Director of Public Prosecutions v Havis

[2015] VCC 188

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-14-00754

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY JAMES HAVIS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	25 February 2015
DATE OF SENTENCE:	25 February 2015
CASE MAY BE CITED AS:	DPP v HAVIS
MEDIUM NEUTRAL CITATION:	[2015] VCC 188

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For the Offender	Mr R. Davis

HIS HONOUR: 

1Rodney James Havis, you have pleaded guilty to one charge of criminal damage, one charge of common law assault and one charge of theft.  Those crimes carry maximum penalties of ten years, five years and ten years respectively.  You have pleaded guilty to a settled indictment and must get the benefit of that.  Remorse would be somewhat problematic.

2You are now 28 years of age.  You have a significant criminal history extending over a number of years.  As pointed out by the learned prosecutor, there are a number of matters in that that relate to violence, but essentially most of your court appearances would appear to have been for breaching community corrections orders.  You have reached an age where your childhood has got very little to do with all of this. 

3The circumstances are that so far as the offending is concerned, you were a witness to a double homicide back in February 2011.  It is clear from the material before me, that being a report from a psychologist, one Lynne Simmons, that as a consequence of that, you suffered and probably still suffer from a post-traumatic stress disorder. 

4On 25 August 2012, you attended at a premises in Moe.  Residing there was one Mr Horscroft who had been known to you for some ten years.  He apparently had property of yours which he had not returned and had been spoken to about on previous occasions.  You, on attending the premises, were allowed in, but in the process of doing that, kicked the door open and damaging some plaster to a wall.  That gives rise to criminal damage.  You then went into the lounge room and confronted Mr Horscroft, demanding your property.  You threatened him and Mr Horscroft told you that he had been looking for the items but could not find them.  You then grabbed him by the clothes, pushed him into the corner of a wall and were inviting him to fight you.  A Mr Clegg who was also present was trying to calm you down. 

5Again, you approached Horscroft and invited him to fight you.  You grabbed him by the throat and held him up against a wall.  That gives rise to Charge 2 of common law assault.  You, not having received your property, then decided to take some of his and I note that you have therefore by pleading guilty abandoned any claim of right.  You said, "You didn't return my shit so I'm taking your shit", and you took a Predator statue.  That was returned later that day by your father, but nevertheless gives rise to the charge of theft. 

6You were interviewed by police and essentially admitted being at the premises but denied, as I understand it, the offending.  The complainant in the matter, again, as I understand it, did not turn up at the committal and is presently interstate and cannot be served.  In any event, there is no victim impact statement before me.  In all the circumstances, this is a matter which in the ultimate would probably not have left the Magistrates' Court, but I clearly understand that there were much more serious allegations involved which cannot be proceeded with because of the absence of the complainant.  You must nevertheless get the utilitarian benefit of your plea of guilty. 

7In these circumstances, I do not propose to go through your history.  Importantly, you have now not offended since the end of 2012 which is encouraging,  bearing in mind your previous offending.  There has now been a delay of two-and-a-half years since this matter occurred and I take that into account.  I take into account your post-traumatic stress disorder.  I also take into account that since March of last year you have been the sole parent of a child and that is a matter of real concern to you. 

8In a situation such as this, a suspended sentence is still available to me.  Whilst being acutely aware of the principles outlined in the decision of Boulton, you have breached community based dispositions on many previous occasions and I feel that that would be of little use.  You have reached the stage in your life where if you want to hit people, Mr Havis, you are going to get locked up for it.  The prospects of your rehabilitation are up to you.  The risk of you reoffending where you now have not offended for something in excess of two years should be improving. 

9In the end, I think that a custodial sentence is the only appropriate sentence, but in all these circumstances, I think that it is open to me to wholly suspend it.  Accordingly, and to a large extent because of your criminal history, I sentence you to an aggregate sentence of six months' imprisonment on the three charges.  That is to be wholly suspended for a period of 18 months. 

10Stand up for me, Mr Havis, if you would.  You have got two lots of six, both suspended for 18.  That adds up to 12.  If you breach it by any sort of offending - any sort - you get brought back before me ‑ ‑ ‑

11OFFENDER:  Yep.

12HIS HONOUR:  ‑ ‑ ‑ and you would have to show exceptional circumstances why you did not do it.  You would struggle to do that, so take it from me, if I am sitting here and you are standing there again, you will get a year at least.  All right?

13OFFENDER:  Yep.

14HIS HONOUR:  This gets transcribed and I will read it back to you if that happens. 

15OFFENDER:  Yes.  Thank you, Your Honour. 

16MR DOYLE:  Your Honour can I just have a quick moment ‑ ‑ ‑

17HIS HONOUR:  I do not do a triple a because I - no, I do.  Triple a, but for the plea of guilty, nine months with six to serve. 

18MR DOYLE:  Your Honour can I just have a quick moment ‑ ‑ ‑

19HIS HONOUR:  Yes, of course.  Sit down, Mr Havis. 

20OFFENDER:  Thank you, sir. 

21MR DOYLE:  Your Honour, there were a series of summary offences that were transferred.  After we started, Mr Cecil noticed there was a fail to appear that was supposed to be dealt with. 

22HIS HONOUR:  He has got matters pending, has he not?

23MR DOYLE:  No, but this was a fail to appear relating to these proceedings.  I mean it would only be a proven discharged matter. 

24HIS HONOUR:  That is what I would tend to do. 

25MR DOYLE:  Yes.  I wonder if that could be ‑ ‑ ‑

26HIS HONOUR:  If you want to get the paperwork done in the next couple of days, it can be put before me.  You have got it there. 

27MR DOYLE:  Yes, I have got it here.  Your Honour will see the transferred offences were unlawful assault. 

28HIS HONOUR:  That goes. 

29MR DOYLE:  Yes.  Wilful damage, these all subsumed by the indictment. 

30HIS HONOUR:  Yes.

31MR DOYLE:  Then there was a fail to appear on 2 November 2012 on the bail undertaking from 25 August.  That was the one we should have - can I just show ‑ ‑ ‑

32HIS HONOUR:  Yes.  Do you want me to deal with it?

33MR DOYLE:  I think it creates a series of administrative problems if it is not dealt with. 

34HIS HONOUR:  I see.  No, it does.  Do you want me ‑ ‑ ‑

35MR DOYLE:  I mean it is entirely a matter for ‑ ‑ ‑

36HIS HONOUR:  What I would simply do, bearing in mind I have given him the suspended, would be on the fail to appear, I would just convict and discharge. 

37MR DAVIS:  Yes.  Could I just have one moment, Your Honour.  I think I know what the answer will be. 

38HIS HONOUR:  Yes.  Better be, or all bets are off, I tell you that.  I can give up to a year for fail to appear, remind him of that. 

39MR DAVIS:  He has pleaded guilty to that charge, Your Honour.

40HIS HONOUR:  Yes, thank you for that.  On the uplifted charge of fail to appear, he is convicted and discharged. 

41MR DOYLE:  Thank you, Your Honour.  I realise that is not the routine way of doing things. 

42HIS HONOUR:  The end result is the same.

43MR DOYLE:  Yes.

44HIS HONOUR:  All right.

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