Director of Public Prosecutions v Hetzel (a pseudonym)

[2019] VCC 1440

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARRYL HETZEL (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2019
DATE OF SENTENCE:	3 September 2019
CASE MAY BE CITED AS:	DPP v Hetzel (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1440

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Johnson	OPP
For the Accused	Mr D. McGlone	C Marshall & Associates

HER HONOUR: 

1Darryl Hetzel[1], you have pleaded guilty to one charge of common assault. 
The maximum penalty for that offence is five years' imprisonment.  You have further pleaded guilty to one charge of false imprisonment.  The maximum penalty for that offence is 10 years' imprisonment.
You have further pleaded guilty to three charges of making a threat to kill.  The maximum penalty for each offence is 10 years' imprisonment.  You have further pleaded guilty to one charge of criminal damage. 
The maximum penalty for that offence is 10 years' imprisonment.  You have further pleaded guilty to one charge of intentionally causing injury. 
The maximum penalty for that offence is 10 years' imprisonment.  You have further pleaded guilty to one charge of obtaining property by deception. 

[1] This is a pseudonym name.

The maximum penalty for that offence is 10 years' imprisonment.  You have further pleaded guilty to one charge of attempting to pervert the course of justice.  The maximum penalty for that offence is 25 years' imprisonment.  And finally, you have pleaded guilty to one charge of contravening a family violence intervention order intending to cause harm or fear for safety.  The maximum penalty for that offence is five years' imprisonment.

2The circumstances of your offending are set out in the prosecution opening for plea, dated 20 August 2019.  You were, at the relevant time, aged 50 years.  The victim in this matter had been in an intimate relationship with you for approximately three years leading up to your offending. 

3On 31 July 2017, you and the victim were drinking wine together during the course of an evening.  A verbal argument commenced regarding the victim's son, Mark[2], and her ex-husband, with you alleging that her ex-husband was a paedophile and that her son would be the same.  You said:

'The only way I'm going to get to Mark is to get to you, and I'll have to bash you or kill you.'

[2] This is a pseudonym name.

4At some stage, the victim slapped you to the face.  In response, you dragged her by the throat to the bedroom, where you held her down and choked her using your hands and then a pillow.  It is this conduct which founds Charge 1, common law assault. The victim tried to get up and escape on several occasions, but you pushed her back onto the bed.  It is this conduct which founds Charge 2, false imprisonment.   You said:

'You're not getting out of here.  I'm going to kill you.'

5And it is this threat which founds Charge 3, making a threat to kill.

6During the course of this incident, you grabbed at the victim's face and neck and held a pillow over her face which restricted her breathing. 

7You then took the victim's car keys without her permission and drove a short way down the road before walking back to the house and asking the victim to come with you to get the car and then drive you home.  The victim agreed in the hope that this would have you leave.  As you went to the vehicle, you started yelling at the victim again and took her keys.  She went to a nearby parked car for assistance.  The occupants of the parked car drove the victim back to her home, offering to ring police, but she refused, saying she did not want you to go to prison.  The victim subsequently attended back at the car, where you were still located, and drove you home.  On the drive home, you were verbally abusive and on arrival, you refused to get out of the car, kicking out and damaging the glovebox.  It is this conduct which founds Charge 4, criminal damage.

8Upon the victim exiting the vehicle, you punched the victim to the face.  It is this action which founds Charge 6, intentionally causing injury.  You told the victim that she was not leaving, and you said further:

'You're coming in the house and I'm going to kill you tonight.'

It is this conduct which founds Charge 5, making a threat to kill.  You dragged the victim by the throat approximately 5 metres towards the house, covering her mouth to prevent her screaming.  Once she got close to the door, the victim managed to escape and ran to nearby premises for help, screaming:

'He's going to kill me.  He's going to kill me.  Help, help.'

9Some time later, the victim located her car keys on the ground and drove to Yarra Junction police station, but it was closed.  The victim returned to the neighbour's home and informed them that she had been to the police station, and that it was closed.  She then drove home and was showering when police arrived, having been asked by the victim's son to conduct a welfare check. 

10The victim's injuries were photographed, and I note that, relevant to the charge of injury, she suffered bruises over her chin and tenderness to the right side of her jaw, together with tenderness to the zygomatic bones. 

11About an hour-and-a-half after this offending, the victim's bank card was used at a service station to purchase cigarettes and other items.  CCTV clearly shows you using the car, and it is this conduct which founds Charge 7, obtaining property by deception.

12As regards this incident, you were arrested and interviewed on 8 August 2017.  You did not admit the events which are the basis of today's plea.  You were bailed with conditions which included not contacting or attending within
200 metres of the victim's address.

13On 10 August 2017, an intervention order was applied for, and you consented to a full order without admissions.  Subsequently, you arranged for your sister to contact the victim in an effort to have the victim meet you.  The victim agreed, and shortly thereafter, you and she began seeing each other again.

14In late August or early September, you were staying at the victim's premises when you again became verbally abusive.  The victim asked you to leave and informed you that you should not be at her house anyway because of the intervention order.  You refused and said, 'I could kill you at any time I like.'  This conduct founds Charge 8, making a threat to kill.  The victim was fearful and did not take any further action.  You called the victim the following day to apologise, and she forgave you, and the relationship continued.

15In August 2017, you were told by the victim that the informant wanted her mobile phone for evidence.  You instructed her not to give it to the police as there was too much evidence. On 31 August 2017, the victim told the informant she would not submit her phone because she was not comfortable about it.  A few days later, you and the victim met at Yarra Junction where you smashed her phone and threw it in the river, together with your own phone.  You told the victim to wait it out a month before going to the police to report it as stolen.  The victim subsequently reported the phone missing to police at some stage between mid-September and early October.

16In early October 2017, you attended the victim's premises for the AFL grand final weekend.  On 7 October, a further argument commenced in relation to her son, Mark, and you repeatedly called the victim a 'lagger.'  You said that she should not have reported matters to police, and instead told them she had fallen down the stairs.  You also told the victim to attend her lawyer's office to withdraw her statement.  It is the totality of this conduct which founds Charge 9, attempting to pervert the course of justice.

17Following the last incident, the victim informed police that she had been seeing you again and that you had been breaching the intervention order.  On 10 October, she attended the police station and showed police a string of abusive texts you had sent her between 7 and 9 October.  I note that I have seen a copy of those text messages this morning.  It is this conduct which founds Charge 10, contravening a family violence intervention order intending to cause harm or fear.

18You were again arrested and interviewed on 12 October 2017.  You made admissions to breaching the intervention order but, in essence, blamed the victim.  You admitted sending the abusive texts between 7 and 9 October, but said it was just 'immature bickering.' 

19As regards the seriousness of your offending, this is family violence offending and you are to be sentenced on that basis.  The charges of common assault and intentionally cause injury are concerning incidents with real impacts for the victim, and ultimately, the wider community.  As discussed upon your plea, the charge of attempting to pervert the course of justice is also serious, given the special vulnerability of family violence victims to this kind of coercion and, ultimately, offending. The court and the community simply will not tolerate this type of offending.  We all have a right to feel safe in our homes and in the company of our partners.  The message must be clear that condign punishment will result in appropriate circumstances, weighed, of course, appropriately with other sentencing factors which include general and specific deterrence.

20No victim impact statement was tendered upon the plea, and I was advised that the victim had declined to make one.  It is, of course, not difficult to conclude that these incidents would have been frightening, and she, of course, suffered injury on one occasion.  The victim was reluctant to have the police called in relation to the first incident, which is, of course, often the sequalae to family violence offending, which creates vulnerability and often mixed emotion.  The impacts for victims are often complex.

21You have admitted the contents of a criminal record which includes offending in both Victoria and Queensland.  You have a number of driving and drug-related prior convictions, but more relevant for my purposes, is your history of violence, family violence, and criminal damage.

22In 1992, at the Brisbane District Court, you were convicted of offences including assault occasioning bodily harm while armed with a defensive weapon. 
You were placed on probation for three years.

23In 1995, at the Brisbane Magistrates' Court, you were convicted of assault occasioning bodily harm.  You were sentenced to community service.  In the same year, you were convicted and fined in relation to property damage.

24In 2001, at the Frankston Magistrates' Court, you were convicted and fined in relation to charges including unlawful assault and breaching an intervention order. 

25In 2009, at the Melbourne Magistrates' Court, you were convicted and fined for criminal damage.

26In 2011, you were placed on a Community Corrections Order in relation to a further charge of criminal damage and unlawful assault.  You breached that order the following year, and you were placed on a further corrections order.

27Your next relevant prior matter was not recorded until 2016, a gap of some four years.  In March of that year, you were convicted of criminal damage, making a threat to kill, and contravening an intervention order.  You were again placed on a Community Corrections Order.  It is concerning that this offending related to the same victim as the matters before this court.

28As regards your personal circumstances, you are now aged 54.  You are an Aboriginal man.  You were made a ward of the state at three months as your parents were, it seems, unfortunately, chronic alcoholics.  They had a total of 14 children, all of whom were placed in state care.  On the whole, you and your siblings grew up separately from each other.  You did not meet your parents until you were nine.  You had only sporadic contact with them until they both died when you were in your early 20s.

29After being taken into state care, your young life was far from stable.  You had multiple carers at various institutions and little contact with anyone outside the institutions, except for circumstances where you had run away or were living on the streets.  One positive memory you have is of a time when you lived in Kensington with a small community of nuns.  I note that Sister Cusack has provided a reference and says that, at that time, you impressed her as a young man who had a sense of determination and pride in everything he did.

30You lived at Bayswater Boys Home, where, tragically, you were the victim of both physical and sexual abuse over a period of about four years.  You told
Mr Simmons, whose report I shall turn to in due course, that this abuse involved penetration of a somewhat sadistic nature.  You reported the matter and it proceeded to trial.  Ultimately, you received a payment from VOCAT for pain and suffering, and I note that a letter of apology was tendered upon your plea from the Salvation Army. You sought the assistance of CASA, but it seems it never got to a point where you thought you had a positive therapeutic relationship, and ultimately, counselling was ceased

31Your wardship ended when you were 18, leaving you with few positive childhood experiences and little in terms of education.  You attended a variety of schools, but for short periods, which of course seriously compromised any chance you had of any real education.  You were ostracised and bullied and subjected to racial abuse.  You did not return to any education after Year 8.

32Unsurprisingly, you have a poor employment history.  You have had a few periods of employment but nothing stable.  In the later years, your alcohol abuse and drug use increased this instability.  You have largely lived in boarding houses with little connection to anybody.  Since being remanded in custody, you have worked in the kitchen as a pot scrubber without incident.  You have also completed units of education relevant to anger management and drug abuse. 

33As regards your drug use, you began sniffing glue at nine, you were consuming alcohol by 13, and by age 14, you were regularly using amphetamines, which continued until you were 22, with you reporting using about a gram a day.  Subsequent to this, you have primarily used cannabis and abused alcohol, but you have also experimented with a variety of other illicit substances.

34In relation to alcohol, you were drinking daily by 16, describing what is classically termed 'binge drinking.'  In more recent years, you have consumed, at times, up to two flagons of sherry a day.  You describe alcohol as a 'cure for the pain.' 

35You have attempted various forms of rehabilitation but, as yet, you have not been successful in the community.  I note that Mr Simmons opines that you would meet the criteria for an alcohol abuse disorder and post-traumatic stress disorder.  I note, of course, that the offending which brings you before this court involved the consumption of significant amounts of alcohol.

36You have had two relationships which, unfortunately, have been entwined with your substance abuse.  Your first relationship was at 21, and the second was with the victim of this offending.  You have one 26-year-old son with whom you have now ceased all contact.  You were in a relationship with the victim of this offending for some three years prior to the offences which bring you before this court.  I have been told that she has recently visited you in prison subsequent to the intervention order expiring, but it seems the relationship is to continue on a 'friends' basis.

37I received two testimonials upon your plea, the first dated 28 August 2019 from Sister Cusack from the Sisters of Our Lady of Sion.  She says she has known you since you were 15 when you came to live with her and the sisters in a community in Kensington.  She says you lived with the household for an extended time over a number of years, and that further, as an adult, you have always kept in contact.  She noted that by the time you reached the Sisters' care at 15, you were already facing issues with alcohol and substance abuse.  She says, in her view, at that time, you were not in a position to even look at the underlying issues.  She says, throughout your life, you have been capable and hard-working, and in her opinion, you are an intelligent and thinking man. Sister Cusack says that she feels a real sense of compassion for you and for all that has occurred.  She says she has, at times, been deeply moved by your capacity to be hopeful, your compassion for others, and your generous and caring spirit in relation to children.

38I received a further letter from Sister Mary Kavanaugh from the Sisters of
St Joseph.  She notes that you came to St Joseph's Children's Home in Surrey Hills in 1971, and in 1975, moved to St Vincent's, South Melbourne, and then to St Augustine's in Geelong, and later, to the Salvation Army home in Bayswater.  She notes that there were also times when you were a resident at Baltara and Turana, the then-juvenile justice centres in Parkville. Sister Kavanaugh's memories of you were of a bright, energetic, engaging, likeable boy who could sometimes be hot-tempered.  She says over the years she has remained in contact with you and most of your siblings.  She notes that you have often struggled with employment and housing, with issues around alcohol and drug use, and offending.  She notes that other times, you have had significant periods of being stable.  She says she admires your efforts to overcome your addictions and improve your situation.

39I received a report dated 14 August 2019 from Mr Warren Simmons, a psychologist.  Mr Simmons saw you for the purposes of assessment and report at Fulham on 14 August this year. Mr Simmons notes that, according to your welfare file, you were first placed on antidepressant medication aged seven.  Mr Simmons opines that despite your upbringing, you do not appear to have any significant intellectual deficits, but he notes that your childhood would have left you vulnerable to substance abuse, with your greatest difficulty being in relation to alcohol. Mr Simmons opines that as a result of your childhood, you were never able to form appropriate bonds with caregivers in your early years, and you have been left with a personality disorder with clear borderline traits.  He says this was compounded by the physical and sexual abuse you experienced growing up, and he found clear evidence of post-traumatic stress disorder.  He says that this has left you with problems with anxiety and unstable mood with an underlying sense of chronic low self-esteem.

40Mr Simmons notes that you have been living in boarding houses or sub-standard accommodation, and are unable to maintain employment, nor relationships.  It is in this context that you have resorted to alcohol or drugs to maintain an emotional state and as a coping mechanism.  He notes that despite all of this, there have been only limited offences in your adult years.

41As regards the current offending, Mr Simmons opines that it appears to result from your alcohol consumption in the context of a co-dependent relationship with the victim of these matters.  Mr Simmons says you would benefit from referral to a specialist skilled therapist in the treatment of both personality disorders and post-traumatic stress disorder in victims who have been raised in institutional environments and experienced abuse in that context.

42Mr Simmons says that your difficulties are entrenched, and cause pervasive difficulties in your life, and therefore, such treatment will need to be for a long time and still may only result in limited change.  Mr Simmons says that while drug and alcohol counselling may be of some assistance, it is unlikely to have any significant impact without both your personality disorder and post-traumatic stress disorder being effectively treated. He says that your prospects with regard to treatment and changing your life are limited, but expresses the view that, with the right structures, it is possible that you may not offend for some time.

43It was conceded by your counsel that the material before this court does not establish the necessary causal connection for the Verdins principles to have application.  In your case, of course, it is, however, your history of deprivation and disadvantage which substantially impacts the sentencing task.

44While I have concerns in relation to your prospects of rehabilitation, I think they must still be described as fair, given your demonstrated ability to remain largely offence-free over significant periods of time.  On the other hand, the factors which underpin your offending clearly need to be addressed, and this is likely to be a difficult road, given the entrenched nature of these difficulties.  At the end of the day, rehabilitation must, in my view, continue to be pursued.

45Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  Firstly, you pleaded guilty.  You have, by your plea, spared the witnesses the ordeal of giving evidence, you save the community the time and expense of a trial, and you are entitled to have those matters taken into account in your favour. The matter resolved upon more serious charged being withdrawn, and you were thus entitled to the full benefit of your plea.  I do take into account the contrition, which I accept as being inherent in the plea.  I accept that in your case, your plea is properly used as some evidence of remorse.

46This is your first time in custody and likely to have significant deterrent effect, whatever the duration.

47I take into account that you an Aboriginal man, and likely to experience custody more onerously.

48I have had regard to your life history of deprivation and disadvantage which is the context in which the offending occurred. I have acted on the basis that I must look at the reality of your life history and the context which it gives to the offending.  Any sentence I impose should be tailored to ensure you receive the assistance you need which will ultimately benefit the community. I accept that the effects of profound deprivation do not diminish over time, and they are to be given full weight.  In my view, the Parole Board is best placed to manage what I think will be a challenging transition back to the community.

49Your counsel quite properly conceded that the only disposition open is an immediately servable term of imprisonment.  The Crown concur.

50As well as matters personal to you, I must take into account relevant sentencing considerations.  Any sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this kind of offending, and deter you from future offending; that is, I take into account both general and specific deterrence.

51Would you stand, please?

52These are serious offences, and in the circumstances, I have no option but to impose immediately servable terms of imprisonment.  You are convicted and sentenced as follows.

53Charge 1, common assault, 12 months.

54Charge 2, false imprisonment, 10 months.

55Charge 3, threat to kill, six months.

56Charge 4, criminal damage, one month.

57Charge 5, threat to kill, six months.

58Charge 6, intentionally causing injury, 18 months.

59Charge 7, obtain by deception, one month.

60Charge 8, threat to kill, six months.

61Charge 9, attempting to pervert the course of justice, 12 months.

62Charge 10, contravention of a family violence order, eight months.

63I direct that six months of the sentence upon Charge 1, two months of the sentence upon Charge 2, one month of the sentence upon Charge 3, one month of the sentence upon Charge 5, one month of the sentence upon Charge 8, five months of the sentence upon Charge 9 and two months of the sentence upon Charge 10 be served cumulatively with the sentence upon Charge 6 and upon each other.

64Making a total effective sentence of 36 months.

65I direct that you serve 24 months before become eligible for parole.

66I direct that 691 days be reckoned as served.

67I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 48 months with a minimum of 36.

68I make a disposal order in relation to the chainsaw in the terms of the draft.

69I further make an order, pursuant to s.464ZF of the Crimes Act, for the taking of an intimate sample from you.  I inform you that police may use reasonable force to enable that procedure to be conducted.

70Mr Hetzel, what it means is that 39 days from today, you become eligible for parole.  So in that period of time, you will need to take the actions in the prison to take the matter to the Parole Board.  You then have one year to serve on parole.  All right? 

71OFFENDER:  Yep.

72HER HONOUR:  If you get parole.  That is a matter for the Parole Board. 
Just have a seat.  I want counsel to check the orders.  Check the cumulations if you would, please, counsel, and if you want me to repeat anything, please let me know.

73MR McGLONE:  Looks great to me, Your Honour.

74HER HONOUR:  Thank you. 

75MS JOHNSON:  Yes, 36 months.

76HER HONOUR:  Very well.  There is nothing further I need to do, counsel?

77COUNSEL:  No, Your Honour. 

78MR McGLONE:  Perhaps if you could repeat for my benefit the 6AAA.

79HER HONOUR:  Repeat?  Yes.  I direct it be noted in the records of the court were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 48 months with a minimum of 36.

80MR McGLONE:  Thank you, Your Honour. 

81HER HONOUR:  Yes, very well.  Thank you.  You can take Mr Hetzel downstairs, please?  I thank counsel for their assistance, and I adjourn the court.

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