Director of Public Prosecutions v Hassall
[2020] VCC 409
•7 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01775
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN HASSALL |
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JUDGE: | HIS HONOUR JUDGE C.J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OFPLEA HEARING: | 30 March 2020 | |
DATE OF SENTENCE: | 7 April2020 | |
CASE MAY BE CITED AS: | DPP v Hassall | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 409 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglary – Intentionally destroy property – assault police on duty – youthful offender – rehabilitation
Legislation Cited: Sentencing Act 1991
Sentence: Term of imprisonment of 528 days together with a Community Correction Order for a period of 3 years - s.6AAA: five years’ imprisonment with a non-parole period of three years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | Office of Public Prosecutions |
| For the Offender | Ms E. Miller | Victoria Legal Aid |
HIS HONOUR:
Adrian Hassall, on 30 March 2019, you pleaded guilty to an indictment containing four charges being aggravated burglary (Charge 1), intentionally destroying property (Charge 2), assault police on duty (Charge 3) and theft (Charge 4).
The maximum penalties for these offences to which you have pleaded guilty are:
Aggravated burglary, 25 years’ imprisonment;
Intentionally destroying property, 10 years’ imprisonment;
Assault police on duty, 5 years’ imprisonment;
Theft, 10 years’ imprisonment.
You admitted your prior criminal record.
Tendered as Exhibit A and read aloud in court was a Summary of the Prosecution Opening. In short, at the time of your offending you were living in Nhill. On Wednesday, 21 March 2018, you left your mother’s home in Nhill and drove your Mitsubishi Triton utility to your girlfriend’s address in George Street, Nhill. Whilst at your girlfriend’s address, you had a minor verbal argument with her and, following this disagreement, you left her home taking a carving knife with you.
At about 9.15pm, you drove by the Nhill Police Station. Parked outside the police station was the station car, a Toyota Kluger motor car. After passing the police station, you executed a U-turn and drove your Mitsubishi utility directly into the front of the marked police vehicle at a speed sufficient to damage the police vehicle to the extent that it was a write-off (Charge 2, intentionally destroy property).
At the time of the collision, the Nhill Police Station was manned by Senior Constable McLeay. Upon hearing the collision, Senior Constable McLeay ran out of the police station and observed your vehicle leaving the scene at a fast rate of speed.
7 About 10 minutes or so later you returned to the police station in your Mitsubishi utility. Senior Constable McLeay was at the police vehicle using its radio to make arrangements in respect to the damage that you had left behind. You got out of your vehicle and approached Senior Constable McLeay, who recognised you and said to you, “Adrian, is that you? Did you hit our vehicle?”. You were about 10 metres or so away from Senior Constable McLeay, who kept talking to you as each of you approached one another. Senior Constable McLeay asked you, “What’s going on?”. You responded by saying, “I’ve had enough, I just want to die. I can’t deal with it anymore”. At about this time Senior Constable McLeay became aware that you were holding the carving knife in your right hand. Senior Constable McLeay told you to put the knife down. You did not respond but began talking to yourself. Senior Constable McLeay again instructed you to put the knife down and drew his service weapon and pointed it at you, but this did not deter you in any way. Instead, you responded to Senior Constable McLeay’s actions and commands by saying, “I want you to fucking shoot me, I’ve just had enough. I want it all to end”. As you uttered these words, you were poking the knife at Senior Constable McLeay and took about three steps towards him.
As a consequence of you ramming the police vehicle, you had knocked it from its parked position to a position close to the front door to the Nhill Police Station. To his credit Senior Constable McLeay backed away from you, not wishing to find himself in a position where he would be obliged to shoot you dead in defence of himself. As Senior Constable McLeay retreated towards the police station, you said to him, “Fucking shoot me, I’ve had enough. I want you to kill me.” You then took another few steps towards Senior Constable McLeay, who told you to, “Put the knife down. If you move any closer, I’ll shoot you”. You responded by saying, “Just go ahead and shoot me” (Charge 3, assault police on duty).
Senior Constable McLeay slowly retreated towards the automatic front doors of the police station and entered the station. You followed him. Senior Constable McLeay then moved through the security door to the police station and it closed and locked behind him.
You entered the police station armed with the knife and unsuccessfully attempted to open the security door (Charge 1, aggravated burglary).
Senior Constable McLeay continued to speak to you, trying to persuade you to put the knife down. However, you responded by walking around in circles in the foyer of the police station. Senior Constable McLeay said to you, “We can talk about this and work it out”. You replied, “Fuck this”.
Senior Constable McLeay went out a side door of the police station and into a secure yard with a view to taking the keys to your Triton utility. His aim was to prevent you from leaving the police station. However, by the time Senior Constable McLeay reached the gate to the station yard, you had got into your utility and driven off in the direction of Horsham.
At about 10.00 pm, you drove into the Nhill Caltex Service Station where you pumped $84 worth of diesel fuel into your vehicle and drove away without making any attempt to pay for the fuel (Charge 4, theft).
You were pursued by a resident of Nhill, Mr Alan McDonald, whose aim was to obtain the registration number of your vehicle. Mr McDonald pursued you in an easterly direction toward Horsham and after about 10 kilometres caught up with you and managed to note down your registration number. Mr McDonald then pulled over, executed a U-turn and stopped on the side of the road in order to write down your registration number. As Mr McDonald wrote down your registration number, you drove your vehicle past his vehicle, executed a U-turn and parked in front of his vehicle, facing him and, from about 80 metres or so, switched your headlights on to high beam. Mr McDonald returned the compliment and was able to recognise you. Shortly thereafter, you drove by his vehicle towards Horsham.
At about 11.35 pm you were found by police in the Horsham police paddocks reserve about 50 metres away from your vehicle lying on the ground.
An ambulance attended and you were conveyed to the Wimmera Base Hospital where you were treated.
On 22 March 2018, at about 7.21pm, you were interviewed under caution and made full admissions.
The cost to the Victoria Police as a result of you writing-off the police vehicle was $50,345.
After being interviewed under caution, you were remanded in custody on 22 March 2018. You were admitted to bail on 9 May 2018 and generally remained on bail until 16 December 2019, when your bail was revoked for failing to report to police on four occasions in November 2019, breaching a curfew condition on 25 November 2019, being charged with theft of a motor vehicle on 22 November 2019, and failing to answer your bail in respect of your plea hearing for the instant offences, which was to have taken place at the Warrnambool County Court on 16 December 2019.
Tendered as Exhibit C on the plea was Senior Constable McLeay’s Victim Impact Statement. Senior Constable McLeay deposes, as to his state of mind in respect to you upon your attendance at the police station. He thought you had returned to ram the police vehicle again. Having recognised you, he realised that he had known you for a few years, and upon realising that you were armed with a carving knife and were approaching him, and that he had drawn his firearm because of the risk that you represented to him, he felt fear, sadness, and frustration at the thought that he may have to take someone’s life.
At the same time, he thought that he might be stabbed and lose his own life and that he would not see his own family again.
This short summary as to Senior Constable McLeay’s state of mind does not do justice to the contents of the Victim Impact Statement, nor to the position in which he found himself.
Senior Constable McLeay still feels the effects of what occurred on 21 March 2018 in that he does not sleep very well. He has nightmares about the night. His relationship with his partner has been severely affected by this incident because of the effect it has had on him. His relationship nearly ended because of the adverse effect of this incident on him; he is unable to talk about this incident, his appetite has been affected, and he drank in order to compensate for his emotional turmoil.
But for Senior Constable McLeay’s cool head, courage, and indeed, plain human decency you would not be alive today. Yet he is the one who has suffered in the ways set out in his victim impact statement and continues to do so.
Tendered on the plea were the following exhibits:
Exhibit 1, sentencing submissions;
Exhibit 2, bundle of pathology reports;
Exhibit 3, letter from the Hadar Clinic dated 21 September 2018 plus an annexure;
Exhibit 4, reports of Warren Simmons, psychologist, dated 7 November 2018, 20 March 2019 and 9 March 2020;
Exhibit 5, emergency admission notes from the Wimmera Healthcare Group dated 22 March 2018;
Exhibit 6, medication certificate dated 9 November 2018 and attachments;
Exhibit 7, CISP progress report dated 21 September 2018;
Exhibit 8, assorted bail documents; and
Exhibit 9, a bundle of references.
Each of the exhibits listed above were referred to during the plea and are examined in detail in the sentencing submissions relied upon by Ms Miller, associate public defender, who appeared on your behalf.
Prior to being remanded in custody on 16 December 2019, your bail history was not a smooth one. On 9 May 2018, you were bailed to attend at the Hadar Clinic for residential rehabilitation. On 16 July 2019, you were expelled from the Hadar Clinic because you had breached their rules when your girlfriend was found in your room. You were arrested and remanded in custody. On 19 July 2019, you were granted bail and placed on the Court Integrated Services Program (CISP). You returned to the Hadar Clinic and completed your program that lasted 90 days, leaving that place on 21 September 2018.
It is to be noted that your attendance at the Hadar Clinic as a condition of your bail was not your first attendance at that organisation, and that you had previously undertaken a rehabilitation course of 30 days duration prior to relapse into your abuse of methylamphetamine.
You were 23 years of age at the time of your offending and you are currently 25 years old. You were raised by your parents and have two brothers, one older and one younger than you. Your mother is an aged care nurse whilst your father is a farmer. Your parents separated temporarily on a number of occasions and finally separated on a permanent basis approximately eight years ago.
You described to Mr Simmons, psychologist, that your mother behaved erratically throughout your youth and would discipline you physically. You instructed that this conduct became worse after the birth of your younger brother, as your mother wanted a daughter. You further instructed that your mother’s conduct continued until you were about 15 years of age.
You reported that your family owned two farms and that your father would go to the second property away from the home farm to drink.
You completed Year 12 at the Nhill College and you were accepted by Adelaide University to study the Bachelor of Health Science. However, you elected to defer for a period of 12 months in order to work to save money for your time at university. During those 12 months, you worked and began to drink heavily and used methylamphetamine. You lost interest in university and eventually commenced an apprenticeship as an electrician. However, you lost your licence and your apprenticeship on the first day of that job due to driving whilst under the influence of drugs.
You commenced working for the Nhill Bulk Handling in the grain bunker on a part-time basis as a schoolboy when you were 15. You continued to work there for a period of four years and claim that it was whilst you were working for this organisation that you were introduced to methylamphetamine to improve your work output. As part of Exhibit 9, is a reference dated 18 September 2018 under the hand of Michael Purchase on behalf of Nhill Bulk Handling.
Mr Purchase wrote that you were appointed into a senior role early in your years at Nhill Bulk Handling and became a leading hand in your second year of employment. Further, Mr Purchase wrote that he got to know you on a personal level over the last eight years and watched you grow into a good person and hard worker. Mr Purchase described you as an outstanding worker with an unparalleled work ethic and that he would have you back on his team in the future.
I do not know what to make of your assertion that you were introduced to methylamphetamine whilst in the employ of Nhill Bulk Handling, in order to improve your work output in light of the contents of Mr Purchase’s reference.
Since leaving Nhill Bulk Handling, you have had physical-type jobs, including bricklaying in Adelaide and working as an excavator and front-end loader operator. Prior to your remand in custody, you were working as a plant operator on the construction of power generating towers at a wind farm north of Ararat.
I was informed by Ms Miller, who appeared on your behalf, that you had a number of short-term relationships prior to taking up with your current partner. Together you have a son aged four months. However, there is a Family Violence Intervention Order against you and in favour of your partner. Accordingly, there has been little or no contact between you and your partner since that order was granted by the court. I was informed by Ms Miller, that there will be an application to alter the terms of that order so that you may have contact with your partner and child. However, in the present circumstances, whilst in custody, this is highly unlikely to occur.
You informed Mr Simmons that you began drinking alcohol at the age of 14 and you were introduced to cannabis at that age as well. You used cannabis from the age of 14 until about 17 years of age on a social basis. You began using Ecstasy and amphetamines during your school years when you began going to parties with friends. You informed Mr Simmons that this gave you confidence and Mr Simmons opined that this predisposed you to drug abuse. You informed Mr Simmons that at the age of 18 you began using Ice after it was offered to you at your workplace. Since that time, you have struggled with the abuse of that drug.
You informed Mr Simmons that when you moved to Adelaide you ceased using drugs for a period of five months but after that time you started going to nightclubs and, in that setting, commenced to abuse methylamphetamine once again. After Adelaide, you moved to Geelong, where you did some excavation work while you continued to abuse methylamphetamine. You then moved to Nhill, where you ceased to abuse methylamphetamine for a period of 13 months after completing a rehabilitation program of one months’ duration at the Hadar Clinic.
However, you relapsed into the abuse of methylamphetamine on New Year’s Eve 2017. Thereafter, you used the drug consistently for a period of three months until you were incarcerated.
Exhibit 2, the bundle of pathology reports, covers the period that you were at the Hadar Clinic during the period of your bail for the instant offences, and each of the urine analyses are clear.
You informed Mr Simmons that you were the subject of sexual abuse by an uncle when you were aged five. You told Mr Simmons that your uncle gave you something to drink and sexually assaulted you. You told Mr Simmons that you had an incomplete recollection of what occurred to you and that you did not wish to discuss the matter further and, during your consultation with him, you became emotionally withdrawn when discussing this topic.
You informed Mr Simmons that you had a long history of problems with anxiety. However, there is nothing to support this assertion save an entry in Exhibit 5, which documents that you consulted a doctor on 9 August 2017 in respect of anxiety and depression. You also informed Mr Simmons that you were diagnosed with major depression at the age of 14 and prescribed antidepressant medication which you did not take. Support for this proposition is found in the reference from your mother dated 19 September 2018, which forms part of Exhibit 9, wherein she wrote: “I will be honest, Adrian has had the ‘Black Dog’ on his back for many years and has been on and off antidepressants for many years”.
You instructed Mr Simmons that you have a history of self-harm and that you attempted to hang yourself at the age of 15. You told Mr Simmons that you were found by your mother and that your father cut you down. There is no reference to this incident in your mother’s reference of September 2018. You further instructed Mr Simmons that you attempted to end your life on a second occasion at the age of 20 when you locked yourself in the boot of your car and attempted to gas yourself. However, the tape around the exhaust pipe melted and you were found by your girlfriend.
There is some evidence of self-harm close to the commission of the instant offending in that both your mother and your partner noted an injury to your inner arm that your mother opined as a nurse, that on inspection the injury appeared self-inflicted.
You told Mr Simmons that you experience flashbacks from the sexual abuse at the hands of your uncle and you admitted that you hated your uncle. Mr Simmons initially opined that you presented with symptoms of Post-Traumatic Stress Disorder (PTSD). However, he does not set out in his reports that he has conducted any tests on you in respect to this disorder, yet in his supplementary report dated 20 March 2019 without further explanation, opined that you suffered from PTSD at the time of your offending.
Further in his first report, Mr Simmons noted that “…his behaviour occurred in the context of psychotic phenomena…” and later opined, “…it would appear that these [offences] occurred in the context of Mr Hassall experiencing psychotic phenomena as a result of methylamphetamines, which is also possibly compounded by being prescribed Benzodiazepines and antipsychotics in the immediate few days before his offence”.
In the report of 20 March 2019 Mr Simmons states, ”Although Mr Hassall may have been experiencing a drug induced psychosis at the time of his offending this would appear to have developed from Mr Hassall self-medicating in the context of suffering from Post-Traumatic Stress Disorder and experiencing problems with depression and anxiety.”
The change over time of the views/opinions held by Mr Simmons concerns me, however, what is plain is that your psychological state at the time of your offending for whatever reason or combination of reasons was compromised to such an extent that you wanted to be shot dead. The submission by Ms Miller in respect to the application of limbs 1 to 4 of Verdins to you is made good.
In a subsequent consultation with Mr Simmons on 5 March 2020, you instructed him that you dabbled with heroin when you were about 14 years of age, and that since you have been in custody and abstinent from methylamphetamine you have regained your appetite and put on approximately 10 kilograms in weight.
You still enjoy the unwavering support of your mother, although I was informed that your father’s attitude towards you has cooled in recent times.
At the time of your offending, you had ceased using methylamphetamine and had consulted your local medical practitioner on 19 March 2018. You were prescribed Seroquel in increasing amounts from 50 milligrams on day one, rising to 400 milligrams on day five, as well as Diazepam tablets in 5 milligrams dosage. It was only two days after your attendance on Dr Ahmed, that you committed the instant offences. Accordingly, should you have followed his advice you would have taken 200 milligrams of Seroquel and may have taken some Diazepam on the day of your offending. However, in your record of interview it is plain that you were not compliant with your medication and were eating a lot of Valium and Seroquel (See record of interview question and answer 99).
On the night of your offending you were at your wits end and wished your life was over. However, you wanted someone else to end it for you. Should Senior Constable McLeay have shot you in accordance with his training, he would have had to live with killing you for the rest of his life.
When you were found by police you had consumed about 40 Diazepam tablets. According to the records of the Wimmera Healthcare Group, you instructed staff there that it was your intention to sleep and not to end your life by ingesting these tablets.
Contained within Exhibit 5, the medial certificate, is a reference to a mental health plan in 2010. However, there is no other supporting document to assist me in coming to grips with the real meaning of that entry.
Your recollection of your offending as set out in your record of interview is clear and accurate. Whatever state you were in at the time of your offending it had plainly ceased at the time of your interview with police only 22 hours after your offending.
As to the issue of your rehabilitation, that is entirely dependant on your abstinence from drugs and particularly methylamphetamine. I have grave reservations in respect to your ability to achieve abstinence from methylamphetamine in light of your history of abuse of that substance. Your prospects for rehabilitation must be assessed as guarded but they must be fostered.
In sentencing you, I take into account the conditions of your bail, your time at the Hadar clinic, and the period of time that you have spent on lock down while on remand.
Objectively your offending must be regarded as serious and your offending will haunt Senior Constable McLeay for years you come. The principle of general deterrence has application in the exercise of my sentencing discretion although it must be sensibly moderated. Specific deterrence has limited application in your circumstances, and I accept that your moral culpability is reduced. Public denunciation and just punishment, however, must be given appropriate weight.
Taking into account the circumstances of the offences and their effects with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending which I regard as a course of conduct engaged in by you over a short period of time, I consider it appropriate to impose and aggregate sentence by way of a term of imprisonment combined with a Community Correction Order.
I sentence you to a term of imprisonment of 528 days together with a Community Correction Order for a period of 3 years with conditions:
i. that you be subject to the supervision of the Secretary to the Department or his Nominee
ii. that you undergo treatment and rehabilitation in respect to drug addiction, and
iii. that you undergo treatment and rehabilitation in respect to your mental health.
I declare that you have spent 165 days by way of presentence detention.
Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to five years’ imprisonment with a non-parole period of three years’ imprisonment.
Now, I will explain my sentence to you. I have effectively sentenced you to the time that you have spent in custody already plus two days short of one year. I have declared that the time you have spent in custody as pre-sentence detention. So you have effectively have 363 days left to serve. At the end of that sentence, if you consent, you will be placed on a three community corrections order. Do you consent to that order?
ACCUSED: Yeah, I consent.
HIS HONOUR: Right. Now, Mr Prisoner Officer, I wonder if you could be of assistance. The community correction order has already been sent to your records department. I wonder whether you would be able to get it, so that the prisoner may sign it, please.
PRISON OFFICER: Yes, Your Honour. I have the appropriate forms here.
HIS HONOUR: Thank you very much. Mr Hassall, if you are prepared to enter into that community correction order, sign that document. Mr Prisoner Officer, if you could be so kind, and tell me if this is capable of being done, of that being taken to your records department, so that it could be sent to me for signature.
PRISON OFFICER: Yes, Your Honour.
HIS HONOUR: If that is not possible, you have shown me his signature, and I will sign it upon receipt. What is the normal procedure at your end?
PRISON OFFICER: Yes, Your Honour. I can take that to the records officer, and she will give it to you.
HIS HONOUR: How long will that take, do you think?
PRISON OFFICER: I would say just a few days.
HIS HONOUR: A few days. All right. When that document is received by me, I will sign it. What I need to inform you, Mr Hassall, is this; at the end of your sentence, you will be placed on a community corrections order for a period of three years with conditions. One, that you must be under the supervision of a community corrections officer for a period of three years; two, that you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager; you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility, as directed by the regional manager.
At the end of your sentence, you need to attend at the Horsham Community Correction Services Level 2 21 McLachlan Street, Horsham, within two days of you completing your sentence. Do you understand?
ACCUSED: I understand, Your Honour.
HIS HONOUR: Thank you very much. In addition, there was an application for a compensation order and an application for a disposal order made by the Crown, and I have made those orders. When that document is received back to my chambers, I will sign it, and then I will forward to the prison my formal order together with a copy of your community corrections order, for your own personal records, Mr Hassall. We will break the connection now.
MS MILLER: My apologies, Your Honour. Just before we do, in relation to the compensation order - - -
HIS HONOUR: Just hold it. Yes.
MS MILLER: Sorry. I note that the draft order I received is in the full amount of $50,000, however, in the opening, I understand that it is clarified that the police were seeking the amount of the excess for the insurance claim rather than the full amount.
MR BUCKLAND: It is in the opening, Your Honour, there is two figures mentioned. I actually sought clarification of this from my instructor this morning.
HIS HONOUR: Yes.
MR BUCKLAND: The clarification was the effect that the order is sought as per the one that Your Honour signed, which is the draft order. There was a break-up on the opening where it says, "CGU Insurance, $45,800 Victoria Police 45.46". But again, as I say, my instructors have indicated the order should be made in favour of Victoria Police for the full amount.
HIS HONOUR: Well, because the circumstances of these, but absent one single order, there would be two orders. One to the insurance company and one to Victoria Police, and it is a matter as between the Victoria Police and their insurance company, how that gets broken up. So, I make the order.
MR BUCKLAND: Thank you.
HIS HONOUR: Thank you very much for your assistance, Ms Miller. I will break the connection.
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