Director of Public Prosecutions v Higgins
[2013] VCC 1282
•11 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00934
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD HIGGINS |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2013 | |
DATE OF SENTENCE: | 11 September 2013 | |
CASE MAY BE CITED AS: | DPP v. Higgins | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1282 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Aggravated burglary - intentionally causing injury
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Community Correction Order for 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms D. Hogan Ms C. Picone | Office of Public Prosecutions |
| For the Accused | Ms C. Woodward | Victoria Legal Aid |
HIS HONOUR:
1 Mr Higgins, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury.
2 Aggravated burglary carries a maximum penalty of 25 years' imprisonment and intentionally causing injury a maximum penalty of 10 years' imprisonment.
3 You are presently 49 years of age, having been born on 2 July 1964, and you were aged 48 when this offending occurred around seven months ago.
4 The victim in this matter, Ronald Spykers, was 33 years of age at the time of the offending. He was living in a rooming house at 34 Kinsale Street, Reservoir. The rooming house has five bedrooms, and five people were living there at the time.
5 In early January your stepson was staying at the rooming house with some other males. He was friends with a resident of the rooming house, Glen Hall. He had stayed there for approximately two and a half weeks. The victim told your stepson to leave as he did not live there.
6 On Saturday 16 February 2013 at approximately 6 pm you entered 34 Kinsale Street. You spoke with another resident, Ross Sonnet, and said to him, "Where's Ron's room, if you get in my way I'm going to fucking kill you." Sonnet pointed towards the victim's room. You then entered the victim's bedroom. This conduct constitutes Charge 1 of aggravated burglary.
7 You asked the victim if he was Ron and the victim replied that he was. You approached the victim and punched him three times to the left side of his head. The victim pushed you away and restrained you against the armrest of a couch by holding you to the throat for a few seconds. You freed yourself and punched the victim twice to the jaw. You then put the victim in a headlock and continued to try and punch him. The victim freed himself from you.
8 The victim sustained a cut to the left side of his head which bled. His jaw felt numb as a result of this assault. This conduct constitutes Charge 2, intentionally causing injury.
9 Another resident, Glen Hall, entered the victim's bedroom and held you back from the victim and told you to stop. You told the victim not to threaten your family or you will return and stop him in the middle of the night. You continued to lunge at the victim and repeated threats, but Hall held you back. Hall managed to remove you from the victim's room.
10 Police were called and later spoke with you and asked you about the offending. You said, "Yeah I know. I did it. No-one messes with my family." You were arrested and conveyed to the Preston Police Station.
11 You were thereafter interviewed by police, made admissions to the offending and stated the following:
- "I went in and I smacked him for smacking my family. I don't like he picks on kids.”
- “I hit him, mate, and I don't care."
- The victim upset your family and made your stepson cry. You said that your stepson had called you and asked you to attend. You said you would not because you were too drunk. You stated that you go past the rooming house every day and today you walked past and "lost it."
- "That's all it is, an eye for an eye.”
- “I wasn't trying to kill him or anything like that, but I think I wanted to hurt him."
- You would plead guilty when the matter got to court.
12 In his victim impact statement, the victim has stated how the incident has compounded his pre-existing conditions of anxiety and depression, relationship difficulties, headaches and general emotional exhaustion.
13 You pleaded guilty at the committal hearing on 16 May 2013.
14 I now turn to your personal circumstances.
15 As I noted earlier, you are now aged 49. You do have a criminal record, albeit for relatively minor offending some 30 years ago when you were aged 17 and 18. I note that they did not involve violence to any person.
16 You had a disrupted childhood with an abusive father who was violent to you and also to your mother. Your family moved frequently and your education was fractured. You left school after completing Year 7. You thereafter have worked in labouring jobs, including those as a rigger, a dogman, a scaffolder, a crane and forklift operator. You have also had periods of long unemployment. At the time of the offences you had been working in demolition for about 12 months. You no longer have that job and are currently receiving a Newstart allowance.
17 You had been in a relationship with your ex-partner for 28 years and have three adult children. You currently live in a share house and have a new girlfriend.
18 Perhaps the most significant aspect about your personal circumstances is your longstanding substance abuse problem. You commenced using marijuana at 14 and have used amphetamines also in the past. You also have a significant history of drinking alcohol which, again, you commenced at an early age.
19 A report from Mr Martin Jackson, neuropsychologist, was tendered on your plea. Mr Jackson undertook a comprehensive evaluation of your mental and emotional functioning. In summary, in Mr Jackson's opinion:
§
You have a very severe substance abuse mental health disorder, consequent upon a 35-year history of heavy alcohol and marijuana use.
§ The majority of your cognitive, that is thinking, abilities now range from Low-Average to Average, with higher level attention activities in the Borderline range.
§ The degree of specific impairment, including the propensity to act impulsively, is likely to be exacerbated if you are under the influence of substances.
§ The disorder, in Mr Jackson's opinion, contributed to your offending on the instructions that you gave that between you and another person you had consumed 3 slabs of cans over a period of 8 hours prior to the offences.
§ You continue to suffer from the disorder and this will not change unless you engage constructively with the assistance of appropriately qualified professionals.
§ You are likely to find imprisonment more difficult than a person not suffering substance abuse, as it is highly likely that you would go into a severe alcohol and marijuana withdrawal if either of these substances were stopped suddenly. This will require medical management.
§ Further, it is highly likely that you will experience some improvement, perhaps even total recovery from your current cognitive difficulties, if you stop using all substances.
20 The offences you have committed are obviously serious. Home invasion is a terrifying experience. The emotional effects can be longstanding. The crime of aggravated burglary in these circumstances undermines the sense of security people are entitled to feel in their own homes. The Court of Appeal has stated that the incidence of home invasions must be discouraged by the courts and that it would only be in a rare case that such conduct would not result in a sentence of imprisonment to be immediately served and for a significant period. The principles of general deterrence, the protection of the public and denunciation feature prominently in the sentencing discretion. The maximum penalty of 25 years' imprisonment is an indication of how seriously Parliament views this offence.
21 Similarly, assaults causing injury can have an emotional effect well beyond their physical consequences. Yours was the act of a thug.
22 In mitigation I accept the matters urged upon me by your counsel, including:
§ your plea of guilty and that it was indicated at the very earliest stage;
§ your lack of any previous offending for acts of personal violence, and that your earlier offending was in your youth and for relatively minor matters;
§ the absence of any offending for the past 30 years;
§ that the offending was relatively spontaneous and involved no pre-planning, was more a matter of brooding over a situation and then offending and when your inhibitions were likely lowered by previous drinking;
§ you did not flee the scene but waited until police arrived.
§ As to personal matters, you have maintained a long-term partnership raising three children, none of whom has offended against the criminal law;
§ you have worked in hard manual employment over many years and on a regular basis;
§ you experienced a traumatic childhood where you turned to alcohol and marijuana and left home at a very young age in the context of a violent domestic environment;
§ you suffer from a substance abuse disorder of longstanding which has affected your cognitive abilities, and
§ with professional assistance and sustained application on your part your disorder can be very much reduced and possibly even eliminated.
23 The basic purposes for which a court may impose a sentence are punishment, deterrence (that is both specific to you and general for those others in the community who might be like-minded to offend), rehabilitation, denunciation and the protection of the community.
24 In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
25 Ordinarily, for this type of offending an offender should expect a sentence of immediate imprisonment and for a substantial period.
26 After careful consideration however, I have decided that the competing considerations and the particular circumstances of this case are best answered by the imposition of a community correction order which will contain conditions that you undertake unpaid community work and treatment for your substance disorder. You have been assessed by the appropriate personnel at the Office of Corrections as suitable for a community correction order.
27 On Charges 1 and 2 you are convicted and ordered to serve a community correction order for a period of three years.
28 The community correction order commences today and ends on 10 September 2016.
29 The Corrections Centre you will attend is the Reservoir Community Correctional Service at 909 High Street, Reservoir, and you must attend there within two clear working days after the commencement of the order, that is by 4 pm on Friday 13 September 2013, which is this Friday coming.
30 All the mandatory terms of the community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 150 hours of unpaid community work;
· you undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager;
· you undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager; and
· you undergo any mental health assessment and treatment that may include psychological, neuropsychological and psychiatric, in a hospital or residential facility, if necessary, as directed by the regional manager.
31 I believe from the pre-sentence report that you have had the mandatory terms of the community corrections order explained to you. However it is appropriate that I briefly summarise them here. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time the order is in force;
· you must report to and receive visits from a community corrections officer;
· you must report to the Community Corrections Centre, that is the Reservoir centre, within two clear working days of the order starting, and as I have already indicated, that is this Friday 13 September;
· you must notify a community corrections officer of any change of address or employment within two clear working days after that change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers. Such directions may be given either orally or in writing.
32 Do you understand and agree to those conditions, Mr Higgins?
33 OFFENDER: Yes.
34 HIS HONOUR: If you become sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections Centre, that is the centre at Reservoir, and I recommend that you obtain legal advice if any of those things happen. The essential matter is to keep in communication with them.
35 However, I must warn you that if you breach any condition of this order you will be brought back again to court and that will be before me. One of the options open for me is to cancel the community correction order and to re-sentence you on the original charges and I may also deal with you for the breach by sending you to prison for up to three months. Mr Higgins, do you understand the consequences of breaching your community correction order?
36 OFFENDER: Yes.
37 HIS HONOUR: Thank you. At the plea hearing the Crown sought an order which was not opposed for the taking of a forensic sample. I have made that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, the order was by consent and the granting of the order is in the public interest. I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Higgins?
38 OFFENDER: Yes.
39 HIS HONOUR: There is an order that needs to be signed, is there not? I will have that now forwarded to your instructing solicitor and have you sign. You may leave the dock now at this stage, Mr Higgins. After Mr Higgins has signed that - yes there is a spare seat there.
40 (Community correction order signed and acknowledged.)
41 Thank you. No other formal matters, are there, from either counsel?
42 MS PICONE: Nothing further, Your Honour.
43 HIS HONOUR: Mr Higgins just stand up for a moment, I want to speak to you directly about this.
44 In arriving at the sentence that I have, I have given you a break. I have done so because in reading all the materials before me, I have gained the impression that, first, you are not by nature a violent or an anti-social man at all, that essentially you are a decent hardworking man who has not had an easy life, but who has made the best of it. The current circumstances might be best described by what is commonly now referred to as a "brain fade." Even the best of individuals can have them and in this case it was mostly brought about by your drinking patterns: even if you were not chronically drunk at the time, you have got such a regular pattern of abuse.
45 I think in one of the stages of your record of interview, you said effectively that you are half-drunk half the time or for the whole time. You have a chronic drinking problem and it is going to kill you, so it is in your best interests to apply yourself to this course that you are going to have. I suspect it is because the police took a similar view about your fundamental nature that ultimately the prosecution was in a position to concede that a community correction order was well within appropriate sentencing range and not push to have you presented to prison. So the essence of who you are as a man and what you have done has stood with you in the course of this whole process.
46 There are programs which will be available to you as a result of this community order and they will help you manage your life a lot better, so you would be well advised to embrace those programs and apply yourself conscientiously and diligently to them. You have got the physical capacity now to do the work component order and to do that conscientiously and you will find that that will help you as well, but you apply yourself to these courses and the professional help that you can get. You are not going to get off this substance stuff straight away, it is not going to happen, but they will help you reduce it significantly and that will help you to lead a happier and much healthier life - not only to the benefit of the community which would prevent you from committing other offences, but also importantly to the benefit of yourself, your health and to those of your loved ones. So if you apply yourself you will not be coming back before me and have to be re-sentenced and you will be a lot healthier in a very short time. All right.
47 We will adjourn until 10.30.
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