Director of Public Prosecutions v Hauschild
[2014] VCC 1535
•10 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01078
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT EDWARD HAUSCHILD |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2014 | |
DATE OF SENTENCE: | 10 September 2014 | |
CASE MAY BE CITED AS: | DPP v Hauschild | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1535 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Charges of aggravated burglary, common assault and theft – significant criminal history – early pleas of guilty with remorse – total effective sentence 46 months and 14 days’ imprisonment with non-parole period of 24 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan | Solicitor for Office Public Prosecutions |
| For the Accused | Mr M Phillips | Victoria Legal Aid Frankston |
HER HONOUR:
1 Brett Edward Hauschild, you have pleaded guilty to one charge of aggravated burglary which carries a maximum penalty of 25 years' imprisonment, one charge of common assault which carries a maximum penalty of 5 years' imprisonment and one charge of theft which carries a maximum penalty of 10 years' imprisonment. You have also pleaded guilty to two summary charges, which have been uplifted from the Magistrates’ Court. One is a charge of possessing a controlled weapon, a spear gun, which carries a maximum penalty of 60 penalty units or 6 months' imprisonment. The other is a charge of possessing a prohibited weapon, a knuckle duster, which carries a maximum penalty of 120 penalty units or 6 months' imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). Your offending occurred in the early hours of 7 April 2014. You had been out with your partner, Ms Butterworth, and your victim, Mr Bhupathi, playing poker machines. At about 3.00am your victim drove you and Ms Butterworth to your residence and then drove to his unit in Hastings and went to sleep. At about 5.30am you attended at your victim’s address and began banging on the front door, yelling out for your victim, who had two fellow residents at his home, who were also asleep. One of them, Mr Singh, opened his bedroom door to find you standing inside the front door of the premises holding a tyre lever. This is the conduct constituting Charge 1, aggravated burglary.
3 You abused your victim, and also, Mr Singh, who was so scared that, at your command, he returned to his bedroom and shut the door. Shortly after, police arrived, as a neighbour had reported a dispute. Your victim did not tell police that you had broken in because he was too scared and frightened to say anything in front of you. You told police that you were visiting your victim and that you were just drunk, so police then left.
4 After police left, you sat outside your victim’s residence for a while and, later, you and another unknown male, approached your victim in the unit. You pushed him and he fell into a wall. You also abused another resident, Mr Reddy, and told him to get out of the lounge room. You menaced your victim, Mr Bhupathi, telling him about all the people that you had beaten. You threw him against a wall and held your forearm against his throat and, also, held a wire to his shoulder, telling him that it was an explosive (earlier, Mr Singh had observed that you had been holding what looked like a battery with wires coming out of it). You then grabbed a knife from the kitchen bench and said to your victim, “There will be no flesh on your body”, and threatened to kill his family. This is the conduct constituting Charge 2, common assault.
5 You then ripped a gold chain from your victim’s neck and removed a silver bracelet from his wrist, and went through his wallet and stole a Commonwealth Bank debit card and demanded that your victim supply his PIN number. You punched the wall, threatened your victim and removed your shirt, which you threw on the floor. You then left your victim’s residence, also stealing an Apple iPhone and a pair of Nike shoes. This is the conduct constituting Charge 3, theft.
6 You were later arrested by police and, during the record of interview, maintained that you did not touch the victim or threaten anyone and had not pulled out any weapons. You stated that you had been drunk and mentioned that your victim had been acting like a boyfriend to your partner. You claimed that you told your victim you wanted to take his phone to check pictures on it, and would return it, and that your victim had given you the silver bracelet. You claimed that, as soon as your victim had indicated that you were scaring him, you had “backed right off”. Your version of events appears to bear very little correlation to the facts of what occurred on that night at Mr Bhupathi’s residence.
7 You maintain, as part of your material in mitigation, that, when you had been in custody a short time prior to this offending, your then partner, Sara, had been raped. You claim that your victim, Mr Bhupathi, had been accessing a site on his phone which was something to do with the alleged rape of Sara. You have articulated this, particularly in a letter to the court, tendered this morning (Exhibit “4”). I am unable to be satisfied of these facts one way or another, but they could never excuse what you did, which seems to me to be the product of substance abuse by a person, who has shown himself to have a violent disposition evidenced by prior offending.
8 You are presently aged 30 years, having been born on 22 September 1983. You come before the Court with a significant criminal history dating back to 2001. You have been convicted of a host of offences for dishonesty, assaults, criminal damage, possession of drugs and driving and weapons offences. In the past you have been given three Community-Based Orders, all of which you breached; two wholly suspended sentences, which you breached; an Intensive Correction Order, which you breached; a combined custody and treatment order, and several actual custodial sentences of relatively short duration.
9 Shortly before this offending, on 28 January 2014, you had been sentenced to a term of imprisonment from which you were released on 19 March 2014, only 16 days before committing these offences for which I must sentence you. It is an aggravating feature that, at the time of such offending, you were on bail for other matters, which are yet to be finalised. Those other offences are alleged to have been committed on 22 March 2014 and are apparently listed in the Magistrates’ Court on 23 September 2014. Save for noting that you were on bail for those offences, I take no account of them.
10 Tendered on the plea hearing was a report from Ms Carla Lechner, clinical and forensic psychologist, dated 25 August 2014 (Exhibit “1”). She took a history that your parents separated when you were a toddler, but you report a good relationship with both parents and being close to your younger sister. She noted that you have three children, aged seven and six (their mother being your former partner, Cassie) and twelve months (whose mother is Sara, with whom you are no longer in a relationship).
11 Ms Lechner noted that you had difficulties with learning at school and were diagnosed with Attention Deficit Hyperactivity Disorder, for which you were prescribed dexamphetamine. This is confirmed by a letter from Dr Andrew Hill‑Smith, child psychiatrist, dated 8 September 1997 (Exhibit “3”). He noted that, at that stage, you had that disorder and were prescribed medication. You had behavioural difficulties at school and at home, which had been present for at least two years, and required extra supervision and medication. He considered that those difficulties were likely to persist for the next 12 months.
12 According to Ms Lechner’s report, you took yourself off the prescribed medication, dexamphetamine. Apparently you had few friends at school and felt anxious and were bullied and were often in trouble. You described being “kicked out” of Wantirna Secondary College in Year 9 and, later, expelled from Heathmont High School. You left school and moved to your father’s home at the age of 15 years and, ultimately, received a Youth Justice Centre sentence at the age of 18 years. During the time of that sentence, you learned bricklaying, but told Ms Lechner that you could not hold down a job. She noted a lengthy history of drug and alcohol abuse.
13 Ms Lechner took a history that, at the time of offending, you had been taking the drug, Ice, and had not slept for 16 days. She stated that you had been feeling depressed for a long time and had had two suicide attempts recently, but she did not provide any details of them. She made a diagnosis of Polysubstance Use Disorder (DSM-V) and Major Depression (DMS-V). However, she noted that, whilst in custody, you have been prescribed antidepressants, which had assisted with your depressive symptomatology. These are Lexapro and Avanza. She also noted that you had been prescribed Methadone.
14 Ms Lechner considered that you had suffered an underlying mood disorder which had contributed to the genesis and maintenance of your drug/alcohol addiction and that you needed assistance with working on your self-esteem and self-worth so that you are not so reliant upon a partner. She considered that you had been masking internal distress with drug/alcohol use since an early age and needed to learn ways of regulating your emotions and behaviour. She considered that you were remorseful for your actions.
15 In a letter to the Court (Exhibit “2”), you stated that the period leading up to you being released from custody in March 2014 was the darkest and emptiest period of your life and you could not control your emotions. You stated that, now, you know you have severe depression and have been feeling better on antidepressant medication. You express sorrow for what you have done.
16 I must say that Ms Lechner’s report does not impress me as one of careful analysis. She states:
“Given his level of drug abuse, it is difficult to determine if he has a depressive illness that is separate from his drug abuse and withdrawal, although given his history this is most likely.”
She does not state why this is most likely and then goes on to proffer a view under the heading “Summary and Opinion” that you have an underlying mood disorder which has contributed to both the genesis and maintenance of your drug/alcohol addiction. As previously mentioned, she makes reference to two suicide attempts, without in any way giving the surrounding details or motivation for same and states:
“Mr Hauschild is at risk of becoming institutionalised if he is not given a greater level of support upon his release from custody.”
17 Ms Lechner gives no basis for proffering the view about your risk of becoming institutionalised, and your counsel, Mr Phillips, said this was not relied upon as a plank of the plea, particularly since you had not been in custody for a five year period between 2007 and 2012. Further, Ms Lechner notes your need for rehabilitation programs. However, she seems oblivious to the fact that you have been given a host of opportunities for same by Courts over the years by way of community-based dispositions with conditions for assessment and treatment relating to your alcohol, drug and psychological issues. Although Ms Lechner states that you have symptoms of Major Depression, she also records that these have improved with medication whilst you have been in custody.
18 Mr Hauschild, your offending for which I much sentence you is truly appalling. It strikes at the heart of every citizen’s right to feel safe in his own home. You were obviously affected by alcohol and/or drugs, and your behaviour was truly terrifying. You turned up to the house of your victim, Mr Bhupathi, at a time when the occupants would be expected to be asleep. You used a tyre lever to jemmy open the door. Although there are no Victim Impact Statements, it is plain from Mr Bhupathi’s statement to police that he was terrified. He speaks about you having “gone completely crazy”. He stated, “The entire time, I remained against the wall, too scared to move as he continued to threaten me. He stared me out, his eyes were wide. It was a threatening stare.”
After you left the unit, Mr Bhupathi went to lock the door and then noticed that you had smashed the lock, so that he was unable to secure their safety inside the house. He describes himself as being “numb with fear” and, in discussion with his housemates, decided to delay calling the police, again, for half an hour because you were still out the front.
19 In his statement to police, Mr Singh, one of Mr Bhupathi’s housemates, describes you abusing him, stating, “Why are you looking at me? Go to your room or I’ll take your balls out”. He said he had no idea who you were and did not call the police because he was worried that you might hear him.
20 The other occupant of the house, Mr Reddy, in his statement to police, described being shocked by your aggression and shouting. He said that he went into his bedroom, as you commanded him to do, because he was so scared. He, too, described the fear of calling police, knowing that you were still lurking outside, coupled with the fact that they were unable to lock the door because you had broken it.
21 In sentencing for this conduct, the higher courts have made it clear that a judge should not be constrained by the sentencing practice for these types of offences in earlier times. This is an indication of the seriousness with which this offence of aggravated burglary is regarded. You have behaved in a vicious, high-handed and threatening fashion. Not put off by the attendance of police, you re-entered your victims’ house and committed the crimes of assault and theft, and apparently remained outside for some time thereafter. The fear that you engendered is indicated by the fact that, when the police arrived in the first instance in response to a neighbour’s complaint about your noisy abuse, Mr Bhupathi was too afraid to mention his concerns to them.
22 Your assault of Mr Bhupathi, apart from being terrifying because he had no way of knowing whether the wires with which you were threatening him were or were not explosives, was a cowardly act, as you had another male backing you up, whilst Mr Bhupathi was on his own, you having commanded his housemates to return to their bedrooms.
23 You must realise that your being substance-affected is in no way mitigating. If anything, it is an aggravating factor, because your conduct was so unrestrained. You were so incapable of being reasoned with, that it was extra terrifying.
24 The thefts which you then committed were gratuitous and high-handed.
25 In sentencing you, this Court must denounce your conduct and place emphasis upon general deterrence, so that others who may be minded to behave in this outrageous, invasive and violent fashion will know that they will meet with appropriate punishment. In the light of your prior convictions for violence and dishonesty, there must also be emphasis upon specific deterrence and protection of the community. There can be no doubt that the only appropriate sentence for the aggravated burglary, assault and theft is one of imprisonment. The weapons which are the subject of the summary offences were not involved in the aggravated burglary or assault. However, it is of concern, in the past, that you have shown a repeated tendency to possess prohibited weapons. You have established yourself as a person of very bad character, capable of repeated violent and dishonest behaviour .
26 You are 30 years old and have been given many opportunities in the past by courts to try to do something about your substance abuse and psychological issues. Unhappily, you have breached three Community Based Orders and an Intensive Correction Order with conditions to this effect, as well as two suspended sentences. I consider that your prospects of rehabilitation are poor.
27 In your favour, I take into account that you did plead guilty at the earliest possible opportunity, namely, the committal case conference held on 18 June 2014, only two and a half months after the offending conduct.
28 You have now been in custody since 8 April 2014, and appear to have had time to reflect upon your situation. In your letter to the court, you express remorse and declare that you are going to work your hardest to try to get things right in the future.
29 I accept that your pleas of guilty are remorseful ones, and they entitled you to a high discount on the sentence which would otherwise have been imposed.
30 I take into account that you have had a difficult childhood, compounded by the consequences of Attention Deficit Hyperactivity Disorder, in circumstances where, according to Ms Lechner, you have low intelligence. Also, I take into account that you do suffer depression, which has required the prescription of anti-depressant medication, and the fact that, during your time in custody, you have remained free of illicit drugs and have been responding to that medication.
31 Your letter, tendered to the court this morning (Exhibit “4”), shows to me that many things are playing upon your mind in custody: your mistakes of the past and your separation from Sara and your children. I take into account that, when one is depressed, as you are, prison can be a more onerous experience than for someone who is not depressed. However, it is a good sign that you are reflecting upon your mistakes in the past.
32 This is probably the longest period during which you will have remained free of illicit drugs for many years, and the most compliant that you have been with any medication. If this can be maintained, and you are given a reasonably long period of supervision under parole, it is possible that you may turn your life around. Mr Hauschild, you are the only person who can make the decision to make that happen. You will soon turn 31 years of age. It does not bode well that you re-offended only 16 days after having been released from custody last time. It appears to me that your substance abuse is the major reason that you have offended, and if you do not address it, then you will go on being a menace to society and your life will be a wasted one. This Court sincerely hopes that you will be able to rehabilitate yourself but, as I have said, there is only one person who can really achieve that, and that is yourself.
33 It is one factor in your favour that you apparently still have family support. In court was your mother, sister, former partner (Cassie), an uncle and your grandmother, as well as your father. You will need as much support as possible once you have been released back into the community. The fact that you have this support encourages me to give you a longer parole period than I may otherwise have done.
34 Would you stand up, please.
35 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of three and a half years.
36 On Charge 2, assault, you are convicted and sentenced to be imprisoned for a period of 18 months.
37 On Charge 3, theft, you are convicted and sentenced to be imprisoned for a period of six months.
38 On the summary charge of possessing a controlled weapon, the spear gun, you are convicted and sentenced to be imprisoned for a period of one month.
39 On the other summary charge of possessing a prohibited weapon, a knuckleduster, you are convicted and sentenced to be imprisoned for a period of one month.
40 The base sentence is the sentence of three and a half years imposed on Charge 1. I direct that three months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, seven days of the sentence imposed on the summary charge of possessing a controlled weapon, and seven days of the sentence imposed on the summary charge of possessing a prohibited weapon, be served cumulatively upon the sentence imposed on Charge 1 and upon each other.
41 The total effective sentence is thus 46 months and 14 days’ imprisonment. I direct that you serve a period of 24 months’ imprisonment before becoming eligible for parole.
42 I declare a period of pre-sentence detention of 155 days to be time reckoned as served under the sentence imposed this day.
43 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of one tube containing a wrapped blade, a tyre lever and a black t-shirt, one knuckleduster and one spear gun. I further direct that such property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this day or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
44 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence would have been seven years’ imprisonment with a non-parole period of four and a half years.
0
0
0