancel the order because it is still in force, just, it expires in a couple of days. I need to cancel the order and then subject to sub-s(2), and that is important because that is taking into account the extent of your compliance, I have to deal with you 'for the offences with respect to which the order was made in any manner in which the court could deal with you as if it had just found you guilty of that offence.' As I say, sub-s(2) that is referred to is important, and that is what Ms Patterson is hanging her hat on. That is the extent of your compliance. That is the task that I am required to undertake, to re-sentence you in relation to those original four offences, together with a sentence to be imposed in relation to the contravention of the order.

37As to the re-sentencing task, I do not believe that it is open or appropriate to consider a further combination-type order in a setting such as this. You are undergoing a further sentence that I have no control over, you have failed to comply with the order that was imposed by Judge Ryan and there are also outstanding matters pending.  I do, though, believe that in the re-sentencing task where a prison term is plainly required, that it is open to impose an aggregate sentence on three of the original four offences, given the unity of that original conduct, that is Charges 1, 2 and 3 which relate to the aggravated burglary on the police station, the criminal damage to the police vehicle and the assault committed upon Senior Constable McLay.  I believe given the unity of that conduct that an aggregate sentence can be engaged.  It is both open and appropriate.  I exclude from that approach the sentence imposed on Charge 4.  Even though occurring on the same day, there is a disconnect between the conduct. That involved the theft of some petrol.

38I mentioned earlier the suggestion, it seemed to me from each of the parties, that I might consider not applying the principles from the case of Luu to my task. Well, I resist those invitations not to apply that case to my task.  I apply to my task the principles from that case of Luu. That case sets out what is said by the Court of Appeal to be the preferred approach in this sort of setting, and not just that, the many reasons why that approach is to be preferred and the fact that this approach decreases the possibility of anomalous outcomes.  So I will apply Luu to my task, and to that extent I am engaged in a setting aside of the earlier sentence and a sentence afresh, with a requirement, and do not lose sight of this, for me to declare the pre-sentence detention that you have served.  So do not overlook that when I come to deal with the actual individual sentences because at the end of it I will be making a declaration that you have already served 515 days.

Contravention offence

39So let me deal then with the contravention offence.  I will have you remain seated, I think.  On the offence of contravening this community corrections order, I am going to convict and sentence you to 14 days' imprisonment.

Resentencing on original matters

40On the resentencing task under s83 AS(1)(c) of the Sentencing Act, on Charges 1, 2 and 3 on the indictment, so aggravated burglary, criminal damage and assault police on duty, you are convicted and sentenced to an aggregate period of 34 months or two years and 10 months' imprisonment.  That is the base sentence.

41On the charge of theft, which is Charge 4 on that indictment, I convict and sentence you to seven days' imprisonment.

Concurrency upon base

42That seven day term imposed on the charge of theft, as well as the 14 day term imposed on the offence of contravention of the order, will be served concurrently with the base sentence and with each other.

Total Effective Sentence

43This results then in a total effective sentence of 34 months' imprisonment.

Non-parole period

44I fix a period of 20 months during which you will not be eligible for release on parole.

Relationship with existing sentence imposed at Horsham Magistrates Court

45The sentences that I have imposed will be served cumulatively upon the sentence imposed at the Horsham Magistrates Court on 20 December 2023. So it is then that the order of serving of sentence provisions in s15 of the Sentencing Act will come into play.

Section 18 - Pre-sentence Detention

46I declare that you have spent a period of 515 days by way of pre-sentence detention.  I have though allowed for the fact of the emergency management days declared in your case by not actually making the order for cumulation which I otherwise would have made in relation to the full 14 day term imposed on the breach charge.  So that approach then recognises that period which cannot be embraced within my s18 declaration.

Section 6AAA

47I see no utility in providing a general s6AAA declaration given that Judge Ryan previously provided one in his reasons. As to the fresh matter before me, I can tell you that had you pleaded not guilty and been found guilty of the offence of contravention of the order, I would have imposed a 28 day prison sentence, a portion of which would have been served cumulatively upon the base sentence that I have just announced.

48Let me just see if there is anything else I need to deal with.  Anything else from your perspective, Ms James?

49MS JAMES:  I'm just turning my mind to Your Honour's decision not to make a further s6AAA declaration. 

50HIS HONOUR:  I'm not going to make one, it's a worthless exercise.  For me to make a 6AAA declaration in relation to a case where there's previously been a 6AAA declaration is just – anyway if - - - 

51MS JAMES:  I'm sorry to push the issue, Your Honour, but I believe you're obliged to - - - 

52HIS HONOUR:  I decline.  I decline to make a fresh s6AAA declaration, I think it is a worthless exercise. One has been made by another judge.  I am making one in relation to the fresh sentence but I won't in terms of the re-sentencing.  Anything else?

53MS JAMES:  Nothing else, Your Honour.

54HIS HONOUR:  Ms Patterson, anything from you?

55MS PATTERSON:  No, Your Honour. 

56HIS HONOUR:  Do you understand the – I mean it's all happening on the spot and your client may not necessarily follow any of this, but he's got, and you will explain it and I will revise my reasons once they're back from VGRS, or wherever they come from, but it's an aggregate of 34 months, that's the head sentence because everything else is running concurrently with that, it's a non-parole period of 20 months. 

57So if we look at it purely from the point of view of this sentence, and we cannot because he's got the balance of the other sentence to serve, but once he's served that six month period that remains, he will have a handful of months to serve before he becomes eligible for parole.  So he's not to lose sight of the fact that I have made a pre-sentence detention declaration for 515, not for 528 days, for the reasons that are obvious.  Whether he gets parole of course is not a matter that I can factor in, but I am required to fix a non-parole period in the circumstances and I have fixed that period.  So anything else from your perspective or not?

58MS JAMES:  No, Your Honour, and I will relay that.

59HIS HONOUR:  Will you go down and see him downstairs today or not?

60MS PATTERSON:  Yes, if I am able to Your Honour.

61HIS HONOUR:  But if not you'll be in touch with him to discuss what's occurred here today and his rights in relation to it.

62MS PATTERSON:  That's right, Your Honour.

63HIS HONOUR:  Yes, all right.  Mr Hassall, Ms Patterson will be down to see you if she can get in, if she can't she will no doubt organise some sort of Zoom link to discuss what's occurred here today and your rights in relation to what I have done.  So Mr Hassall can be removed now, thank you.  I am sorry to have had you waiting off to the side so if we can disconnect the link to Ms Alikhani as well, thank you.

64I probably should have said before we did that, but I haven't done it, but you will report this to her, Ms James.  I see no utility in bringing any further breach back before me in the event that there are any other outstanding matters that are proven that would constitute breach offences.

65MS JAMES:  Yes, Your Honour. 

66HIS HONOUR:  I have dealt with him today.  Ten o'clock tomorrow then, thank you.

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