Director of Public Prosecutions v Hibbs
[2023] VCC 142
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01374
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HIBBS |
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JUDGE: | HER HONOUR JUDGE HAMPEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 February 2023 |
DATE OF SENTENCE: | 8 February 2023 |
CASE MAY BE CITED AS: | DPP v Hibbs |
MEDIUM NEUTRAL CITATION: | [2023] VCC 142 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Guilty plea - intentionally cause injury – choking - contravene a conduct
condition of bail - commit an indictable offence on bail – childhood deprivation and disadvantage – substance abuse
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Bugmy v The Queen [2013] HCA 37
Sentence: Total effective sentence 3 years 6 months. Non parole period 9 months.
S 6AAA 5 years, non-parole period 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. White | Office of Public Prosecutions |
For the Accused | Ms J. Swiney | Kurnai Legal Practice |
HER HONOUR:
1Daniel Hibbs, you pleaded guilty following a sentence indication hearing, to one charge of intentionally cause injury and two related summary offences, one contravene a conduct condition of bail, the other, commit an indictable offence on bail. You have admitted to a criminal history that has a range of offences that you correctly described to Megan Rodgers, the psychologist who assessed you for the purposes of these proceedings, as relating to substance abuse and breach of family violence intervention orders.
2The main charge that you have pleaded guilty to, is one that does not reflect much credit on you. You went to the home of a woman you had known for some years and with whom you had had a relatively short-term intimate relationship some years earlier. [1] Although that had broken up, the two of you had remained friends and you used to spend time in each other's company.
[1] Name omitted to protect the victim’s privacy.
3In the days leading up to Christmas 2021, you had been to her home on a number of occasions. The two of you appeared to be getting on well, but you indicated on a number of occasions that you were acting in a sexual manner and indicated to her– or the way she interpreted it was, that you were interested in sex with her. She told you that she was not interested and reminded you that you had moved on and had a new partner, another girlfriend.
4On Christmas Eve 2021, you went again to the woman’s house and were again welcomed in. The two of you watched TV for some time and again you started acting in a sexualised manner and she again told you she was not interested. After you had been watching television for some time together and whilst her attention was diverted, you removed your own clothing. Then you sat across her, straddling her on the bed. She again told you she was not interested sexually. You tried to undress her. She kept her top on, but you pulled her lower clothing right off and straddling her, forced her down onto the bed. She tried to resist and you then tried to choke her.
5You used a phone charger cord that you happened to have with you. There is no evidence to suggest you went there intending to use it to choke her, but indeed, you used a phone charger cord to wrap around her neck, to try and choke her and to, it would appear, stop her resistance. She struggled with you and managed to get her hand underneath the cord, so as to pull it away from her neck. The struggle continued for some time, with you tightening it when you could and she loosening it when she could. At one stage, she tried to break free and you put your hands around her throat, instead of using the cord and tried to choke her that way as well. She was struggling to breathe, trying to call for help, but unable to call with any great volume, because of what you were doing. She was terrified.
6Eventually, one of her sons, who was in the room next door, heard enough to make him come to the door and try and get in and you ran away. Your victim was left with significant marks around her neck from where you tried to strangle her and bruises and scratches around her face, her neck and her upper body. She immediately reported it to police and they followed up on you very quickly. When contacted, you denied having been at her place that day and were unable to explain how your clothing came to be on the floor of her place, or how she came to be half dressed. You were charged with not only intentionally cause injury, but a suite of more serious offences, remanded in custody and have remained in custody since Christmas Day of 2021. That is a total of 410 days.
7Attempts to resolve the matter earlier had been unsuccessful, but ultimately, a sentence indication hearing proceeded before me on Monday, at which you indicated an interest in and the Crown indicated an interest in seeing whether the matter could be resolved by way of a plea of guilty to one charge of intentionally cause injury relating to the persistent choking attempts with the cord and with your hands and resulting in those weals, marks and scratches on the victim that I have described. Along with accepting guilty pleas to two summary offences, one breaching a conduct condition of bail by your being at the victim’s house when there were children present, something not permitted under a bail that you were already on and the other, committing an indictable offence on bail, namely this charge of intentionally cause injury whilst you were on bail for other charges. Ultimately, my sentence indication was accepted by you and so the matter comes on for plea today.
8It is not, therefore, an early plea of guilty, but it is a plea of guilty that has been offered and accepted in circumstances where more serious charges are not proceeded with and where you acknowledge frankly your guilt and responsibility in respect of this charge. So, it still has benefit, not as much benefit as the benefit you would have received had you pleaded guilty, after being charged, or immediately on committal, but it still has considerable benefit. It has spared the victim the ordeal of having to give evidence at trial. It has reduced the court backlog occasioned by COVID and just the general press of cases. So, you are entitled to a reduction in your sentence by reason of that guilty plea.
9You are now 35 years old and you come before the court as a man with a history of significant childhood deprivation and disadvantage. That has resulted in a poor employment history, a lack of family support, a history of real difficulty in maintaining respectful and enduring relationships and a history of substance abuse. Given the background of deprivation and disadvantage that has been detailed in the report of Ms Rodgers and in the submissions of Ms Swiney, your criminal history can be seen as, in a sense, surprisingly minor. The difficulties you have encountered in employment, in maintaining successful, respectful relationships, in dealing with conflict in ways other than resort to violence and in dealing with substance abuse, are also related to that childhood disadvantage.
10Ms Rodgers, in her report, sets out the background of deprivation and disadvantage. You were the first of three children born to your parents. Your father, from as young as you can remember, abused drugs and you recall many fights between your parents. They separated by the time you were 11 and your living environment after that you described as rough.
11By the time you were 13, feeling that you were not being supported by either parent, you ran away from home. Your schooling had already been significantly interrupted because of your father's substance abuse, the fights between your parents, and your mother's resort to abuse of alcohol after the separation. You were fortunate to have some family friends who took you in and you lived with them until you were 18. But the consequences of the deprivation and disadvantage continued and resulted in significant developmental and behavioural problems that have continued to manifest themselves.
12You left school young at only 14. For some years after that you gained employment working in carnivals as a fair worker, or carnival worker. But amphetamine use became a significant feature in your life and you had not worked for a number of years before the commission of this offence. In that time, after you left school and in the years leading up to this offence, you have partnered and fathered three children yourself, but your relationship with your partner had not been a successful one and your continued relationship with your children has been fragmented. That is something I accept you regret and you want to work on improving. From the report of Ms Rodgers, the origins of those poor relationships with your partner and children are traceable to the deprivation and disadvantage you suffered as a child.
13Your substance abuse can properly be seen as a reflection, again, of deprivation, disadvantage and early childhood exposure to substance abuse. So, you are much less culpable than other people who turn to abusing substances. That is, less culpable than those who have had the advantage of a stable family upbringing and parents who do not fight or abuse substances.
14You told Ms Rodgers that you struggled to recall much of your childhood and you were unsure whether that relates to the trauma of your upbringing, or to blockages in your own memory, because of your lifestyle choices and substance abuse. Whatever the reason, it is a sad thing, not to have many memories of childhood and not to have happy ones.
15When you were assessed by Ms Rodgers earlier this year, on a well-respected assessment tool that looks at somebody's symptoms in the previous two weeks, you rated high on the scale of exhibiting symptoms of severe depression, moderate for anxiety and mild for stress. Ms Rodgers noted that was all consistent with your presentation. After 12 months in custody, you appear to, in many ways, have done much better, than you had in the few years before that in the community, where instability, inability to live a substance free life, and lack of a proper routine and something meaningful to do characterised your life.
16You told Ms Rodgers that you had previously been diagnosed with bipolar disorder, major depressive disorder and generalised anxiety disorder, but she has not been able to find any independent evidence supporting that. She is certainly confident in her diagnosis that you currently or meet the criteria for an amphetamine-type substance use disorder of a severe magnitude, but in early or sustained remission in a controlled environment.
17I accept Ms Rodgers' opinion and Ms Swiney's submissions that the principles in the case of Bugmy[2] apply significantly to you and therefore significantly reduce the weight to be given to general deterrence. The deprivation and disadvantage from which you suffered in childhood have laid down a pattern for which you are not responsible. Therefore, you are not a person to be made an example of. I accept too that, to some extent, it also reduces the weight to be given to your moral culpability, because again, you were not exposed to the right values, systems, and supports as a child.
[2]Bugmy v The Queen [2013] HCA 37
18I accept Ms Rodgers' reliance on the studies and the current research that shows first that exposure to domestic and family violence often has a more profound impact, especially when experienced in formative years. That applies to you. That it has a lasting effect on a child's development, behaviour and wellbeing and is a significant marker for the development of depression, substance abuse and poor coping mechanisms. I also accept that the disrupted schooling as a result of that and your early departure from home, is something not of your making, but that again has led to increased disadvantage, The association between lack of education, lack of employment opportunities and the connection with the criminal justice system is well established.
19I also accept that there is a statistical likelihood that a child exposed to parental substance abuse is likely to experience poor development outcomes, to have an increased likelihood of becoming a substance user themselves and therefore to have contact with the criminal justice system. Your early exposure to your father’s substance abuse resulted in that statical likelihood and has been realised in your case.
20Your unemployment, in your more recent years, also is clearly connected with your poor mental health and increased substance abuse. Again, that ties back to your childhood deprivation and disadvantage. As Ms Rodgers points out, unemployment and poverty are strongly related to homelessness and that is something that has blighted your life
21In your favour are these things. Ms Rodgers finds no evidence of any cognitive disability and it is clear, not only from the way you express yourself and the way you present, but the way you have been able to engage in work since being in custody, that you do not have any learning or other disability, or any neurodiversity, which would impair you, or hold you back from getting meaningful employment upon your release.
22Also counting in your favour is the fact that you have used your time in custody the last 14 months or so, very well. You have used it as an opportunity to remain substance free, to accept the rigours, but also the benefits of living in a controlled environment, where you have somewhere to sleep, where you have a regular routine and where you have taken the opportunity to engage in meaningful employment. The fact that whilst you have been on remand, you have been engaged as a billet working in the bakery, indicates that you are clearly a trusted prisoner, somebody whose behaviour has been good and somebody who is returning clean drug screens.
23To have maintained that consistently for the 14 months or so you have been in custody also indicates that at 35, you do want to make a difference in your life. You want to have a more meaningful life on your release and you have had time to reflect on the difference between a safe and substance-free life, with the benefits, as well as the boredoms, that routine can bring and look forward to applying those learnings to life on the outside.
24Consistently with that and despite the disadvantages to those who have been in custody since the pandemic took over, you have engaged in almost every employment-related course that you can, in order to build on your skills, your experience and your qualifications, to better equip you for meaningful employment upon your release.
25So that having aspirations for the future, working towards them and working well in prison, all bode well for your future. Your prospects for rehabilitation are better than one might have thought, if one looks simply at your history, your criminal history, your substance abuse history and your poor recent employment history. So, I describe your prospects for rehabilitation as better than guarded and heading towards good.
26It will, of course, be of considerable assistance to you, if you can prepare yourself to work towards release in the community and if you are supported on your release in the community. That was really the thrust of Ms Swiney's plea, to give you a time that you could work to, to demonstrate to the Parole Board that you were ready to do the courses to prepare you for parole, ready to be granted parole and ready to accept and to live with supervision on parole, so as to assist your transition back into the community.
27You have also got a key awareness of the significance of having stable housing and prosocial supports, association with people who do not use and– abuse substances and people who live a positive lifestyle. You express great hope that you will be able to be assisted, both in custody and on supervised release, to achieve that.
28I urge the Corrections authorities to make accessible to you as many courses as you can do, to assist you to prepare for supervised and then unsupervised life back in the community, to equip you with the personal skills to resolve conflicts differently, and to assist you to understand better respectful relationships with women. Also, to assist you to work out how best to re-engage with your former partner so as to have a meaningful relationship with your children and to assist you to become a good father figure and role model for your children, and to assist you with stable housing and transition into meaningful employment.
29To assist you through all of that with managing the history of substance abuse and the history of poor mental health, so that you are properly engaged with rehabilitative and mental health services throughout the balance of your time in custody and upon your release. Although the decision about parole is not one for me, I urge the authorities to consider you for release upon parole at the earliest possible opportunity and to give you the opportunity to make that transition to life in the community, with the supervision and support that parole can offer. I structure my sentence accordingly.
30I also accept that your plea of guilty and your conduct since you have been in custody indicates that you are sorry for what you did. That you consider this to be not the sort of person you are and it is certainly not consistent with anything I can see in your previous criminal history. So, the fact that you are ready to accept help, that you want to earn parole, that you want to work, that you want to engage with rehabilitative services and find stable housing and employment on release, all indicate a real maturing. Your use of this time in custody as a time for proper, positive reflection bodes well for the future.
31I have also been interested to discover that you have only recently learnt that you have Aboriginal heritage and that you express an interest in finding out who your mob are and connecting with them. There are services available to people in custody for helping them to explore their Aboriginal heritage and connecting with their mob, and this may well be something that you want to explore. And again, I urge the Corrections authorities to place in your way, access to and contact with any support from indigenous groups, if you are ready at this stage to start exploring that. And if and when you are released upon parole, again I urge the Corrections authorities to give the option, if you are at that stage ready to do it, of connecting with indigenous groups who may help you understand that part of your heritage and background, give you some pride in your mob and your connection with country, and give you perhaps a sense of belonging that has been missing for you for much of your adult life.
32So, all of these matters I take into account in your favour and weigh significantly in tempering the weight that must otherwise be given to denunciation, deterrence and just punishment. This was inexcusable behaviour so far as your victim was concerned and the sentence must reflect the abhorrence that the community rightly feels for violence directed towards women, particularly women with whom one has shared an intimate relationship, women who have freely in the past engaged in consenting sexual activity with someone, but also women who have exercised their right, their undoubted right to say no to sexual activity with somebody if they do not want to.
33So, the sentence must reflect the importance of valuing that and stand as a signal to you and to other men, that you cannot simply force yourself on somebody and you cannot injure them either as revenge for saying no, or in order to try and achieve your end. I cannot make and do not make any findings in assessing the seriousness of this offending about what your motivation was and I am conscious of the fact that I am sentencing you for a charge of intentionally cause injury, not one related to sexual assault or injuring with intent to engage in sexual activity.
34I am sentencing you, I want to make it quite clear, for the choking conduct itself. But as the prosecutor pointed out on the previous occasion, choking is a particularly serious form of violence against women because it is so often statistically related to much more serious violence being inflicted upon the woman or another woman. But I accept that you seem to have been shocked by your behaviour and the way you have used your time in custody is a reflection of the fact that you accept such behaviour is unacceptable and therefore I have got a level of confidence that you are unlikely to act in a similar way again.
35So balancing all those matters as best I can, marking denunciation for your behaviour, noting deterrence but reducing the weight that would normally be given to it because of your disadvantaged background, structuring a sentence that I hope is going to encourage your continued rehabilitation and support in the community, I fix upon the following sentences.
36On the three charges to which you have pleaded guilty you are convicted, that is the one indictable charge and the two related summary offences.
37On the charge of intentionally cause injury, I sentence you to be imprisonment for a period of three years and six months.
38On each of the two summary offences of contravene a conduct condition of bail and commit an indictable offence on bail, on each of those you are sentenced to a period of one month imprisonment, and I make no cumulation orders in respect of those. So that means your total effective sentence is one of three years and six months.
39I fix the period of one year and nine months as the time that you must serve before being eligible for parole and I declare that you have spent 410 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
40If you had not pleaded guilty I would have sentenced you to a term of imprisonment of five years and fixed a non-parole period of three years; that is my declaration pursuant to s6AAA of the Sentencing Act.
41Can I just add, Mr Hibbs, that it is my hope that the time that I have allowed between the time you have already served and the time for eligibility for parole is a time that will enable you to participate in the courses that will properly prepare you for release on parole, the courses that Corrections has and that you will need to do in order to satisfy them that you have got the level of skill and preparedness to enter into supervised release into the community. So, I have thought very carefully about not letting you out or having you eligible to be let out too early when you do not have the supports already with you. Finding what I think is the minimum term that I can give you commensurate with my findings about the seriousness of the offending and taking into account the mitigating features.
42It is, in my view, a much lower sentence than would ordinarily be appropriate for a choking offence. So whilst I know you were probably hoping to be eligible for parole a bit earlier than now, in my view I have tried to balance weighing that seriousness of the offence with the need to make sure you are properly prepared before being released on parole, but allowing a very considerable gap between that minimum term and the head sentence to give you the opportunity to have the benefit of supervised release upon parole, should the authorities see fit to do so.
43HER HONOUR: All right. Mr Hibbs, I wish you well. Keep on taking advantage of your strengths, keep on working and keep on demonstrating that you are a much better person than your history might show and you have got a lot of potential and a much better life waiting for you outside. Keep that in sight and I hope that the next time someone sees you in court, it is because you are coming along as a mentor and support for someone else who has had a difficult life, but to show them how they can turn it around and make something of themselves.
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