Director of Public Prosecutions v Hayes

[2022] VCC 1607

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

CR-21-01693

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

JULE HAYES

BRIAN HAYES

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 September 2022
CASE MAY BE CITED AS:	DPP v Hayes & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1607

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For Accused Jule Hayes	Mr J. Lavery	Kurnai Legal
For Accused Brian Hayes	Mr R. Thyssen	Kurnai Legal

HIS HONOUR:

1Brian Hayes and Jule Hayes, you have each pleaded guilty to:  one charge of causing injury intentionally; two charges of common assault; and one charge of intentionally damaging property.  Those crimes carry maximum penalties of
10 years, five years and 10 years respectively.

2You, Brian, are now 27.  You, Jule, are now 25.  The offending occurred some four and a half years ago.  I will be outlining the details of it in a moment.  There has been a lot of water passed under the bridge since this occurred.  There committals were adjourned on a number of occasions, as I understand it, because of the failure of Crown witnesses to attend.  It is my understanding that the principal Crown witnesses in fact are in prison and would have been all giving evidence as prisoners in front of a jury and it seems to me that the plea of guilty involved in all this comes after a long delay as to a settled indictment and the utilitarian benefit of it both to the Crown and the community, in my view, is enormous.

3Saying that, I also have to take into account the fact that any custody sentence will be undergone under COVID conditions and I am well aware of the principles outlined in Worboyes.

4Insofar as delay is concerned there are the words of Vincent J from a long time ago that delay can have a number of factors:  (1) it is a person's chance to rehabilitate.  In your situation, Brian, that may well be what has occurred.  In your situation, Jule, somewhat understandably, that has not occurred, but in your situation during that four and a half years you have done something in the order of approaching three years of sentences for other matters, and on my calculations I think the other day it was about four or five other different sentences, and you have 70 days of PSD for this one.  The way I see all this where you, Brian, have been able to somehow keep yourself out of trouble for that period of time, enough is enough.

5Each of you, as I have said, has pleaded guilty.  Twenty-seven and twenty-five.  I have outlined those matters of delay and the like and they are very important, as becomes clear immediately, just from a very brief reading of the material since placed on your behalf, the principles involving Muldrock, Verdins and Bugmy all play a part in this sentencing process and I think I will just do it in one hit because I am not here to embarrass the two of you but particularly having dealt in the Koori Court so often one gets used to a certain extent to such deprived backgrounds but the two of you have had exceptionally deprived backgrounds and extraordinarily, unfortunately what a society can manage to do to young Aboriginal people such as yourself and you two sit there as a stark reminder of the failures of that system.

6The offending involved you, Brian, and you, Jule, and your late brother, Troy, apparently, attacking a man named Daniel McCoy, using weapons and causing him injury intentionally.  You were all known to each other and
Mr McCoy and his partner, Ms Vincent, who were both in custody at the time the trial was listed, are part of the same milieu of offending that the two of you seem to belong to.

7A Mark Cameron arrived at the scene, which I will describe in a moment, and attempted to intervene and he was hit.  A local resident, Mr Walker, asked what was happening and he essentially was assaulted as well.  That gives rise to the two assault charges.  As the vehicle of Mr McCoy was owned by a Mr Cameron and that was damaged as the three of you were leaving the scene.  I do not think I have to go into great detail other than what happened was that there was a situation where the three of you came up to McCoy's house and called out to him.  You, Brian, apparently tried to open the door of the house.  You then walked across the road and apparently picked up garden stakes.  There was then a phone call made to McCoy by Vincent and he immediately phoned
Mr Cameron and asked him to help, who I assume is part of the same milieu.  Vehicles turned up from everywhere and essentially there was what is probably best described in general terms as an affray.

8The ultimate situation was that each of those individual charges was made out.  McCoy was attacked while he was in the vehicle and he was struck with various weapons and I have already indicated the two people who turned up to assist or tried to assist McCoy were assaulted themselves.  I do not think I have to go through the Crown opening in any more detail than that.  It is clear that
Mr McCoy did suffer an injury and they were not insignificant injuries and I obviously take all those matters into account.  There is no victim impact statement in this matter and that does not surprise me.  In the normal course of events this would call for a significant custodial sentence.  You, Brian, have no
pre-sentence detention.  You, Jule, have 70 days plus the Renzella time that I have already referred to.

9I then looked at the background of each of you and it is, as I said, a sad one indeed.  What I will do is simply refer to the submissions of counsel.  The reports of the psychologists are on file and pretty clearly indicate the background involved here.

10You, Brian, are 27.  You, Jule, are 25.  You were born and raised in
Latrobe Valley.  Your parents were both alcoholic and you both obviously are of Aboriginal people.  Each of you were removed from your parents at the age of seven.  You lived with relatives, you lived in foster care and you were in residential units through Berry Street.  The pair of you were somehow able to stay together for most of that time.  You, Brian, were first detained in
Youth Justice facilities when you were aged 13.  You, Jule, about the same.  Brian, you had numerous priors up until this offending.  So did you too, Jule, and you have subsequent matters.

11Each of you at that stage had had Justice Centre orders and I have read the psychologist's report.  You Brian, fall within the intellectual disabled range with an IQ OF 63 to 73.  You, Jule, fall into the same intellectual disability regime.  It is clear that each of you suffers very much from drug abuse, alcohol abuse, mental health disabilities.  Indeed, on top of the cognitive defect you, Brian, have a schizotypal personality disorder, and various attempts have been made over the years to deal with all that.  I have sentenced you before, Jule, I know that.  You have been on Justice plans and each of you is probably incapable, really, of doing a community corrections order.  I do not see the point in that.  As I understand it now, each of you is in touch with NDIS who, in my view, are a far better organisation to be dealing with than Corrections, in any event, and I say that with no disrespect to Corrections.

12You, Brian, are in a situation where you have had real instability over the last few years and for the rest of your life.  In that time I think there is one matter that I have been referred to, which is not of great significance.  You now are in a situation where you are complying and you are doing your best.  Your counsel has told me this morning that you finally have the kids home, that you and your partner, who is here to support you in court today, are now in accommodation in East Melbourne, and it is hopeful that the two of you will have a house in Collingwood within the next shorter period of time.  That gives me confidence that you would be able to continue your rehabilitation.  You will have the stable relationship, you will have stable accommodation and you will have the responsibility of your children to assist you in that.  It seems to me that when one goes through the background of both yourself and Jule with the difficulties as described in those psychological reports, that general deterrence is of no import in this matter, specific deterrence is debatable, and I think anyone who understood your background would say that denunciation has got very little to do with it.  So it really comes down to punishment and whatever we can do to try and - to:  (1) protect the community from what the two of you do get up to, but also give each of you a chance to try and get your lives on track, or in your situation, Brian, keep it on track.

13In your situation, Brian, I have a letter from Lou Gardiner, who is known to me.  He is an Aboriginal alcohol worker at the western metropolitan region in Northcote.  He said that he has been dealing with you now since August and has been talking to you every two or three weeks.  Importantly, bearing in mind your past, and I do not have to go through that in detail, you have been pretty active lately, he said.  You have been going to your own appointments and been productive during your talks.  You have been talking to him weekly.  He says you have taken back control of your own life and you are connecting back into community and your Aboriginal culture.  I am aware that you do have a real connection with Aboriginal culture and that you have been trying to get that part of your life together now for quite some time.  Again, anyone with a genuine interest can read the report and it simply speaks for itself, where I, as I say, I do not need to go into it in any more detail.  I am taking into account all the matters that are contained within it.

14You, Jule, obviously have a virtually identical background.  You were brought up in the same sets of units and residential care and foster parents and all that sort of thing, as your brothers were, as is again, obviously, as with Brian, your brother, Troy, is now deceased.  Your mother, when she passed some years ago, was a circumstance that caused you real difficulty.  She passed away when you were about 14.  Your older brother passed away in about 2020.  As with Brian, you witnessed adult substance abuse, regular family violence.  You yourself were subject to family violence, as was Brian.  You have been diagnosed with an intellectual disability since your age of 10, and again, you were removed from your parents.  You have two sons, one being born when you yourself were only 15 years of age.  You have been to many schools.  You have got no real idea how far you went in school.  You cannot effectively read or write and when at large you tend to wander and when in custody you get absolutely nowhere.

15It is reported that for both of you in that report and also Dr March's report from earlier on, that you suffer from chronic substance abuse disorder, alcohol use disorder, major depressive disorder, intellectual disability, significant trauma history, likely anxiety disorder and, as I have already said, cognitive impairment.

16I do not need to go through the Justice plan.  That has been tendered already I think, from memory, but this is just a very state of affairs indeed.  It seems to me that in these circumstances to impose a custodial sentence so long after the event, and in your case, Brian, where you have done your best, and in your case, Jule, where you have done effectively about three years that could have been part of a sentence, I think it would be unjust to incarcerate either of you.  That may be seen to be lenient by some but I think everyone in this courtroom, with respect, I am not trying to verbal anybody, understands exactly what I am saying.  There comes a time when young Aboriginal men in your situation have to be given the recognition of what this community has done to them over an extended period of time and I am certainly doing that.  So I take all those matters into account.

17A CCO I am not going to have you assessed for because I think they would reject both of you anyway.  I would not do a community corrections order just with hours because I suspect that that would cause just as many problems.  Your counsel, Brian, Mr Thyssen, suggested an adjourned disposition, and I, having given it serious thought and I understand the nature of that disposition, I think this is a matter which calls for one for each of you.  You, Jules, have already done the time in gaol and you have got that other time.  You, Brian, are connecting and connecting well and I see no point in disrupting that and possibly destroying it with the dreadful consequences that would have for each of you and, indeed, your children.  So in respect to these matters, if you agree, and you might need to explain this, I do not know, if you agree, Brian, you will be on an adjourned disposition, which is like a good behaviour bond, all right, for three years.  It will be with conviction.

18What you need to understand, Brian, you have done well, all right, and we all understand that, and Mr Thyssen, we have known each other for a long time, he said you are doing well and I will accept that from him.  Same as you, Jule, from Mr Lavery, who would know well as well.  If you get pinched for something like this and get brought back I have to re-sentence you, all right.  What happened was not very good, it was not a joke, it could have got right out of hand, all right.  So if you do, do something like this again and get brought back before me I have got to re-sentence you for this one as well, all right, assuming it is me that is here.  You are going to get, if you get brought back for something like this you are going in, all right.  There is going to be nothing any judge can do about it I suspect.  There comes a time when community protection takes over but this is a real chance to continue with what you have been doing so well still as a young fellow for now, of some four and a half years.

19In your situation, Jule, it will be the same effectively good behaviour bond, disposition with conviction.  What I will do in your situation is that you have roughly three years of Renzella time and you also have 70 days pre-sentence detention.  I am not going to sentence you to be imprisoned, and counsel can make a note of this, that pre-sentence detention can remain there in case he breaches, if and when, the adjourned disposition that can be taken into account then.  In this situation for the two various reasons I see no reason in differentiating between them on this sentence and in Jule, I think, has a better chance of making a mess of it than Brian is, at least he has got that sitting there.  So that is the practical way I am going about it, gents.  I do not think I can explain it in any other way.

20So do you understand, Jule, right, now listen to me, mate.  I know you get confused and you get things mixed up, all right, but if you get brought back before me for flogging people I am going to have to put you back in.  You follow that, mate?

21OFFENDER J. HAYES:  Yes, Your Honour.

22HIS HONOUR:  You follow that, mate?

23OFFENDER J. HAYES:  Yeah.

24HIS HONOUR:  Yes, you are sure?

25OFFENDER J. HAYES:  Yes, Your Honour.

26HIS HONOUR:  All right.  I know you struggle and how hard it is for you.

27OFFENDER J. HAYES:  Yeah.

28HIS HONOUR:  But you just cannot go around flogging people, brother,
all right?

29OFFENDER J. HAYES:  Yeah.