Director of Public Prosecutions v Hayes

[2021] VCC 744

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-20-01130; CR-20-01226;
CR-20-01227; CR-21-00514;
CR-21-01085

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN HAYES

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2021
DATE OF SENTENCE:	4 June 2021
CASE MAY BE CITED AS:	DPP v Hayes
MEDIUM NEUTRAL CITATION:	[2021] VCC 744

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW – Sentence.

Catchwords:             Plea of Guilty - Contravene Family Violence Intervention Order Intending to Cause Harm or Fear for Safety – Persistent Contravention of a Family Violence Intervention Order – Attempt to Pervert the Course of Justice – Stalking – Aboriginal Offender – Prior Criminal History – Mental Health.

Cases Cited:            Bugmy v The Queen [2013] HCA 37.

Sentence: 656 days imprisonment in combination with a Community Corrections Order of 18 months' duration. 

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr S. Lee	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Kurnai Legal Practice

HIS HONOUR:

1Allan Hayes, you have pleaded guilty to three charges of contravening family violence intervention order intending to cause harm or fear for safety, four charges of persistent contravention of a family violence intervention order, one charge of attempting to pervert the course of justice and one charge of stalking. You have also pleaded guilty to a relevant summary offence of unlawful assault. 

2These are serious charges.  They reveal a series of events and a course of conduct that is deeply concerning and troubling for the community.  The seriousness of the offences is reflected in the maximum penalty. The maximum penalty for contravening a family violence order is two years' imprisonment, the maximum for persistent contravention is five years’, the maximum penalty for attempting to pervert the course of justice is 25 years’, the maximum penalty for stalking is 10 years’, and for the relevant summary offence, unlawful assault, three months’.

3You have a criminal record which discloses a history of contravening family violence intervention orders and also assaults.  It is an eight-year history that demonstrates your propensity to breach orders and engage in family violence repeatedly. 

Circumstances of Offending

4The circumstances of the offending are set out in the summary of prosecution opening which was Exhibit A on your plea.  I will not repeat the contents of that lengthy prosecution opening which sets out in detail the circumstances of your offending.

5In brief terms, in September 2017, two full and final intervention orders were made at the Bairnsdale Magistrates' Court against you.  The protected persons were the complainant, Simona Wheatly[1], and her mother, Rosa Wheatly[2].  In January 2019, you contacted the complainant, wanting to resume the relationship.  You became argumentative over the next few months and verbally abusive towards the complainant.  That behaviour escalated to serious threats towards her and she was becoming increasingly fearful of you.  That covers Charge 1.

[1] A pseudonym.

[2] A pseudonym.

6On 18 August 2019, when she was asleep in her bedroom, a neighbour heard an argument and heard the complainant say to you, 'Get out of my house you dog’.  While she was trying to make a phone call, you held the phone out of her reach and then stood on her ankle, causing her to fall to a mattress on the floor.  That is the related summary offence of unlawful assault.

7The complainant contacted the police.  Later that night, she contacted them again, fearing that you were still in the vicinity.  Police attended and, at that time, you had telephoned the complainant.  You were arrested and charged with persistent contravention and that refers to Charge 2.

8You were remanded in custody on 19 August 2019 and have remained there since then.

9On 4 October 2019, a final intervention order was served on you - the complainant being the protected person. The conditions of the order were that you be prohibited from committing family violence against her, damaging her property, attempting to locate or follow her, publishing material about her, contacting or communicating with her, approaching within five metres of her home or having anyone else do those things on your behalf. 

10Between 6 November 2019 and 24 November 2019, you made repeated contact with her, the details of which are set out in the summary of prosecution opening.  The contact was via telephone from prison and was recorded, a fact which, of course, would have been known to you.  You also sent a letter to the complainant on 10 November 2019.  You were interviewed by police in prison on 24 December 2019. 

11Nevertheless, there were further breaches by you of the intervention order between 12 December 2019 and 11 March 2020 by the same means. The details are set out in the prosecution opening where the conversations that you engaged in are summarised. You used outside contacts to obtain the complainant's phone number and then conference calls were arranged with other parties. 

12In relation to the attempting to pervert the course of justice, you told the victim directly on occasions that she should not go to court.  You also arranged for other people to communicate that message to her.  That constitutes the charge of attempting to pervert the course of justice, but also forms part of Charge 6, persistent contravention of family violence intervention order.  The complainant had to change her phone number on several occasions.  You would contact friends and family to obtain those changed details. 

13Further breaches occurred between 26 July 2020 and 24 August 2020, representing Charge 7, the details of which are set out in the summary of prosecution opening.  Again, between 14 and 16 January 2021, which represents Charge 9 and the details of those conversations are set out in the prosecution opening. 

Gravity of Offending

14The objective gravity of your offending is reflected in the course of conduct you engaged in over time. The fact that you were not deterred even by intervention of the police and, more concerning, you were not deterred by the fact that you were in custody. You knew very well that what you were doing was in contravention. Further, whilst in custody, you engaged in the serious offence of attempting to pervert the course of justice. 

15The length of time over which you offended is a serious aspect of the offending to which I have had regard. It was submitted that you were foolish, indeed stupid, to engage in a substantial part of this conduct whilst in custody knowing full well that your conversations were recorded. That is so, but that fact also demonstrates the level of risk you pose and the fact that you were not deterred by being in custody. 

16Your counsel pointed out that, aside from the unlawful assault and the circumstances of that, these were not episodes where physical violence was engaged in.  The victim impact statement that was filed I have read and have had regard to its contents and considered it in determining the sentence in this matter. 

Personal Circumstances

17In relation to your personal circumstances, I have already mentioned that your criminal history is reflective of someone who cannot manage his emotions and impulses in a relationship setting.  This is not to understate your criminality at all.  Your resort to threats and intimidating conduct, indeed violence, is typical of the family violence that is abhorred by right thinking members of the community and impacts victims in a devastating and often lifelong way.  Those impacts flow through the community in a ripple effect.  Not just the victim, but other members of the family and other members of the community are affected in turn. 

18You are 34 years of age; the second of four children. Your heritage is Aboriginal heritage from the Kurnai group. You grew up in Bairnsdale. I was told that you had difficulties reading and writing at school.  Your schooling went up to the first term of year 9. You were exposed to domestic violence in the home from a young age. Your older brother would lock the children in a room when domestic violence was occurring between your parents.  I was told that you were kicked out of home at the age of 15 and you moved in with your girlfriend at the time, Kristy.

19

You have worked in manual labour, labouring jobs, factory work, gardening and farming.  You completed a horticulture certificate in 2013 when working with the Gippsland Shire Council.  You last worked in 2015 with Kurnai Land and Water.  I was also told that 2016 was a difficult year for you and I accepted that was so.  Your father, to whom you were close, passed away and a cousin suicided. These losses in these circumstances had a significant impact upon you. I was told that you had engaged in relatively steady employment until around

mid-2015. 

20You commenced using cannabis at age 14 and that habit continued on a daily basis.  Your daily habit increased to smoking three grams a day, but that increased to seven grams daily in 2015 with what you have described as the loss of family, loss of job, and loss of house.  Methamphetamine became a problem in 2016 and, on your report, you engaged in use with the complainant in this matter.  You began drinking at 15 years of age, binge drinking on weekends, increasing over the years to a bottle of spirits every two days.  You have stated that you would drink every day, smoke cannabis and later ice as well. 

Psychological and Supporting Material

21A report from Carla Lechner was relied upon on your plea.  I accept the contents of that report and her opinion.  She stated that you have developed symptoms of major depressive disorder to which you have responded with increased use of drugs and alcohol, leading to disinhibited behaviour.  You have expressed regret for your actions.  She stated that you are currently reporting symptoms of likely severe mental disorder, extreme depression and severe anxiety.  You see yourself as very psychologically unwell and you are in need of treatment services.  She also opined that she had concerns about you being incarcerated for a lengthy time in light of your mental health and lack of access to treatment, especially in the light of COVID-19 restrictions.

22I received a Forensicare Mental Health Advice and Response Service report, authored by senior psychiatric nurse Hannah Child, which provided helpful insight in relation to you and your mental health.

Matters in Mitigation

23In a thorough plea on your behalf, Mr Desmond made a number of submissions in mitigation which I accept, including the significant utilitarian value of your guilty plea.  Given the state of trial lists at present, there is a significant discount that is available to you due to the utilitarian value of your plea.  He also submitted that your plea represents and is consistent with genuine remorse.  I accept that it is reflective of some contrition.  More importantly, it does represent a positive step in you taking responsibility for your crimes and the impact upon your victim and it enables me to hold out not unrealistic hopes for your rehabilitation. 

24I have also had regard to your background.  Mr Desmond made submissions which align with the principle known as the Bugmy principle.[3] I am satisfied that your exposure to family violence from a young age and also drugs and alcohol from a relatively young age are factors beyond your control that have contributed to your make-up and your responses in particular situations, in combination, of course, with your psychological drivers and make-up as referred to by Ms Lechner. 

[3]Bugmy v The Queen [2013] HCA 37.

25

It is relevant that those factors, as described in the materials and set out by

Mr Desmond, sit in the context of your Aboriginality and background in the community you grew up in which, necessarily, of course, is connected to a long history of dispossession and discrimination.  I take those matters into account.

26Totality is an important consideration in your case.  Notwithstanding, the indictment is drafted in an appropriate manner to reflect your criminality and the separate and distinct instances of it, there is clearly some overlap in relation to the nature of the conduct and the ongoing aspect of it.

27In relation to prospects of rehabilitation, it was submitted that you are able to turn your life around, that you have expressed remorse to Ms Lechner and, consistent with your remorse, you pled guilty, that you are drug free currently and that you have expressed an openness and, indeed, an intention to engage with rehabilitative programs once you are released. 

28In particular, I was impressed when you addressed me, which was unprompted, in relation to your interest in attending either the Wulgunggo Ngalu program or the Dardi Munwurro program upon release.  Whilst I will not make those specific parts of my order, I encourage you to pursue those programs.

29Your period of imprisonment has been significant to date - 22 months or thereabouts on remand. That has been, for the most part, during the pandemic, which has placed significant restrictions on the prison experience but, in particular, restrictions on face-to-face family and friends' visits.  Also, restrictions on being able to mix with other prisoners, increased lockdown time in cell, reduced ability to participate in programs and recreations and, as I have said, for the substantial part of your time on remand, that has been your experience and I have taken that matter into account. 

30I also have regard to the range for the offences before me and, in particular, the appropriate characterisation of your offending in the context of those particular offences.  I have had regard to general deterrence and the significance of general deterrence for offences of this nature and also denunciation.  It is important that I impose a sentence that expresses the community's denunciation of offending of this nature.  Specific deterrence is also a significant factor in your case. 

31When I have regard to those factors and, indeed, taking into account your prospects of rehabilitation and the Community Corrections Assessment report, I am satisfied that it is appropriate to release you on a Community Corrections Order, that order being substantially, but not entirely, aimed at supervision and rehabilitation of you in the community. 

Sentence

32I will sentence you as follows, Mr Hayes, and I am going to impose an aggregate sentence due to the connection between all the charges on the indictment; the indictment effectively representing a course of conduct and series of offending in different ways but with an underlying unity. 

33In relation to the nine charges on Indictment L10919702.1 and the relevant summary offence of unlawful assault, I sentence you to be imprisoned for 656 days in combination with a Community Corrections Order of 18 months' duration. 

34I declare that you have served 656 days as pre-sentence detention. 

35The special conditions of the Community Corrections Order are that you perform 60 hours of community work and that you attend for drug assessment and treatment as directed. 

36I impose the recommended mental health condition with reference to the Forensicare screen, a condition that you engage in the men's behavioural change program and, as part of that condition, I note without being able to make a specific  condition, that if available, the Wulgunggo Ngalu program or Dardi Munwurro program is also recommended. 

37I think I have said you are subject to supervision. 

38Up to 50 hours of treatment programs can be credited towards your work hours.

39Were it not for your pleas of guilty in this matter, Mr Hayes, I would have sentenced you to a total effective sentence of four years and three months’ with a non-parole period of two years and nine months’. 

40HIS HONOUR:  Now, are there any other orders sought?  There's no other outstanding orders?  There's no forfeiture or anything like that, is there, in this?

41MR LEE:  No. 

42HIS HONOUR:  All right.  Does that make sense, Mr Desmond?

43MR DESMOND:  Yes, thank you, Your Honour. 

44HIS HONOUR:  All right, Mr Hayes, you consent to the Corrections Order?

45OFFENDER:  Yes, um, Your Honour.

46HIS HONOUR:  All right.  So that will have to be sent to you for your signature but your oral consent is sufficient for these purposes and they will become part of the order - that's the order you're on.  It means you're eligible for release today and then you'll have to communicate with Corrections and you'll have to sign the order, I expect, before you're released. 

47The order itself is substantially aimed at your rehabilitation, Mr Hayes.  There are community work hours because, notwithstanding that Mr Desmond submitted on your behalf that your criminality could really be met by the time already served,  I was not entirely satisfied of that.  There is a punitive aspect in those work hours but it's an order that's aimed at your rehabilitation in the community.  Now, 50 hours of treatment can be credited towards those work hours which really only leaves about 10 hours over 18 months if you do 50 hours of treatment.  So, the expectations in terms of work hours aren't overwhelming.  But it's something that I think is necessary just to remind you that you have offended in an unacceptable way and it's just got to stop. 

48You've got to now try and move forward in your life and do what you want to do.  In particular, you've expressed wanting to connect with your children and be a better example for them, so now you get that opportunity. If you can engage with some cultural programs, and it's an extra purpose and meaning in your life, then all the better.   

49So, I wish you all the best on your Corrections Order.  If you breach it, I'll hear about it.  You'll be back before me and I'll have to resentence you.  I can tell you now, if that breach involved any violence or contact with people you shouldn't be contacting or intimidation, the consequences for you would be fairly serious.  All right, do you understand all that, Mr Hayes?

50OFFENDER:  Yes, I do, Your Honour.  I understand. 

51HIS HONOUR:  All right, thank you.  Thank you, Mr Desmond.

52MR DESMOND:  Thank you, Your Honour.

53HIS HONOUR:  And, Mr Lee, thank you. 

54MR LEE:  Thank you, Your Honour.

55HIS HONOUR:  We'll adjourn the court. 

56MR LEE:  If the court pleases. 

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