Director of Public Prosecutions v Haugh
[2016] VCC 1395
•20 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR-16-00258
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW HAUGH |
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| JUDGE: | HER HONOUR JUDGE HAMPEL |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | First trial: 1, 5, 6, 7 September 2016 Retrial: 8, 9, 12, 13, 14, 15, 16, 19 September 2016 Plea: 20 September 2016 |
| DATE OF SENTENCE: | 20 September 2016 |
| CASE MAY BE CITED AS: | DPP v Haugh |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1395 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr K.J. Doyle | OPP |
| For the Accused | Mr B. Cash | Brian T. D. Cash |
HER HONOUR:
1Andrew Haugh, you have been convicted after trial of one charge of recklessly cause injury. You were acquitted by the same jury of the more serious charge of intentionally cause injury and also of two other charges of threat to kill and false imprisonment.
2The events that gave rise to the charge of which the jury has found you guilty occurred back in October of last year. You, at that time, were separated from your wife of 18 years and after separation had formed a relationship with the victim, Julie Lee.
3The relationship had been continuing for approximately four months before the events that gave rise to these charges and the jury verdict and according to what you told the police in your recorded interview, at the start of your interview, it was a loving and respectful relationship.
4On the grand final weekend last year you and Ms Lee went to your family's holiday home at Peterborough. The house is an isolated one set on the edge of farmland and a distance away from any other dwellings or the township.
5On the Friday night an argument erupted between you and Ms Lee. By the end of the argument Ms Lee was left with bruising to her forearms and her upper arms and the back of her arm near her armpit and with a graze and a bruise to her knees.
6Consistently with the jury verdict, I find that you in the course of an argument with Ms Lee, wrestled and grappled with her, pushed her to the floor and at one stage during the altercation and punched the door of a cupboard when she was in close proximity to it.
7Ms Lee gave evidence that you also pulled her by the hair across the floor down two stairs and held her by the neck in a chokehold up against the cupboard door. Whilst I consider that it is possible that you did those things, I am not for sentencing purposes able to be satisfied beyond reasonable doubt that that conduct is included in the conduct that gave rise to the charge of reckless cause injury and the jury verdict in respect of that.
8It is abundantly clear on the material that was before the jury that you had had a considerable amount to drink over the course of the day as had Ms Lee and, although, in your recorded interview you minimised your drinking and your intoxication and expressed a level of stern judgment in relation to Ms Lee's, I accept the evidence of the expert Dr Collins that it was likely that the two of you had roughly the same blood alcohol level by the time the argument erupted. I accept that it is also likely that you may well have drunk considerably more than Ms Lee.
9In any event, I refer to this only because it gives rise to a concern on my part that this was alcohol fuelled violence in the course of an argument in an intimate relationship and that alcohol fuelled violence in an intimate relationship is of real concern in our community today and something which must be condemned in the strongest of terms.
10No matter what the cause of the argument, no matter who sees who was most at fault, there is simply no warrant for resorting to violence and treating with violence a person with whom you are or have been in an intimate relationship. Ms Lee's victim impact statement makes it very clear that her sense of self, her sense of safety and her sense of trust of the world have been profoundly affected by this. Any woman or person in an intimate relationship who is subjected to anger and violence of the sort that she described and is consistent with the jury's verdict is likely to feel that way and they are likely to suffer a continuing effect, as Ms Lee has. The range of responses she described are in my view entirely consistent with the range of responses one would expect from any victim of intimate partner violence.
11Although at the start of your interview with the police you described your relationship with Ms Lee as a loving and trustful one as the interview progressed and her allegations were detailed to you, you progressed to describing her in disparaging terms as a woman scorned. From what you told the police although you had been in a relationship with Ms Lee for about four months and had been living with her in her home for the latter part of that period you had apparently not given up hope of reconciling with your estranged wife and you rapidly began to characterise Ms Lee to the police as a woman scorned, motivated you said, by being scorned to making false allegations against you. By the jury verdict that clearly is not the case.
12The conduct of the trial meant that Ms Lee was not only had it put to her that she was a woman scorned but that she had deliberately fabricated false allegations against you in order to get even for having been scorned or left. The jury has clearly rejected that account and you should reflect very carefully about that.
13You, as I said in the course of this sentencing hearing, had got to the age of 45 with a life that seemed to be working out well for you. You come from a close and loving family, you are well educated and had steady and stable employment and for about eight years it would appear before events, your life started to unravel in your mid-forties, you had run what appeared to be your own successful printing business.
14In late 2014 you separated from your wife. She remained in the family home along with the three children of the marriage. That is difficult for most fathers when that happens and it was obviously difficult for you.
15By the time the separation occurred financial problems had infected the business and had clearly affected the relationship with your wife and by early 2015 your business had collapsed.
16By late 2015 you were charged with these offences. You returned home to live with your parents, something that can be difficult for a man of mature adult years to have to go back to the childhood home. You are lucky to have the continuing love and support of your parents but nonetheless it meant that the 20 years of your adult life seemed to have been put behind you and you were back as if starting again.
17Not surprisingly your use of alcohol which had been a problem in the past but would seem to have been managed by you for a considerable time of your marriage, resurfaced. By the time or shortly after being charged with these offences, you were referred by your general practitioner to a psychologist. Not surprisingly, your alcohol intake as reflected by the description of the alcohol intake over the Peterborough weekend was of concern to the psychologist. You were also diagnosed as suffering from an adjustment disorder, not surprising given the collapse of your marriage and the collapse of your business and depression. It is always hard to know with a diagnosis of depression associated with alcohol abuse, how much one causes the other but clearly they contributed to each other.
18You remained in counselling with the psychologist for some time and appear to have made some progress in relation to addressing your depression and alcohol abuse. Although, as I said, in the course of the plea hearing you seemed to be framing the collapse of the business, the collapse of the marriage and the collapse of the relationship with Ms Lee and the circumstances that led to your being charged in terms of blaming everybody and not assuming any responsibility yourself.
19Whilst you are probably not the only one to blame for any of those matters there is a level of personal responsibility that must be assumed and that seems to have been sorely lacking in your account to the police, in the instructions you gave which led to the conduct of the trial, and in the accounts that you have given to yourself of the psychologist.
20However, you had got to the age of 45 without any convictions at all and with a life that had been a good hard-working and stable life up until then. The combination of the collapse of the marriage and the collapse of the business had clearly brought you to a very difficult point in your life where you were not able to act with the resilience that you previously had.
21In addition to not being in trouble, to being held in high regard by your family and to have been able to successfully work and manage businesses, you have also had a significant history of volunteering with the CFA. That is not only a significant community involvement but hard and often difficult work and that also must count in your favour.
22As was clear from the conduct at the hearing despite the seriousness of the offence of intimate partner violence and what must have been terrifying circumstances for Ms Lee on the night, you do not have any other convictions for violence. Although you have some pending, and I understand contested charges in relation to breach of an intervention order with your former wife, you are properly to be treated as a person of good character or previous good character for sentencing purposes.
23I do consider that the circumstances of the offending are such as to make it appropriate to record a conviction and I am going to do that. However, I do not consider it necessary or appropriate to achieve all of the sentencing objects that are required to be dealt with to impose a terms of imprisonment.
24In my view the needs of punishment, of encouraging rehabilitation, of denouncing your behaviour and of providing a sentence that acts as a deterrent to others as well as a deterrent to you, can all properly be met by the imposition of a community correction order and that is what I propose to do.
25I propose to have as conditions of that order in addition to the core conditions that apply to all community correction orders a condition of treatment and rehabilitation in relation to alcohol, and condition of treatment and rehabilitation in relation to participation in programs to reduce re-offending and specifically a men's behaviour change program and an anger management program.
26The men's behaviour change program addresses specifically anger in intimate relationships and addresses some of the misconceptions that lead to anger and violence in intimate relationships and provides some valuable and important tools for other means of conflict resolution than anger and violence. Anger management is a more general program not related only to an intimate relationship but which, it seems, is also something that you could benefit from and the community will therefore benefit from. If you learn to understand what your triggers for anger are and how better to manage your anger and to be able to take a responsibility for your behaviour without acting out angrily in a way you have that will make, I hope, you a better and happier person as well as the community and your family and those around you happier and safer in your presence.
27I am also going to impose a condition of supervision. That has a level of punishment to it because it means you must attend for supervision visits and act as directed. It also is a means of ensuring that you continue to engage in any assessment and treatment for alcohol abuse and to engage in the programs relating to reduction of re-offending.
28I considered, but decided not to impose a condition in relation to psychological assessment and treatment. It seems to me that you have managed to do that on your own, perhaps with the assistance and encouragement of family members and that is something that may well be in your interests to do but which I consider you can do without the coercive power of a community correction order.
29I am not going to impose any condition in relation to unpaid community work. It appears that you are already involved in unpaid community work and have been for some time. Whilst the report from the clyde CFA suggested your attendance had been spasmodic it is a matter for you whether you want to continue to engage in unpaid community work. If you want to put your time and energy into it then it seems to me you are better off going off to the CFA than engaging in other programs that Community Corrections runs. There are many more people who do not know how to volunteer or engage in unpaid community work who need those sort of programs and placements and again, I consider that it is up to you to do it either for yourself or as part of an expiation if you feel that way about it.
30I do consider the fact of conviction, the fact of the imposition of the CCO and the conditions on it have a punitive element and that the punitive needs of denunciation are adequately met by the conditions that I propose to impose.
31I am told that an order of 12 months will be of sufficient duration to allow your assessment for eligibility and then participation in a men's behaviour change and anger management program. It is my view that if that time frame cannot be met then it is incumbent upon corrections and you to bring the matter back before me to seek a variation of the order to either substitute conditions or to extend the order for the purpose of allowing participation in those programs. They are, as far as I am concerned, a core component of the punishment of the order that I propose to impose.
32I have also been asked to make a forensic sample order and I propose to do that. The nature and circumstances of the offending and the - though I am not punishing you for exercising your right to plead not guilty, the denial of the offending is also a matter I take into account in deciding whether it is appropriate to make an order. When I say the denial of the offending, I am speaking here of the denial of the charge of which the jury has found you guilty not in any way taking into account for sentencing purposes any of the circumstances surrounding the charges of which the jury has found you not guilty.
33Now, so far as the forensic sample order is concerned, Mr Haugh, I am going to direct that that be taken by way of buccal sample. That is a mouth swab that you must provide and I must warn you that if you do not co-operate in the provision of that sample then the Police are authorised to use reasonable force to obtain that sample and it is likely that they will use the more invasive method, namely the taking of a blood sample in order to get that forensic sample. Do you understand that?
34OFFENDER: Yes, Your Honour.
35HER HONOUR: Just wait while the CCO is printed out and I will read the formal conditions to you.
36MR DOYLE: Your Honour, in relation to the summary matter, Your Honour should strike that out.
37HER HONOUR: In relation to the summary charge it is struck out.
38MR DOYLE: Thank you.
39HER HONOUR: Yes. Could you please stand Mr Haugh?
40Andrew Haugh, on the one charge of which the jury has found you guilty, that of recklessly cause injury, you are convicted. You are sentenced to be placed on a community corrections order for a period of 12 months commencing today and ending on 19 September 2017. There are mandatory terms that apply to all community correction orders. They are these: You must not commit another offence for which you could be imprisoned during the time that the order is in force.
41You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by alcohol or any other illicit substance at any time when you attend Corrections for a supervision visit or for any visits or other attendances as directed by them and you must submit to drug or alcohol testing if directed to do so.
42You must report to and receive visits from the Secretary or delegate. You must report to the Community Corrections Centre at Rosebud, Rosebud Justice Service Centre at Unit 2, 843-849 Point Nepean Road, Rosebud within two clear working days after the commencement of this order. So, today being Tuesday, that means by Thursday of this week. You must let a Community Corrections Officer know within two clear working days if you change your address or job.
43You must not leave Victoria without first getting permission to do so from the Secretary or Delegate and you must obey all lawful instructions from and directions of the Secretary or Delegate.
44In addition to the mandatory terms, the following special conditions are imposed. You must be under the supervision of a community correction officer for the period of 12 months of the order. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager specifically a men's behaviour change program and an anger management program.
45Do you understand the effect and conditions of this order?
46OFFENDER: Yes, Your Honour.
47HER HONOUR: Do you consent to it being made?
48OFFENDER: Yes, Your Honour.
49HER HONOUR: I will ask Mr Cash to take down to you and have you sign it acknowledging that?
50OFFENDER: Yes, Your Honour.
51HER HONOUR: Meanwhile I will sign the forensic sample order. Now, Mr Haugh I have counter-signed the CCO and I have signed the forensic sample order. There is a very complicated time frame for compliance with the forensic sample order. You have to let four weeks go by to allow the time for appeal to expire and then you must attend within 28 days of that.
52OFFENDER: After the four weeks.
53HER HONOUR: After the four weeks.
54OFFENDER: Yes, Your Honour.
55HER HONOUR: So, in other words, in the second month after today.
56OFFENDER: Yes.
57HER HONOUR: You must attend and you must attend to Mornington Police Station and present yourself to the officer in charge there. Mornington Police Station is at 8 Main Street in Mornington. I think you have been reporting there on bail in any event; haven't you?
58OFFENDER: Yes, Your Honour, I have.
59HER HONOUR: You will know it very well.
60OFFENDER: Very well.
61HER HONOUR: Well, it means your bail is over now, but you are still subject to the CCO. I sincerely hope, Mr Haugh, that once you get the issues in relation to the intervention order behind you that this will be the last time you see the inside of a courtroom. It has clearly been a difficult period in your life you've been through in the last couple of years and as I said, I think things have unravelled for you but you show yourself to be a man of intelligence and capacity and you have conducted yourself well and respectfully throughout the court proceeding. I hope it has been a sobering experience in many ways and that you will see it as one that you do not want to return to.
62OFFENDER: Agreed, Your Honour.
63HER HONOUR: That you go back to appreciating the love and support of your family and get your life back together.
64OFFENDER: Agreed, thank you, Your Honour.
65HER HONOUR: You can take a seat. I am just signing that last order. We need strike two of the formal order. I can do that in chambers.
66MR DOYLE: Yes, Your Honour.
67HER HONOUR: All right.
68MR CASH: Can I mention one matter, Your Honour?
69HER HONOUR: Yes, you can, Mr Cash.
70MR CASH: Your Honour, my late wife who had a lovely sense of humour had a notice on the refrigerator, "Old lawyers never die, they just lose their appeal." This is my swan song and I want to say this, Your Honour; there was a lovely warm atmosphere in this constituted court and I thank you for the court's forbearance.
71HER HONOUR: Thank you, Mr Cash. I will remember that I presided over your last trial and your last court appearance and I hope that you hang that gown up with some pride. Put it somewhere where you can look at it but as now, a relic and in a place that will give you some fond memories as you farewell this part of your career.
72MR CASH: As Your Honour pleases, thank you.
73HER HONOUR: I think I did make the order ‑ ‑ ‑
74MR DOYLE: Did you make that order, Your Honour. I know it was mentioned, whether it was actually, I just raise it just in case it's forgotten.
75HER HONOUR: Thank you, Mr Doyle. I would like to also thank Mr Doyle for the assistance that he gave you with the more modern aspects ‑ ‑ ‑
76MR CASH: Yes, yes.
77HER HONOUR: ‑ ‑ ‑ of legislation and filing requirements amongst other things. I did say you are entitled to a certificate, Mr Cash for the ‑ ‑ ‑
78MR CASH: Yes.
79HER HONOUR: ‑ ‑ ‑ first trial and I will make that order in chambers and provide you with the - my associate will provide you with the - have I already done it? Have I signed it?
80MR CASH: Yes, she's already done it.
81HER HONOUR: I have signed it already. Good, you've got that. That's it then.
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