Director of Public Prosecutions v Hill
[2014] VCC 893
•12 June 2014 at Morwell
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00940
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL JOHN HILL |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley | |
DATE OF PLEA: | 29 May 2014 | |
DATE OF SENTENCE: | 12 June 2014 at Morwell | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hill | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 893 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglary – recklessly causing serious injury – recklessly causing injury
Legislation Cited: Crimes Act 1958, s17, s18, s77(1), s464ZF; Sentencing Act 1991
Cases Cited:Markovic v R; Pantelic v R [2010] VSCA 105; Hogarth v R [2012] VSCA 302
Sentence: Convicted and sentenced to a total effective sentence of 30 months’ imprisonment, with a period of 12 months’ imprisonment to be served before becoming eligible for parole.
Section 6AAA declaration: Convicted and sentenced to a total effective sentence of 49 months’ imprisonment, with a period of 24 months’ imprisonment to be served before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Hammill | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Starvaggi | Duffy & Simon Lawyers |
HIS HONOUR:
1 Russell John Hill, you have pleaded guilty to the following charges:
·Charge 1 ― that you, at Longwarry in Victoria on 22 January 2013, entered as a trespasser, a part of a building known as Unit 2, 30 Gardner Street, with intent to commit an offence involving an assault to a person therein, and at the time you had with you an offensive weapon, namely an iron bar, and at the time of entering, a person was then present in that part of the building, and that you knew that a person was then so present or were reckless as to whether or not a person was then so present.
·Charge 2 ― that you, at Longwarry in Victoria on 22 January 2013, without lawful excuse, recklessly caused serious injury to Adam Patterson.
·Charge 3 ― that you, at Longwarry in Victoria on 22 January 2013, without lawful excuse, recklessly caused injury to Benjamin Morland.
2 Charge 1, involving aggravated burglary, is contrary to s77(1) of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment. Charge 2, involving recklessly causing serious injury, is contrary to s17 of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment. Charge 3, involving recklessly causing injury, is contrary to s18 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
3 The Prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (exhibit 1) and has been accepted by you and your Counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)You are presently forty-one years of age and at the time of offending were forty years of age;
(b)In July 2012, your nephew, Dean Holland, died from a drug overdose. At the time of his death, he was residing at an address in Longwarry which he shared with the complainant, Adam Patterson. The family of Dean Holland blamed the complainant, Patterson, for his death;
(c)There have also been instances of verbal altercations between you and Patterson, with you believing that the complainant, Patterson, was mocking you and intimidating your wife, so much so that your wife,
Ms Benson, feared for her safety;(d)On 22 January 2013, you were angry and decided to attend at Patterson’s unit to assault Patterson in retribution for your nephew’s death and his behaviour in mocking you. You enlisted the help of your son, Nicholas Hill, who was twenty years of age at the time of the offending, and your nephew, Mitchell Hill, who was seventeen years of age at the time of offending;
(e)Prior to attending the residence of Patterson, you armed yourself with what the victims described as an iron bar, but which you described as a steel bar piece of pipe;
(f)On arriving at the premises of Patterson, you knocked on the flywire door, which was unlocked, and thereafter you pulled the door open and entered the premises with the steel bar, in company with your relatives;
(g)On entry to the premises, you immediately struck Patterson, causing him to fall to the lounge room floor, after which you continued to assault him. In your record of interview, you stated:
“I lost the plot and beat the shit out of him.”
And later:
“I just ran in straight down into his lounge room and got him onto the ground and kicked the frigging crap out of him.”
During this time, you demanded answers to questions concerning the overdose suffered by your nephew;
(h)Benjamin Morland, the second complainant, attempted to intervene to assist Patterson, at which time you ceased assaulting Patterson, and Nicholas Hill commenced assaulting Patterson.
(i)You grabbed the second complainant, Morland, by the throat and commenced to strangle him, after which ensued a struggle, during which time Morland was struck with the steel pipe, causing a small cut to his forehead. You assert that this was more of an accidental blow. You continued to strangle Morland until he lost consciousness;
(j)You then left the premises and police arrived shortly thereafter;
(k)Patterson was conveyed to the Warragul Hospital where he was diagnosed to have suffered a tripod fracture over the left maxilla with a small amount of displacement, left renal contusion, the left kidney had suggestions of hypoperfusion and extensive dental caries. A thoracic spinal x-ray showed a likely fractured medial aspect to the sixth and seventh ribs. Patterson was discharged the following day;
(l)The complainant, Morland, sustained contusions and cuts to the forehead.
4 On 23 January 2013, you were arrested in Pakenham, after which you were interviewed by police. It is accepted that you made full and frank admissions and stated that you felt frustrated, as you could not clearly understand how your nephew had died. Furthermore, you stated your feelings were “exacerbated” by your chance meetings with Patterson on the street, where you felt that Patterson showed little remorse for your nephew’s death.
5 The Prosecution tendered a series of photographs showing some of the injuries suffered by the complainants, Patterson and Morland. (See exhibit 2)
6 Your Counsel tendered the following material:
·Exhibit A – Reports from the psychologist, Mr Ian Joblin, who interviewed you on 26 April 2013 (see report dated 27 April 2013) and who also interviewed Sara Benson (your wife) on 15 August 2013 (see report dated 16 August 2013).
·Exhibit B – Character references from Mr Aaron Scott Nutting dated 21 August 2013, Ms Cary Skews dated 24 April 2013, Mr Darren Skilton dated 26 August 2013 and Mr Mark Miles dated 23 October 2013.
·Exhibit C – Medical material in relation to Ms Sara Benson from Dr Martin Baker dated 4 January 2011; GP Mental Healthcare Plan dated 4 January 2011; report from Dr Anna Piesiewicz-Bialek dated 13 June 2012 and report from Dr Martin Baker dated 15 February 2011.
·Exhibit D – medical material pertaining to Miss Rochelle Hill dated 26 September 2013 and from the psychologist, Ms Anita Hermans, dated 12 June 2013.
·Exhibit E – ANZ bank statements in relation to the home loan account and business loan account.
·Exhibit F – Reference from Mr R Born.
·Exhibit G – Letter from the informant dated 26 May 2014.
7 On the basis of the tendered material and the various submissions made by your Counsel, I set out details of your personal circumstances, educational and vocational background.
8 You informed Mr Joblin that you were adopted as a baby from the Royal Women’s Hospital by Mr and Mrs Hill, who had seven other children, including a daughter, Pauline, who was the mother of Dean Holland who died from the drug overdose.
9 You informed Mr Joblin that your adoptive father had been a mechanic and worked for the local Shire. You described your adoptive father in very positive terms and had a good relationship with him until he died in 2010 at the age of eighty-one. Your adoptive mother is eighty-six and currently living in a nursing home, suffering some degree of dementia. You have taken responsibility for your adoptive mother’s affairs.
10 You made plain to Mr Joblin that you placed “a very strong emphasis on the value of family”.
11 You were educated at the Pakenham Secondary School to the end of Year 9 and thereafter, worked as a storeman in Beaconsfield and later, in a wrecker’s yard in Pakenham. You have also performed construction work and worked as a fitter and turner.
12 In 2000, you bought your current business, a wrecker’s yard in Pakenham, with an associated mechanic’s workshop. You informed Mr Joblin that the business has been successful and you now employ a number of staff. In particular, you have an interest in motor racing which assists your business. I note that the ANZ business account has a debit balance of $38,406.00.
13 You left home at the age of nineteen and moved into rented premises in Pakenham with your then wife, Sharon. That relationship produced three children: two sons and a daughter. All the children live with you. Your older son, Nicholas (who attended with you at the premises of the complainant), has completed an apprenticeship as a fitter and turner and your second son, born in 1994, works in retail. Your daughter was born in 1999 and she presently attends school.
14 You describe yourself as a “workaholic” but unfortunately, in 2010, because of what you believe was your dedication to the business, your marriage came to an end and you separated from Sharon. You described that there was a serious degree of animosity at the end of the marriage and you were caused some distress, particularly in relation to the property settlement. Sharon has begun a relationship with another man and apparently still is in that relationship.
15 After Sharon made it clear that she did not want custody of the three children, you have looked after the children, buying a property in Lang Lang, where you remain. You commenced a further relationship with Sarah, who has a good relationship with your three children. Your relationship with Sarah has produced a daughter, born on 8 November 2012. Sarah helps you complete some of the bookkeeping requirements of the business.
16 You described experimenting with cannabis when a teenager but otherwise have no history of drug use and although you drink alcohol, your consumption is well controlled. You did indicate that you had been drinking at the time of the subject offences but Mr Joblin and yourself consider the role of alcohol was minor.
17 You are fit and well and do not have any previous record with the police.
18 Your major recreational interest is speedway racing and both you and your elder son have built various cars and taken them to meetings throughout Victoria. You have been very successful in this area and you have also been involved in the administrative side of motorsport and are president of a particular club.
19 You explained to Mr Joblin that you were close to your deceased nephew, who, at times, had worked for you in your business. You informed Mr Joblin that you considered your deceased nephew virtually as “a brother”. Apparently, you often commiserated with your sister over the death of Dean and on the day of offending, you had been to your sister’s home. On that day, your sister informed you that she was “having difficulties with Mr Patterson”. She felt as though you were being abused.
20 In his report dated 27 April 2013, Mr Joblin states, in part:
“In my opinion the offending was based in passion. Mr Hill is certainly not psychopathic. He does not suffer a disorder of impulse control such as an Intermittent Explosive Disorder.
I note that he has had no previous history of attention from the police.
In relation to the role of alcohol in these offences, Mr Hill acknowledged that in all probability offending would have occurred even in the absence of alcohol.
There is no evidence of symptoms of any diagnosable psychological abnormality in this case. These offences are not representative of any identifiable disorder. They do reflect Mr Hill’s strong opposition to the drug environment and his emphatic adherence to values associated with the family.
Mr Hill is very aware of the nature and seriousness of the offences and certainly did not minimise them. He indicated however, that if he is unable to manage his business, it would in all probability fail and his staff will be without work. Further, he believes that the mortgage on his property in Lang Lang will be seriously encumbered.
Given that these offences do not represent a recognisable disorder and given the context in which they occurred, it is appropriate to indicate a reasonably optimistic prognosis, particularly as that context is totally over. Mr Hill is not seeking retribution. He does not justify his behaviour by the history. He indicated that he is unaware of the victim’s current location. He stated that he simply wants to remain to assist his family including his sister. He plans to continue his business and his relationship. He indicated that he will continue to raise his four children. These ambitions in my opinion are to his credit.
From a forensic psychological perspective there seems to be no impairment to his ambitions and, as indicated, the context in which these matters occurred seems to be well and truly over. There is, therefore, the basis for a rare optimistic prognosis.”
21 Various documents that were tendered relate to your wife, Sarah Benson. Sadly, she has had a history of mental health problems and seemingly, prior to February 2011, had some history of attempted suicide. Her general practitioner, in January 2011, arranged for a Mental Healthcare Plan and made a diagnosis of Depression and Personality Disorder. At that time, she was taking the anti-depressant medication, Lovan and Zoloft. There was also a later referral under the Mental Healthcare Plan dated 13 June 2012 in relation to “Depression and pregnancy”.
22 When interviewed by Mr Joblin on 15 August 2013, Ms Benson stated that she considered her current condition to be “reasonably satisfactory” but noted that she can slip back into Depression.
23 In his report dated 16 August 2013, Mr Joblin states:
“It is against that background that she indicated serious concern about Mr Hill’s travels through the criminal justice system. She indicated that one of the issues relevant to her Depression involved the difficulties she had with Mr Patterson including the threats she received from him. In addition to that she has also had difficulties with the mother of Mr Hill’s three children.
The fragility she reported which was quite apparent at the time of my interview with her can be exacerbated by stressors of traumatic events. When I asked her how she might cope if Mr Hill was not present to assist her, she found it difficult to even consider that option. That in my opinion is not unusual for a person who suffers Depression. She actively tries to avoid issues that may be traumatic for her. She has been aware of Mr Hill’s travels through the criminal justice system and she acknowledged that the various proceedings have caused her serious psychological difficulties.
I have some considerable concern about Ms Benson’s ability to cope should Mr Hill be incarcerated. She is not endowed with psychological fortitude. However she does have a reasonable intellect but as indicated in Dr Baker’s report, she is impulsive. That is reflected particularly in her attempts at suicide.
At the time of my interview with Ms Benson while she indicated that she could not consider suicide because of her young daughter, it is my experience that though such a factor remains active, it does not at all times have sufficient deterrent impact on Depression.
I have some difficulty, therefore reconciling Ms Benson’s wellbeing with the absence of Mr Hill. She is easily overwhelmed and certainly would have difficulty running the business. Indeed she indicated that she believes it would fail. She believes in addition she would be inadequate in being solely responsible for her daughter and his three children. In the presence of such feelings of inadequacy the issue of her Depression would be a paramount concern, particularly noting her history that she has included a number of suicide attempts as documented.
The absence of Mr Hill is already a concern for Ms Benson. The anticipation is causing a return of some of the symptoms of the Depression that has plagued her for many years and so she avoids any thought of this aversive situation.”
24 I also note the medical material pertaining to Rochelle Hill (your youngest child of your first marriage). In particular, she has been diagnosed to be suffering from an eating disorder and hypophosphatemia. She has also been treated by the psychologist, Ms Anita Hermans, for various issues in the context of Depression.
25 I have read the various references which highlight your commitment to family and friends.
Conclusion
26 You have pleaded guilty to three offences, all of which involved violence. In particular, the charge involving aggravated burglary carries a maximum penalty of twenty-five years’ imprisonment, and Charge 2, involving recklessly causing serious injury, carries a maximum penalty of fifteen years’ imprisonment.
27 You appear in this Court with no criminal record prior to this offending and furthermore, I have been informed that you are not the subject of any offending since these offences. I accept that you have been a person who has been committed to family – both your adoptive family and your present extended family. Furthermore, I accept that you are a person who has contributed to the community by your activities in car racing, the conduct of your business and assisting people both financially and with moral support when required.
28 I accept that the offending was prompted initially in part, by being upset about the death of your nephew through drug overdose for which you blame the complainant, Patterson, and in part, various comments made by Patterson which you took to be mocking you and involving intimidation of your wife. On the day of the offending, I accept that you had been at your sister’s residence – the mother of Dean Holland – and had had some alcohol, but I doubt that alcohol played a significant role in prompting you to commit the offences.
29 I consider that the appropriate considerations include denunciation of such violent acts, together with general and specific deterrence. I do accept that specific deterrence in your case is not of paramount importance, given the opinion of Mr Joblin, which I accept, that you are neither psychopathic nor suffer from any disorder of impulse control such as an Intermittent Explosive Disorder. Mr Joblin describes the offending being based on “passion”.
30 Furthermore, as submitted by your Counsel, I consider that there are strong mitigatory factors present in considering an appropriate sentence. I accept that you pleaded guilty at the first possible opportunity to these offences and furthermore, have experienced genuine remorse for your actions. As I have already stated, prior to this offending, you have demonstrated yourself to be a committed member of the community and involved in family life.
31 Although it was not submitted to me in a formal way, I have considered whether the medical material in relation to your wife, Ms Sarah Benson, and the medical material pertaining to your daughter, Rochelle Hill, constitutes third-party hardship to be taken into account if incarceration is to be imposed. I refer to Markovic v R; Pantelic v R [2010] VSCA 105 where a Court of Appeal consisting of five appeal justices confirmed that the established common-law position should be reaffirmed, that is, unless the circumstances are shown to be exceptional, family hardship is to be regarded as a sentencing consideration. On the basis of the present material, I am not persuaded that exceptional circumstances have been made out either in relation to your wife and your daughter.
32 I also refer to Hogarth v R [2012] VSCA 302, wherein the Court of Appeal made general comments as to appropriate sentencing in relation to aggravated burglaries – perhaps more particularly what is commonly referred to as a “home invasion”.
33 In the circumstances of this matter, I can draw no other conclusion other than you attended the premises of Patterson armed with a piece of pipe or something of a similar nature, and as you stated in your record of interview:
“I just ran him straight down into his lounge room and got him onto to the ground and kicked the frigging crap out of him.”
Later, when the second complainant, Morland, intervened, you grabbed him by the throat and commenced to strangle him, and this continued until he lost consciousness.
34 Given that you did take a steel pipe to the premises and saw fit to be accompanied by two others, I consider that there was a degree of planning about your activities on that day.
35 The community will not tolerate such violence, notwithstanding your motives for precipitating such violence. It can never be that people can take the law into their own hands.
36 I consider that the only sentencing disposition, given the nature of offending, is an immediate period of imprisonment. However, because of the strong mitigating factors to which I have referred, and in particular your positive unblemished past, I consider that the community is best served by a shorter period of immediate imprisonment and a longer parole period under the supervision of the Parole Board.
37 Accordingly:
(a) In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of twenty-four (24) months;
(b) In relation to Charge 2, you are convicted and sentenced to a period of imprisonment of twelve (12) months, four (4) months of which is to cumulate with the sentence imposed on Charge 1;
(c) In relation to Charge 3, you are convicted and sentenced to a period of imprisonment of six (6) months, with two (2) months of such sentence to cumulate with the sentence imposed in relation to Charge 1;
(d) The total effective sentence is thirty (30) months, and I order that you serve a period of twelve (12) months’ imprisonment before becoming eligible for parole;
(e) Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty, I would have sentenced you to a period of three years’ imprisonment in relation to Charge 1, a period of eighteen months’ imprisonment in relation to Charge 2, of which nine months would cumulate with the sentence imposed on Charge 1, and in relation to Charge 3, a sentence of twelve months, of which four months would cumulate with the sentence imposed in relation to Charge 1. The total effective sentence would be forty-nine months, of which you would be required to serve twenty-four months before being eligible for parole;
(f) I also order, pursuant to s464ZF of the Crimes Act 1958, that a sample be obtained for forensic purposes.
COUNSEL: If Your Honour pleases.
HIS HONOUR: Yes, anything to raise, gentlemen?
COUNSEL: No, Your Honour.
HIS HONOUR: Yes. I will allow the members of the family to speak to the accused before being taken out.
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