Director of Public Prosecutions v Hayward

[2020] VCC 220

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00434

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY HAYWARD

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2019
DATE OF SENTENCE:	5 March 2020
CASE MAY BE CITED AS:	DPP v Hayward
MEDIUM NEUTRAL CITATION:	[2020] VCC 220

REASONS FOR SENTENCE
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Subject: Criminal Law

Catchwords: Aggravated burglary, make threat to kill, false imprisonment, common assault

Legislation Cited: s.14 of the Sentencing Act (Vic).

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120, R v Verdins (2007) 16 VR 269.

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy (For Plea) Mr R. Casey (For Sentence)	Office of Public Prosecutions
For the Accused	Mr A. Pyne	Sullivan Braham Barristers & Solicitors

HER HONOUR: 

1Ricky Hayward, you were found guilty by jury verdict of four charges. 
The offending occurred on two occasions.  The offence of common assault occurred on 2 June 2017 (Charge 1). The offence of aggravated burglary (Charge 2), making a threat to kill (Charge 4) and false imprisonment (Charge 5) occurred on 8 June 2017.  You were acquitted of one charge of common assault alleged on 8 June 2017 (Charge 3).

2An associated summary offence of contravening a family violence intervention order on 8 June 2017 has been transferred to the County Court and you have pleaded guilty to that charge.

3The victim is your former partner.  She was 24 years of age at the time of these offences.  You had been in a relationship with her for approximately four and a half years.  There are two children of that relationship, a son born in
October 2013 and a daughter born in February 2017.

4There was evidence before they jury that in the course of the relationship, on occasion, you were violent towards the victim.  You damaged her property and became jealous if she spent time with other people.

5In June 2016, the victim ended the relationship and obtained a limited intervention order where you were the respondent.  Despite the order, you continued to act violently towards her and damage her property.  You would go to her house and would refuse to leave.  The jury was aware that the family violence intervention order was extended to a full order, with exceptions to allow for child contact, on 22 September 2016.  The victim moved from Bairnsdale to Delacombe in order to create distance between where you both lived.  You did not have any contact with each other for approximately three months after that, until your daughter was born.

6You were resistant to the victim ending the relationship.  She told you that she was seeing someone else and had “moved on” in the hope that you would realise that the relationship was over.

7On Thursday 1 June 2017, you brought your son back to his mother, after an arranged access visit.  You stayed overnight and were supposed to leave the following day.  In the evening on Friday 2 June 2017, you discussed the state of your relationship with the victim.  In the course of that conversation,
she described you as “having that look on your face”.  She feared that something was about to happen, so ran towards the kitchen.  You chased after her, grabbing her by the arms and flinging her to the ground.  As you did this, her right foot hit a metal chair which caused her extreme pain.  You then dragged her up the hallway, hitting and choking her.  In her evidence, the victim said that there were lots of “hits” to her head and that you were choking her so much that she could not breathe. (Charge 1)

8In order to appease you, she told you that she had not moved on and that she had been making it up.  She said that she wanted to be with you and to work things out.  You stopped assaulting her.  The victim suffered bruising from your conduct.  At the time of this assault, the intervention order was in place.  It did not deter you from attending the victim's premises or acting violently towards her.  You eventually left the victim's home on Tuesday 6 June 2017.

9After you left, the victim spoke to you and said that she did not want you to come back.  She said that she had enough of being hit.  She sent you a text message at 2.56 pm on 7 June 2017, saying “Fuck off, stop texting and calling me”.  At 4.07 pm on that day, you purchased a train ticket to return from Bairnsdale to Ballarat via Melbourne.  The victim was unaware of this. 
The victim gave evidence that when you got home to Bairnsdale at around 5 o'clock, you sent her two text messages and called her, leaving voice mail messages.  She agreed that she responded to the text messages.  In her evidence, she did not agree that she invited you to return that evening.

10On Wednesday 7 June 2017, the victim was at home with the two children. 
She woke up at around 1 am on Thursday 8 June 2017 to feed the baby. 
She heard a knock on the window, walked to the dining area and heard the window smash.  You entered through the window and chased her to the lounge room.  She said that once she recognised you, she crouched down and started crying. (Charge 2)  You confronted her, asking whether it was true that she had moved on.  You pulled a knife and a child's wooden screwdriver from your pocket, pointing them at her and said that you were going to kill her. (Charge 4) She told you that she had made up that she was seeing someone else.  She said she felt that you would have killed her if she did not say that.

11The victim had an anxiety attack that lasted for about two hours.  She went to the front door and tried to open it until you stopped her.  On more than one occasion, you yelled at her to go into the lounge room.  You said that you would not allow her to run outside as you were not going to get locked up.  You took her mobile phone and told her to stay in the loungeroom.  She was unable to leave the house between 1 am and 4.30 am.  You deprived her of her liberty by making threats and by your intimidating conduct.  She was too scared to leave as she believed that you would come after her. (Charge 5)

12Eventually you fell asleep.  The victim was exhausted and also fell asleep, waking up at about 7.30 am.  She then used your phone to send a text message to her mother, stating that you had broken in and asking her to contact the police.  The victim deleted the text message and laid down in wait as you continued to sleep.  She was scared when you were there.

13As a result of the text message, her mother phoned 000.  The police attended at approximately 8.30 am and you were arrested.  You were taken to the Ballarat police station where a record of interview was conducted.

14You admitted that by attending the victim's home, you breached the family violence intervention order that was imposed on 22 September 2016. (Summary offence) You denied committing the offences that were the subject of the trial.  You were charged by police and remanded in custody.

15Your case proceeded as a contested committal at the Ballarat Magistrates' Court on Tuesday 27 February 2018.  The victim was called to give evidence at that hearing.  You were committed to stand trial, commencing on Wednesday 30 October 2019.  You pleaded not guilty to the offences.  A number of witnesses were called by the prosecution, including the victim.  Her evidence was challenged in the course of the hearing.  You did not give evidence but your record of interview was played.  Your defence at trial was that the offending did not occur.

16On Wednesday 6 November 2019, the jury, by its verdict, rejected your defence.  You were found guilty of four charges on the indictment.

17A victim impact statement has not been provided.  There is no information about any residual difficulties that your conduct has caused.  Despite this, I am satisfied that this is a serious example of offending in a family violence context.  I accept that the victim must have been in real fear for her life.  You smashed through a window in the middle of the night and entered her home.  You intended to assault her.  You threatened to kill her when you were armed with weapons.  You would now allow her to leave.  These acts occurred in the context of a relationship of abusive family violence and less than one week after you had violently assaulted the victim.  It must have been a terrifying experience.

18I accept that the victim was extremely scared the entire time you were in the house and that she believed, at least, that you would cause her serious harm.  Your conduct was violent, threatening and intimidating over a number of hours.  You showed a blatant disregard for the intervention order and for the welfare of the mother of your children.  The fact that your children were presented in the house at the time is an aggravating feature of your conduct.

19You have denied your offending since the matters were first raised on 8 June 2017.  You ran a trial and are not to be penalised for that.  In those circumstances however, there is no acceptance of responsibility for your violent conduct and I am unable to conclude that you have shown any remorse.

20At the time of these incidents, you were 22 and you are now 24 years old. 
In light of the seriousness of these offences and your criminal history, the mitigating effect of age and your relative youth is reduced although not extinguished.  These factors are still relevant when considering your prospects of rehabilitation.

21You are an Aboriginal man who was raised in Lakes Entrance by your parents.  You are the youngest of three children.  You grew up in an environment of significant social deprivation and disadvantage.  There was a lack of stability in your home life.  You recall frequent incidents of domestic violence at home towards your mother, inflicted by your father.  Your father drank to excess and was also a drug user.  He was sentenced to three terms of imprisonment when you were young.

22At the request of your solicitor, a report has been prepared for the court by Debra Smith, psychologist, dated 6 February 2020.  This was tendered without objection.  You told Ms Smith that you are still scared of your father. 
Your childhood memories include a number if traumatic incidents.  Your mother would often take you and your siblings to you grandparents' home to seek refuge from your father and his conduct.  You recall living there for some time when you were 10 years old, after your father assaulted your mother by throwing her through a window.  From the age of 13 years, you resided permanently with your grandparents.

23Your grandmother provided you with a sense of safety and security.  She died eight years ago.  Her death coincides with the start of your involvement in the criminal justice system.

24Your parents' relationship has now improved and you have their support. 
You will return to live with them upon your release.  They were present in the course of your trial.  A number of family members also attended the plea hearing. 

25As a young boy, you were reluctant to go to school.  You did not want to leave your mother.  You were concerned for her safety.  You also found it difficult to concentrate, as you were often tired due to your disruptive home life. 
You struggled at school and are functionally illiterate.  Although you were provided with teaching aides throughout your schooling at Lakes Entrance Primary School and Lakes Entrance Secondary College, you were often absent from school and felt ashamed of your learning difficulties.  You left school during Year 8.

26The most significant progress you have made with your literacy and numeracy has been while you have been in custody.

27You were exposed to excessive alcohol use as a child.  You started to use alcohol and other substances at the age of 13 years.  You have abused alcohol since that time.  There is a nexus between your consistent consumption of alcohol and your history of criminal conduct.  You started to use illicit substances in approximate 2010.  When you were 18 or 19 years old, you were addicted to gambling, although recently, this has not been an issue.

28I accept that your childhood exposure to excessive alcohol and drug use and violence reflects a background of considerable social deprivation. 
The relevance of such deprivation does not diminish over time, notwithstanding your prior convictions.

29The prosecution agree with your counsel's submission that the principles of Bugmyv The Queen[1] are enlivened in your case and that this is a mitigating factor on your plea.  I accept that your moral culpability is reduced.

[1] (2013) 249 CLR 571.

30You have a number of prior convictions for offences of violence that have been dealt with in both the Children's Court and in the adult jurisdiction.  This is not the first time you have been incarcerated.  You have served a lengthy period of youth detention as well as a term of imprisonment in the past.  At the Bairnsdale Magistrates' Court on 10 September 2014, you were found guilty of a number of offences, including offences committed against the victim of recklessly causing injury, threatening to inflict serious injury and unlawful assault.  These offences occurred on 13 February 2013 when she was at home with your son who was then two months old.  You were sentenced to a term of imprisonment.

31You are now in custody at the Fulham Correctional Centre.  You were remanded upon your arrest in June 2017.  You have had occasional visits from family members.  You have not had any contact with your children.

32Whilst in custody, you have participated in educational programs to improve your literacy and numeracy, vocational training as well as counselling to address your alcohol addiction and drug use.

33On 13 December 2018, you were sentenced in the County Court to a total of four years' imprisonment with a non-parole period of two years for the offences of intentionally causing injury and armed robbery.  I have been provided with and read the sentencing remarks of His Honour Judge Smallwood. 
These offences were committed approximately two weeks prior to the current incident, although you were not charged until after your arrest on 8 June 2017. This offending is unrelated to the current matters.  Your current earliest release date if eligible for parole is on 30 May 2020. 

34Your prospects for rehabilitation at this stage are guarded.  I am aware that when you were released on Youth Parole in around 2015, you were able to comply with that in full.  You obtained employment as an apprentice painter and you were able to make use of services provide in the course of your parole. You fell back into a life of instability with unstable housing and substance abuse upon the completion of parole.  In 2017, you attempted suicide, requiring hospitalisation. You have not had employment since the expiration of parole.  Your goal upon your release is to find employment as a gardener, painter or a builder.

35You acknowledge your past pattern of criminal behaviour and your disadvantaged background.  Clearly your capacity to successfully reintegrate into the community requires the involvement of a significant level of structured support.

36Whilst the principle of rehabilitation may no longer be the prime sentencing consideration in light of your criminal history, it still remains one of relevance.  Professional intervention is a critical element in your rehabilitation, if it is to be successful.  Supervision provided by parole will form part of this sentence.

37Mr David Ball, forensic psychologist, undertook a psychological assessment and prepared a report for the County Court in 2014.  You were 19 years old at the time.  He described you as an immature and low functioning man with limited capacity to exercise good judgment.  This report was tendered without objection.

38When undertaking a mental state examination, he found that there was evidence of frank mental illness or thought disorder.  He stated that there was no evidence of cognitive impairment in clinical interview, not better accounted for by your moderately reduced intellect.  He undertook intelligence testing. 
The results reflected that you have a generally impaired IQ falling in the moderately disabled range.  Your full scale IQ fell at the first percentile, meaning that 99 per cent of the population would perform better on tests than you did.  He assessed you has having an IQ of 53.

39In terms of intellectual impairment, Mr Ball described that you present as illiterate, innumerate and as a generally low functioning adult.  In his opinion, your impairment is congenital rather than acquired.  Your intellectual impairment has been and will continue to be lifelong.  It will not remit.

40In the more recent report of Ms Smith, to which I have already referred, she refers to Mr Ball's diagnosis of your having an intellectual disability and states that your presentation at assessment supports that diagnosis. Your engagement with her was consistent with someone who has a low level intellectual functioning.  Your lack of literacy and numeracy skills made it difficult for you to undertake testing to confirm your intellectual capacity.

41In Ms Smith's opinion, it is appropriate to assume that your intellectual capacity is still in the range of a significant intellectual disability.  She agrees with Mr Ball that your intellectual disability has been present since birth. 

42She described your history of alcohol abuse.  You started to use marijuana at the age of 14.  You used methylamphetamine in the years prior to your incarceration.  You are currently on the methadone program whilst in custody, in receipt of 30 milligrams daily.

43Ms Smith believes that you have significant difficulties of executive function which are consistent with your assessed very low average cognitive abilities.  You have a limited capacity for problem solving, decision making, planning and clear thinking.  In her view, life poses more challenges for you than most others, as you do not have any degree of complex problem solving skills.  In Ms Smith's view, you will require significant support in order to achieve your goal of a life without alcohol and drug abuse.  She states that you showed some insight into needing to change, although you are unsure how to do this.  You indicate that you are prepared to seek help to do so when you are released from custody.

44Your counsel submitted that the principles in Muldrock v The Queen[2] are applicable in your case as they apply to intellectual disabled offenders.  At paragraph 54 of the decision, the Court provides authority supporting your counsel's submission:

The principle is well recognised.  It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap.  A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence.  Such a question is less likely to arise in sentencing a mentally retarded offender because of the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offenders' moral culpability for the offence.  The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally regarded offender and to the needs of the community.[3]

[2] (2011) 244 CLR 120.

[3] Ibid 139 [54].

45The prosecution do not accept this submission, saying that the principles in R v Verdins[4] apply to the question of whether your cognitive impairment should mitigate your sentence for the current offences.  The prosecution contends that in the absence of any direct evidentiary basis, there is no link between your intellectual impairment and the current offending.  The prosecution submit that neither medical report provides evidence that your cognitive deficits had a realistic connection to any of the offending that is before the court.

[4] (2007) 16 VR 269.

46Further, that the expert evidence does not establish that there was any connection between your mental impairment and the numerous decisions you made when committing the violent offences against the victim on 2 and 8 June 2017.  The prosecution submission is that the principles of deterrence as well as your moral culpability should not be moderated.

47In her oral submissions, the prosecutor submitted that the principle of general deterrence “looms large” in your sentence.  In written submissions, it was proposed that even if the full application of the principles of general deterrence were to be moderated by your condition, the moderation should be only slight.

48This is not a case where a specific psychiatric illness has a causal link to you and your offending.  In my view, a reduced capacity to reason as to the wrongfulness of your conduct does lessen your moral culpability.  Where a person has a significant cognitive impairment, a relationship between that and that the offending, due to a reduced capacity to reason may, within itself, lessen moral culpability.  Mr Ball found that your generally impaired IQ fell within the moderately disabled range.  Ms Smith confirmed that you have an intellectual disability.

49It is clear that you encountered really significant deprivation during your early life.  This, combined with your intellectual disability, operates in my view to moderate you moral culpability in relation to this offending.  This is no dispute that you have a low intellectual function that with an ongoing impairment or that your IQ falls within the first percentile.  This evidence was not challenged. 
I am satisfied that the principle of general deterrence should be moderated in light of your lifelong affliction.

50Your counsel submits that the burden of imprisonment will be more onerous for you in light of your intellectual impairment in combination with your lack of literacy.  The prosecution agree that this is so, to a limited degree. I accept that due to these factors, you will encounter an increased level of hardship whilst in custody.

51You are to be sentenced as a serious violent offender for the offence of making a threat to kill, as you were sentenced to a period of youth detention on
12 December 2014 for intentionally causing serious injury.  There is a presumption of cumulation of sentence, as community protection is the predominant sentencing consideration.  The prosecution, however, do not seek a disproportionate sentence be imposed.

52I take into account the maximum penalty for these offences.  I have read the cases to which I was referred to by the prosecution.  I have considered them and current sentencing practices when determining sentence.  You concede that a term of imprisonment is the only appropriate disposition for all of these offences.  The principle of totality needs to be considered in light of this being a course of criminal conduct.  I have taken case not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.  I have decided that there must be some but not total cumulation.

53The principle of totality is also relevant as you are currently undergoing the four year sentence imposed on 13 December 2018.  I am required, pursuant to
s.14 of the Sentencing Act, to fix a new non-parole period.  I must consider the total sentence that would have been imposed had all the offences been dealt with at the same time. 

54In my view, the principle of general deterrence should be moderated significantly in sentencing here. As outlined in Muldrock,[5] the community would not expect the principles of punishment and denunciation to carry the same weight for a mentally disabled offender as they would in the case of a person of ordinary capacity. This is counter balanced by the principle of community protection, including the protection of your former partner and your children.  It remains a highly relevant sentencing consideration.  Your partner was vulnerable and should have been safe in her own home.

[5]Muldrock v The Queen (2011) 244 CLR 120.

55It is conceded that the principle of specific deterrence is also relevant. 
This incident occurred in breach of an intervention order, in the context of previous incidents of violence.  You have shown no remorse for your offending, although you do admit breaching the intervention order by attending at the victim's home.

56Your prospects for rehabilitation are guarded at best.  They are largely dependent on your capacity to access and engage in appropriate treatment.  Should you fail to do this, your future prospects are likely to be bleak.

57Balancing these factors as best I can for the current offences, I sentence you as follows:   

·Charge 2 - Aggravated burglary, you are convicted and sentenced to six years' imprisonment. 

·Charge 4 - Threat to kill, you are convicted and sentenced to 12 months' imprisonment. 

·Charge 5 - False imprisonment, you are convicted and sentenced to 12 months' imprisonment. 

·Charge 1 - Common assault, you are convicted and sentenced to
15 months' imprisonment.  For the summary offence: Breach of the intervention order, you are convicted and sentenced to four months' imprisonment.

58I direct that charge 2, six years be the base sentence.  Three months from Charge 4 and three months from Charge 1 are to be cumulative upon the base sentence and upon each other. 

59The sentences for Charge 5 and for the breach of intervention are to be concurrent.

60That is a total effective sentence of six years and six months.

61I direct that three years and nine months of this sentence be served cumulatively upon the sentence imposed on 13 December 2018, which you are currently undergoing.  That results in a new head sentence of seven years and nine months.  I set a new single non-parole period of five years and six months' imprisonment, commencing on 13 December 2018.

62I declare pre-sentence detention of 357 days for the sentence that I have imposed for the current indictment. 

63To avoid any doubt, I confirm the earlier pre-sentence detention of 196 days as previously declared, on 13 December 2018. Further, I confirm that you have served 448 days' imprisonment since you were sentenced on 13 December 2018.

64You have been sentenced as a serious violent offender for
Charge 4.

65The declaration that I make under s.6AAA, for the charge of breach of intervention order, is six months.  I make orders for forfeiture and disposal as required.

66Mr Casey, is there anything further?

67MR CASEY:  No, Your Honour.

68HER HONOUR:  Mr Pyne?

69MR PYNE:  No, Your Honour.  I can't see anything that's of any issue.  I've got everything down.

70HER HONOUR:  I'll leave my sentence here with my associate so you can check the numbers.

71MR PYNE:  Nothing arise from it.

72HIS HONOUR:  All right, thank you

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