Director of Public Prosecutions v Hill
[2022] VCC 2156
•5 December 2022
| IN THE COUNTY COURT OF VICTORIA AT melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-22-01276
Indictment No. M12426985
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL HILL |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 30 November 2022 | |
DATE OF SENTENCE: | 5 December 2022 | |
CASE MAY BE CITED AS: | DPP v Hill | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2156 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Plea of guilty – persistent contravention of family violence intervention order – damaging property – aggravated burglary – contravention of order intending to cause harm or fear for safety – make threat to inflict serious injury
Legislation Cited: Family Violence Protection Act 2008, s 125A; s 123A(2); Crimes Act 1958, s 197; s 77, s 21; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Director of Public Prosecutions vReynolds (a pseudonym) [2022] VSCA 263; Pasinis v The Queen [2014] VSCA 97; Kalala v The Queen [2017] VSCA 223; Director of Public Prosecutions v Evans [2019] VSCA 239; Director of Public Prosecutions v Meyers [2014] VSCA 314
Sentence: 31 months imprisonment with a minimum non-parole period of 17 months imprisonment. Section 6AAA: 44 months with a minimum of 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. White | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L. Howson | Ajak Wolan & Associates Pty Ltd |
HIS HONOUR:
1Russell Hill, you pleaded guilty to one charge of persistent contravention of a family violence intervention order, which carries a maximum penalty of five years’ imprisonment; one charge of damaging property intentionally (10 years' imprisonment); a charge of aggravated burglary (25 years' imprisonment); a charge of contravening an intervention order intending to cause harm or fear for safety (5 years' imprisonment), and two charges of making a threat to inflict serious injury (5 years' imprisonment).
2You were born in September 1984. You were 37 years old at the time of the offending. You were living in Jetty Road, Rosebud.
3The victim was born May 1980 and is your ex-partner. You and the victim had been separated for approximately two years. You have a son together born January 2016, who was living with the victim at the time of the offences, but you shared parenting.
4The circumstances of the offending were outlined in the prosecution opening, which was amended as the plea proceeded. I will summarise those circumstances.
Circumstances of the offending
5On 5 February 2021 a final intervention order was granted at the Frankston Magistrates’ Court in favour of the victim. Your son was included as a protected person, however you were permitted to see him in accordance with Child Protection orders or written agreement.
6The intervention order included conditions not to commit family violence, not to damage property, not to attempt to locate or follow the protected person, not to contact or communicate with the protected person, not to approach or remain within 5 metres of the protected person and not to approach or remain within 200 metres of any address where the protected person lives. It was served on you on 8 February 2021.
7Throughout the morning of 23 November 2021 the victim was attempting to contact you. At approximately 3:30pm she went for a walk around the streets near your residence. Around 4:30pm she saw you walk up her driveway on her security cameras. She hid in the wardrobe. She heard you yelling and banging on the front door. She rang Triple 0. After a short time the banging stopped and she went to her neighbour’s house across the road.
8At her neighbours’ she heard you return to her place and scream, 'Come out, you cunt', and other similar comments. She heard a window smash. She felt extremely stressed and afraid. This conduct makes up part of a rolled-up charge of criminal damage and also part of the persistent contravention of a family violence intervention order.
9Police then attended and saw you being treated by ambulance officers for an injury to your right forearm, caused when you smashed the window. Due to the injury, arrangements were made for you to be arrested later on. A statement was also to be taken from the victim at a later stage.
10The victim returned home and saw the damage to her side window. That evening, you rang her victim numerous times. She did not answer. That is also part of the persisting contravention of the intervention order.
11At around 10pm she saw you walk up her driveway on the security cameras and, for the second time that day, she called Triple 0. This is part of the persistent contravention of the family violence intervention order. A person named Joe Kiss was with the victim at the time you returned.
12Again, she hid from you; this time in the bathroom. She heard you come through the front door into the house, kicking the front door in. This is the substance of the aggravated burglary with intent to damage and part of the rolled-up criminal damage charge. The victim then heard you damaging various household fixtures and items inside, while yelling out at her. This is the substance of contravening a family violence intervention order intending to cause harm and fear, and also part of the rolled-up criminal damage charge.
13Joe Kiss left, with you yelling out abuse at him. At one point you saw the victim inside, but you did not approach her. She then took the opportunity to leave and met police outside, who had just arrived.
14You were immediately arrested. Police took photographs showing the damage you had caused. A witness who lived nearby provided an audio recording of part of the incident to police. The victim provided police access to her security system. While the footage was being downloaded she showed police a text message exchange with you and the damage you had caused inside the premises.
15Call records were obtained from the victim’s mobile phone number. They show that you called the victim 233 times between 11 November 2021 and 23 November 2021; 171 were answered and 62 were not. During the same period the victim called you 716 times. Of those, 123 were answered and 130 were not; 463 voicemails were left. I do not really know what this intense level of communication was all about.
16The footage from the security cameras showed the following:
· At 15:57:30 you arrived on a bike at the victim’s address;
· At 15:57:39 you banged on the door;
· At 15:57:49 you smashed the glass window at the side of the premises. You cut yourself when breaking the glass with either your hand or your elbow and you paced back and forth, screaming out, 'Shit, shit, shit';
· At 22:20:48 you came running onto the property, towards the front window;
· At 22:21:21 you said this, 'Open the fucking door. I know you’re in there, I just saw you';
· At 22:23:01 you kicked the front door three times, forcing it open, and then you entered;
· At 22:25:53 you said, 'Where are you, you little fucking skank? Where are you, you little fucking skank?';
· At 22:24:02 a male - presumably Mr Kiss - is seen leaving from inside the premises. You said, 'Fuck off, cunt. If I see you again I’m going to cave your head in'. That is the basis of Charge 5 - threat to inflict serious injury;
· At 22:24:13 the victim said, 'Don’t hurt me, don’t hurt me, don't hurt me';
· At 22:24:20 noise can be heard of a plate, or something similar, being tipped onto the floor;
· At 22:25 you said, 'You brought it on yourself, dog. Next time I see you I am going to fucking stab you'. That is the basis of Charge 6 - threat to inflict serious injury; and
· At 22:27:33 the victim ran out of the house from the rear yard to police, who had just arrived.
Record of interview
17You were taken to the Frankston Hospital by ambulance because of your injured arm. At approximately 5:15am on 24 November 2021, you were discharged and then taken to the Frankston police station and interviewed.
18You said you went to the address out of concern for your son. You denied damaging any property or entering the premises. You were charged and remanded in custody.
Guilty plea
19You pleaded guilty to the charges at the earliest opportunity at a committal mention. Your plea has significant utilitarian value to the community. You have saved the court the resources involved in running a trial. You have also spared the witnesses, particularly the victim, the traumatic experience of having to re-live these events in giving evidence.
20The utilitarian value of your guilty plea is increased in the current environment where the court faces a backlog of trials as a result of the suspension of trials during the pandemic. The increased value of a guilty plea in the current circumstance has been recognised in a number of authorities; in particular in the case of Worboyes v The Queen.[1] You are entitled to a significant discount because of your guilty plea.
[1][2021] VSCA 169
21I accept your plea indicates a willingness to facilitate the course of justice and is indicative of contrition for your offending.
Victim impact statement
22A victim impact statement was tendered as an exhibit on the plea, but was not read in open court. In that document the victim referred to the effects of your offending and said that her enjoyment of life has deteriorated and she no longer wants to socialise. She worries about what you might do to her in the future. She is on antidepressant medication and feels stressed about your release from prison. She said she was unable to go to work after your offending. The offending cost her financially, because she had to pay for the damage you caused and had to look for another place to rent.
23It is clear the effects of your offending have been wide-ranging and enduring on her. The effect on the victim is a significant matter in sentencing in a case of this nature.
Personal circumstances
24You were born in September 1984 in Frankston. You were 37 at the time of the offending.
25Your mother, Valerie Hill, is now aged 56, and your stepfather, Tony Satillie, is aged 64. They both work. They attended the plea hearing in this matter and clearly they remain supportive of you. You were living with them when the offending occurred. Your son is now living with them, pursuant to a Child Protection order, and that arrangement will be in place until at least August next year. You have a stepsister and two older stepbrothers, with whom you are on good terms.
26You went to primary school in Rosebud and then Dromana Secondary School. You had little to do with your biological father but your mother and Mr Satillie provided a loving and nurturing home life. Mr Satillie has been your father figure.
27You were diagnosed with ADHD at school and put on medication, which you stopped taking once you started smoking marijuana at the age of 14. You left school at the end of Year 9 to become an apprentice butcher. You completed that apprenticeship after four years, but then decided you wanted to be a chef. Thereafter, you worked as a cook for almost 10 years at various locations.
28At about the age of 30 you moved into construction; initially as a labourer doing plastering and then asbestos removal. You started concreting and tiling. At the time of the offending you had been working as a tiler for Anthony Nativo for approximately three years. You have that employment available to you when released. Mr Nativo has provided a reference, which I take into account. In the lead up to the offences in this case there had been times when there was no work because of the lockdowns Melbourne went through last year.
29In 2010, with your then long-term partner, you had your first child, a daughter. She is about to start secondary school on the Peninsula next year. She lives with her mother, not far away from where your parents live. Your separation with her mother was amicable.
30Before you were remanded in custody you were seeing your daughter regularly; usually three days a week. You speak to her regularly from the prison. Your son with the victim is now aged six. You speak to him on the phone every day.
31Your relationship with the victim commenced in about 2014 and finished approximately two years before this offending. You raised your son together for about five years.
32In 2019 the victim became pregnant with your second child. Shortly before she was due to give birth she suffered a stillbirth. After that your relationship deteriorated, you started using ice heavily. You had dabbled with the drug some years earlier, you were intoxicated on ice when the offending occurred. This seemed to be common ground between the parties on the plea. Your behaviour certainly exhibited the hallmarks of someone out of control on that drug.
33The fact that you were affected by ice is not a mitigating feature in relation to this offending. I am told that you now understand the central and adverse role ice came to play in your life and you do not want to return to using it. I am told, and I accept, that you have not used drugs in custody.
Criminal history
34You admitted a criminal record which includes driving offences, an unlawful assault and criminal damage in 2018 and then, most significantly, on 5 October 2020, offences of stalking, committing an indictable offence on bail, contravening a family violence intervention order and wilful damage. These offences also related to the same victim.
35You spent 49 days in custody on remand for that offending. You were ultimately placed on a community correction order for a period of 15 months, which included supervision, testing, assessment and treatment for drug abuse and dependency, assessment and treatment for alcohol abuse and offending behaviour programs. The criminal history also tends to indicate problems with alcohol, as well as ice use, which was accepted in the submissions made on your behalf.
36The fact that you have committed family violence offences against the same victim approximately 14 months after receiving a community correction order is relevant to specific deterrence, moral culpability and your prospects of rehabilitation. It is also relevant to the issue of community protection as it relates to the victim in this matter. You were on that community correction order at the time you committed these offences, which is an aggravating feature of this offending.
37The offending in this case is properly described as family violence offending. In the decision of R vReynolds (a Pseudonym),[2] handed down in the last couple of weeks, the Court of Appeal reviewed the sentencing authorities in respect of this type of offending, including the decisions of R vPasinis,[3] R v Kalala[4] and R v Evans.[5]
[2] [2022] VSCA 263
[3] [2014] VSCA 97
[4] [2017] VSCA 223
[5] [2019] VSCA 239
38In the case of Reynolds (a Pseudonym), the Court said:
'Family violence is a blight on society, which this Court has been at pains to denounce'.[6]
[6] Reynolds (supra) at paragraph [71]
39And that:
'As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending'.[7]
[7] Reynolds (supra) at paragraph [77]
40The aggravated burglary is the most serious of the offences on the indictment, carrying a maximum of 25 years’ imprisonment. Serious features of this offence include that you returned to the victim’s residence and offended, even though you had been at the house earlier committing offences and police had attended; that the aggravated burglary took place at night; that this behaviour occurred in the face of an intervention order that had been in place since February 2021 designed to protect the victim; and that your entry onto the premises was a violent one, achieved by kicking the door in.
41I take into account the existence of the intervention order as an aggravating factor in respect of these incidents and the same acts which constitute the breach are covered by the aggravated burglary, and other offences, so I will impose concurrent sentences for those offences.
42Your counsel, Mr Howson, emphasised that the intent relied on by the prosecution was to damage, rather than assault, and therefore this was a less serious example of the offence than had your intention been to assault the victim. I accept this submission. Intent at entry is one factor I must consider in assessing the gravity of an aggravated burglary,[8] and generally an intent to assault is graver than an intent to damage. That said, this was obviously a very frightening experience for the victim. Although you did not assault her she had every reason to believe that you would, and that is why she hid inside the house on both occasions you attended, and particularly when you entered after kicking the door in. The threats you made were nasty and exemplify your uncontrolled aggression; no doubt fuelled by the ice you were using.
[8] Director of Public Prosecutions v Meyers [2014] VSCA 314
43While I have not been provided with any details of the value of the criminal damage, that charge encompasses various acts including the first episode of damaging the window and the damage you caused once inside the house in the second incident. This offence occurs in circumstances where I must not only consider the damage caused, but the fear your behaviour created. The damage to the door covers the same conduct as the aggravated burglary, so there is an overlap and I must be careful to avoid double punishment.
44Given the serious features of the offence and that neither the intervention order, or the earlier interaction with police that day deterred you, and where you have been dealt with before for offending against the same victim, I regard your moral culpability for the offending as significant.
Rehabilitation
45I am told that you have watched the CCTV footage and you were shocked at what you did and understand that you must take steps in your life to curb such behaviour. I accept you feel that way and you have now had over a year in prison to reflect on your behaviour and its consequences.
46There are several obvious risk factors for further offending including your use of ice, and that this is the second time you have committed family violence offences against this victim and there is a risk of further contact with her because you share a child.
47
Mr Howson made some submissions on the plea about the difficulties you say you have had in extricating yourself from the relationship with the victim and that there was a substantial amount of contact from her to you, and that you had some concern on the day for your son because she was intoxicated. It is clear from the phone records that there was a significant amount of contact from her to you. These matters are also raised in the psychological report tendered from
Dr Aaron Cunningham. These submissions were argued to be relevant to the potential for further offending, given you and the victim share a young child, and shed some light on the nature of the relationship. That may be so, but based on your account of the relationship and the incident to Dr Cunningham, you still seem to have an unhealthy focus on what you see as the victim’s deficiencies, rather than on your own, which are exposed clearly by the offending.
48Of course, nothing you have raised excuses in any way your family violence offending, and Mr Howson did not argue that it does, but your lack of insight is a reason for some caution in the assessment of your prospects of rehabilitation.
49Dr Cunningham administered the HCR-20 risk assessment and assessed you as a moderate risk of future violent offending. Your risk will reduce by avoiding relapse into ice use and having no contact with the victim. I am told you understand that the relationship with her is finished.
50On the positive side, you have a solid history in the workforce and stable employment available when you are released. You also have family support. You have not used drugs now for over a year. You can live with your parents, subject to any orders relating to your son. You understand that and you will have to work out where you are to live when released. You have now spent a considerable period in prison. I expect you now understand the message that further family violence offending will result in further imprisonment.
51There are reasons to have some optimism that you can adopt a lifestyle that reduces the risk of a repetition of family violence offending, but there are several obvious hurdles you will need to overcome.
52The time you have spent in prison has been largely served subject to the restricted conditions in prison in response to the pandemic including lockdowns, suspension of courses and visits. These matters have impacted on your time in prison, increasing the burden of your imprisonment, and I have taken this matter into account.
53In relation to the 49 days you spent on remand before you received the community correction order in 2020 your counsel, Mr Howson, submitted I should take into account the 49 days as 'dead time', given you received a community correction order for those offences; not a combination order of 49 days and a community correction order. It is not a mathematical exercise, but in fixing the periods of imprisonment in this case I have had regard to the 49 days you spent in custody before receiving the community correction order. I note the prosecutor, Mr White, accepted that I should take these matters into account.
Submissions
54Mr Howson seemed, to me, ultimately to accept that the offending in this case called for some period of further imprisonment, but submitted I should consider a combination order of imprisonment and a community correction order, with little further time to be served. The prosecutor, Mr White, submitted that a proper application of sentencing principles should result in a sentence involving a head sentence and a non-parole period. Given the need for denunciation, just punishment, specific and general deterrence and community protection, I think the prosecution's submission is correct. I will reflect the need to facilitate your rehabilitation via the non-parole period, which mitigates punishment in favour of rehabilitation. I will allow for a significant period of supervision on parole. This is the first time you have been sentenced to a period of imprisonment.
55In making orders for cumulation and concurrency between the charges I have had regard to the need to avoid double punishment and to the totality principle, which requires that the overall sentence I impose must be just and proportionate to the total criminality of your offending. In this case all of the offences were closely linked in time and purpose. I will impose some moderate periods of cumulation on the base sentence, which will be for the aggravated burglary.
Sentence
56In relation to Charge 1, persistent contravention of a family violence intervention order, you are convicted and sentenced to 12 months’ imprisonment;
57In relation to Charge 2, criminal damage, you are convicted and sentenced to 10 months' imprisonment;
58In relation to Charge 3, aggravated burglary, you are convicted and sentenced to 22 months' imprisonment;
59In relation to Charge 4, contravention of an intervention order intending to cause harm or fear, 12 months' imprisonment;
60In relation to Charge 5, threat to inflict serious injury, six months' imprisonment;
61In relation to Charge 6, threat to inflict serious injury, eight months' imprisonment - I just indicate that is because the victim in that incident of the threat was your partner and you had previously offended against her.
62Now, orders for cumulation are as follows: The base sentence is in respect of Charge 3, the aggravated burglary. Four months of the sentence on Charge 2, of criminal damage, two months of the sentence on Charge 5, of threat to inflict serious injury, and three months of the sentence on Charge 6, threat to inflict serious injury, are cumulative on the base sentence which makes a total effective sentence of 31 months' imprisonment.
63I fix a minimum non-parole period in this matter of 17 months.
64I declare pre-sentence detention to be deducted from the sentence that I have imposed of 376 days.
65I indicate that but for your plea of guilty the sentence I would have imposed would have been 44 months with a minimum of 30 months.
66MR HOWSON: As the court pleases.
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