Director of Public Prosecutions v Hilsdon
[2021] VCC 1478
•1 October 2021 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR-20-01464
Indictment No. L10612248.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON HILSDON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Geelong (for arraignment) 12 July 2021 | |
DATE OF PLEA HEARING: | 13 September 2021 (in Melbourne) | |
DATE OF SENTENCE: | 1 October 2021 (in Melbourne) | |
CASE MAY BE CITED AS: | DPP v Hilsdon | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1478 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Indictment No. L10612248.1 – one charge of contravention of order intending to cause harm or fear for safety – one charge of armed robbery – pleas of guilty – domestic violence
Legislation Cited: Family Violence Protection Act 2008, s123A(2); Crimes Act 1958, s75A; Sentencing Act 1991
Cases Cited:Director of Public Prosecutions v Hilsdon (Ruling No. 1) [2021] VCC 901; Luciano v R [2015] VSCA 173; R v Swift (2007) 15 VR 497; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; Lizsczak v R [2017] VSCA 313; Shau v R [2020] VSCA 252; R v Pham [2005] VSCA 57
Sentence: Total effective sentence of 3 years imprisonment with a non-parole period of 2 years imprisonment; 570 days of presentence detention declared and deducted from the sentence; disposal order; 6AAA declaration – four years imprisonment with a non-parole period of 2 years 7 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr N. Sturges | Chester Metcalfe & Co |
HIS HONOUR:
1Cameron Hilsdon, on 12 July 2021 at Geelong, on Indictment No. L10612248.1, you pleaded guilty to the following offences:
Charge 1 ꟷ that you, at Wensleydale in Victoria on 5 March 2020, having been served with a family violence intervention order, or having had an explanation of the order given to you in accordance with s96(1) of the Family Violence Protection Act 2008, you contravened that order knowing that your conduct would probably cause apprehension or fear in the protected person for her own safety.
Particulars
(a) the family violence intervention order was issued at the Geelong Magistrates' Court on 3 December 2019;
(b) the order was served on you by Senior Constable Goullet on 7 December 2019;
(c) the protected persons under that order are Cathy Wallace[1] and Roxanne Wallace[2];
(d) the conduct contravening the order was committing family violence against Cathy Wallace by threatening to kill Cathy Wallace while armed with an axe at Wensleydale in Victoria on 5 March 2020.
Contravention of an order intending to cause harm or fear for safety is contrary to s123A(2) of the Family Violence Protection Act 2008 and carries a maximum penalty of five years' imprisonment.
Charge 2 ꟷ that you, at Wensleydale in Victoria on 5 March 2020, robbed Cathy Wallace of certain property, namely a gold opal ring, and at the time had with you an offensive weapon, namely an axe.
The offence of armed robbery is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment.
[1]A pseudonym.
[2]A pseudonym.
The circumstances of the offending
2During the plea hearing, counsel for the prosecution tendered two documents: a document headed 'Summary of prosecution opening for plea', dated 26 August 2021 (Exhibit 1) and a document headed 'Prosecution submissions on sentence', dated 12 September 2021 (Exhibit 2).
3I was informed by your counsel that you agree with the contents of the 'Summary of Prosecution Opening for Plea. In particular, I note the following and I do this by dot point:
· You were born in July 1974 and accordingly are 47 years old. You were aged 45 years old at the time of the subject offending.
· The victim, or the complainant in this matter, is Cathy Wallace, who was 40 years of age at the time of the subject offending.
· You and the complainant had been in an intimate relationship since July 2016. The relationship was tumultuous, resulting in periods of time when you and the plaintiff were not involved in a domestic relationship due to incidents of domestic violence and there have been numerous assaults of the complainant and intervention orders taken out against you by the complainant.
· On 3 December 2019, a final family violence intervention order was issued by the Geelong Magistrates' Court, whereby the complainant was one of two affected family members and you were the respondent. The order contained a number of conditions, including that you were not to commit family violence against the complainant and not intentionally damage any of her property. That order was served on you on 7 December 2019.
· In February 2020, you and the complainant were homeless and living in a silver Nissan Patrol with a rooftop tent and staying on various sites along the Geelong surf coast.
· On or about 3 March 2020, you and the complainant set up camp at the Hammond North camping ground in Wensleydale located in the Otway Ranges, about 25 kilometres west of Anglesea.
· When at the campsite, you and the complainant used the drug “ice” and by 4 March 2020 the complainant wanted to cease taking ice. However, you wanted to keep taking such drug, and so you both travelled into Geelong to obtain some. You had been drinking during that day, causing you to yell and behave aggressively, but on returning to the campsite you took some ice and “settled down”, apologising to the complainant for your behaviour.
· On 5 March 2020, the complainant and you had both used ice but ran out, and you started “binge drinking” and arguing with the complainant, despite her trying to calm you down. Due to running out of ice, you took some strong pain medication instead, which was setting you “off”.
· At approximately 5.30 pm on that day, you and the complainant went for a walk and upon returning to the campsite you began behaving aggressively, again telling the complainant that you “didn't think [you] should be together” and that the complainant was a “crack whore”. This “fired up” the complainant, but she “pulled her head in” and only stood up to you “a bit”.
· When the complainant did this, you told her to “shut up” and not to “fucking talk to [you] like that as she knows how wild it gets [you]”. Despite the complainant telling you to “be quiet” so you could “have some time out”, the argument escalated and you telling the complainant “I'll cut your fucking head off and you won't be fucking walking out of here. You'll be buried here”. As you said this, you grabbed an axe and started walking towards the complainant, who got out of her chair and started to run (Charge 1- Contravene Family Intervention Order with intention to cause harm/fear).
· You caught up with the complainant and threw her into the ferns while pushing the handle of the axe across her upper chest. When you did this, the complainant tried to defend herself by clawing your face, telling you, “Please get off. please stop”.
· You then told the complainant to give your mother's opal ring back that the complainant wore on her ring finger, having been given it by your mother. You then ripped the ring off the complainant's finger and she told you, “Take it” (Charge 2- armed robbery).
· You then got off the complainant and told her, “sit down and shut up”, but the complainant told you that she “had enough of this and was done”. The complainant picked up her belongings and walked away from the Nissan Patrol into the bush.
· When walking in the bush, the complainant was yelling out for help and at some stage she was able to obtain phone reception and called Triple 0, telling the operator that you were coming at her with an axe but was unable to say precisely where you were in the bush.
· At approximately 9.00 pm, the complainant saw a car in which there were two men and waved down that vehicle, describing to them the fight she had with you and what had happened, involving being attacked with an axe but not hit with it. Shortly after that the vehicle in which the complainant was in passed a police car, it was hailed down, and she reported your actions to the police.
· On Tuesday, 10 March 2020, police attending a campsite situated along the Murray River located the silver Nissan and arrested you. An axe was found outside the silver Nissan and an opal ring in a small safe that had been wrapped in a bandage.
· You were transferred to the Mildura police station where, at 12.12 pm, a record of interview was conducted with the assistance of an independent third person. During the record of interview you made numerous comments implying that the complainant was lying and that she was 'setting [you] up'. In particular, I refer to the following questions and answers:
'• Q26 to 48 and 99 to 103 and 114 to 119 and 165 to 179 and 757 to 763 – That they had been arguing for a few days about travelling and splitting up and had been together for nearly four years and she is just a constant battle and she is an Ice addict and has been for 20 years and he doesn't use it and hasn't for 2 weeks and only has a little every now and then and she is not very nice when she's coming off it and they were going to get married but infidelities and stuff like that and he was going to take off and she took off through the bush with her suitcase and told him that he would pay for it and he just packed up and moved to Mildura
•Q 49 to 59 – That just before she took off he said Fuck off I've had enough of you and she said ‘You're a dog and you'll pay for this' and he thinks she saw it coming as things had disappeared from the car
•Q50 to 96 – That they had been there for three days and before that were staying at his mother's place for six months and were going to go around Australia and had bought the Nissan to do that and were decking it out
•Q125 to 149 and 222 to 233 – That he doesn't know where she went and was looking for her at the start and thought fuck, just pack up and go and see his mates but he stayed the night in the car but couldn't see her and he rang her the following day and she told him not to ring her and he hasn't spoken with her since
•Q183 to 184 – That he said he would pay for it and she has had him locked up before…same shit
•Q209 to 221 – That they had paid half each for the car but he told her that he wasn't doing this shit again when she went to put her name on the receipt so it's all in his name and some of her crap is still in the car
•Q224 to 230 – That his mother had taken her in like a daughter and they stayed there for three months and they love each other but they can't keep doing this
•Q301 to 320 – That he cannot remember anything about the argument other than she called him a dog and said he would pay for this and her walking off and nothing physical happened and she's not getting him done for that shit again and the night before she was up all night and sat on his face and wanted a root and he said Fuck off and was half asleep and the next morning it's funny how the paperwork and had went and it pisses him off as he loves the girl and he's in here and she should be as she's ripped welfare off and he's the bastard that gets into trouble because of that woman and it's not on
•Q324 to 358 – That he had woken in the morning and she had all prettied up and with make-up and he doesn't remember how the argument started and it could have been over anything and it doesn't matter what he says as it goes in her favour every time and his side doesn't matter and he knows the way the system works
•Q359 – That he doesn't really want to hear what she has said as it's all fuckin' bullshit
•Q485 to 537 – That he doesn't want to hear the whole statement and but it's fair enough that they were both using Ice and she'll have nothing good to say about him and he didn't touch Ice and she is the addict and she's a fucking angel and she's the one telling the story and he doesn't know about this angel of his and she liked tawny port so they had a few tawny ports and but he didn't know that it was that day as they were possibly drinking the day before which would be why he was passed out and she was sitting on his face when he woke up
•Q538 to 563 – That he has taken strong pain killers for his back for a couple of months and it doesn't react with alcohol and she doesn't mind taking the medication and getting drunk on it and getting off her face on it when she has no Ice and he's not sure if she had taken it that day but she does have it most days
•Q565 to 600 – That they had been for a walk and she reads it all - writes it all out like she's a fuckin' fairy angel - fairy godmother, and I'm just this fuckin' drunken drug-addict fuck, you know and neither of us no angels and he told her to get her stinking bag of panties out of the car and leave them outside and that was all he said as they'd been in the car for a week and he had told her that he didn't think they should be together and called her a crack whore and hence she got back at him and put him through all this shit and he doesn't know where that he had told her to shut up came from.
•Q601 to 613 – That as if he had said I'll cut your fucking head off and he certainly did not say that but he did say "Fuck off, you crack whore," and, "It's over," and "I'm going round Australia, you can stick it up your arse, I'm going on me own' and hence all this bullshit and there was nothing physical
•Q613 to 644 and 808 to 820 and 894 to 895 – That as if he was going to come at her with an axe and is there any of her DNA on it, which is the one they located in the vehicle, as she had lived in his mother's house and loves that woman and was going to marry her and part of his family and when she doesn't get her way she spits it at him and he's the poor bastard that cops this shit and it's fucked and all of it didn't happen and it's all bullshit
•Q645 to 646 – That she would not have had time to grab her shit if he was coming at her with an axe and where are the bruises from the axe and it's all bullshit
•Q657 to 699 and 764 to 786 and 821 to 856 and 910 to 915 – That she had thrown the ring into the bushes and he can draw a diagram of where she threw it 20 metres into the bush/ferns and so he will have to find it when he returns back down there as he hasn't seen it since she threw it and (when a picture of the ring in the safe in the car is shown to him) maybe he did find it found it in the bush and that's not a crime that he found it and it was his mums ring that she has had for 30 years and was given to her by his father and his mum gave it to her a couple of months ago as she is part of the family and she had thrown all his shit in the fire and none of that was in his angels statement and he couldn't tell them if that all happened on the same night and she'll get on the fuckin' gin juice when she's got no fuckin' ice and she'll fuckin' have a couple of me pills and get high as a kite and he doesn't need to go through all that shit as he is not a dog and he had asked for the ring back at one stage and she took it off and threw it into the bush and he hasn't seen it since and all this seems like a waste of police time
•Q699 to 725 – That it's fucking funny that he just let her walk off after chasing her with an axe and what a waste of time and he did not assault her and did not touch her and he has an axe with a wooden handle and a chainsaw and he keeps it on the back of the truck
•Q726 to 731 - That the only reason that he asked for the ring back is because he thought she was going to hock it for crack and they were arguing
• Q734 to – That he is aware of the IVO to commit no violence being in place and no violence has been committed and it's been in place for 5/6 months and it was delivered to him and he understands that the IVO is active'
4At the conclusion of your Record of Interview, you were remanded in custody. I was informed by counsel for the prosecution that as at 13 September 2021 there had been 553 days of pre-sentence detention. Counsel for the prosecution also set out a chronology recording various events from the date of the offending – 5 March 2020 – up to where the matter resolved to a plea of guilty – 9 July 2021.
5Counsel for the prosecution also sought a Disposal Order in relation to the axe, which was not opposed by your counsel.
6When counsel for the prosecution read the prosecution opening for plea (Exhibit 1), I queried whether you were standing (or sitting) astride the complainant, pushing the handle of the axe across her upper chest at the time of the robbery. Some of the words used in the opening could be construed to give such a meaning. After discussion with the parties, and indeed your counsel checking the various relevant depositions, it appears more likely you were standing next to the complainant (not astride her), bending over and holding the axe across the upper part of her chest.
Your criminal record
7Counsel for the prosecution tendered your criminal record, dated 25 June 2021 (Exhibit 3). I refer to such report and note the following:
(a) On 13 July 2009 at the Geelong Magistrates' Court you were found guilty of wilfully damaging property and failure to answer bail and, without conviction, the matter was adjourned to 14 January 2010 and you ordered to pay $200 to the court fund;
(b) On 17 January 2017 at the Geelong Magistrates' Court you were found guilty of recklessly causing injury, making threat to kill and unlawful assault and was sentenced to an aggregate 34 days' imprisonment, being the time held in custody;
Also on that date you were found guilty and convicted of persistently contravening a family violence order, unlawful assault, contravening a family violence safety notice and failure to answer bail and sentenced to a 12-month community correction order, commencing on 19 January 2017. Beyond the core conditions, such order contained the following conditions: supervision, treatment and rehabilitation in relation to drugs, alcohol abuse and mental health assessment. Further, you were ordered to undergo any treatment or rehabilitation in relation to programs to reduce the prospects of reoffending;
(c) On 12 February 2018 at the Geelong Magistrates' Court you were convicted of theft from a shop, failure to answer bail, driving while authorisation suspended, commit an indictable offence on bail, persistently contravene a family violence order, assault emergency worker on duty, resist emergency worker on duty and sentenced to an total aggregate period of six months with 71 days declared as imprisonment already served under that sentence;
Also on 12 February 2018 at the Geelong Magistrates' Court you were found guilty of contravening a community correction order made on 17 January 2017 and convicted and sentenced to a further community correction order for 24 months, commencing when you were due to be released from prison, and containing the same conditions as the earlier community correction order;
(d) On 10 April 2018 at the County Court sitting at Geelong appeals were allowed in relation to the sentences involving assaulting emergency worker on duty, resisting emergency worker on duty, persistently contravening family violence order, failing to answer bail, committing an indictable offence whilst on bail, theft from shop and drive while authorisation suspended, and resentenced to various fines and also sentenced to a period of imprisonment of three months, with a declaration you had served 128 days by way of pre-sentence detention;
(e) On 26 January 2019 at the Geelong Magistrates' Court you were convicted of failing to answer bail (re 10 April 2018), unlawful assault, persistently contravene a family violence order, contravene family violence safety notice, recklessly causing injury, contravene family violence intervention order and recklessly causing injury, and sentenced to a total effective sentence of nine months' imprisonment, with 115 days declared as pre-sentence detention.
Victim impact statement
8Counsel for the prosecution sought to read and then tender a Victim Impact Statement declared by the complainant on 6 September 2021 (Exhibit 4). Prior to the reading of the statement your counsel objected to such course on the basis that certain parts of the statement- in particular paragraph 1- were inadmissible. Furthermore, some words used in paragraphs 5 and 6 were also objectionable on the same basis.
9The basis of the objection was that the complainant in making the victim impact statement was not isolating the impact of the subject offending but rather describing the impact of consequences brought about by domestic violence experienced by her during her overall relationship with you.
10On 25 June 2021 there was a pre-empanelment argument as to whether or not the prosecution could rely on tendency evidence. On 6 July 2021 such a ruling was made in favour of the prosecution – see Director of Public Prosecutions v Hilsdon (Ruling No 1) [2021] VCC 901.
11The tendency sought to be relied on by the prosecution was based on the following:
(a) domestic violence occurring on 26 September 2016, as recorded by LEAP extract 160342030, involving the informant Lister, which was heard at the Magistrates' Court on 17 January 2017;
(b) domestic violence occurring on 30 October 2016, as recorded in LEAP extract 160398309;
(c) domestic violence occurring in the period from 8 to 9 November 2016, as recorded in LEAP extract 160398309, involving the informant Washbourne, which was heard at the Magistrates' Court on 17 January 2017; and
(d) domestic violence occurring on 29 and 30 September 2018, as recorded in LEAP extract 180333901, involving the informant Ditcham, which was heard at the Magistrates' Court on 25 January 2019.
12Each of those incidents of domestic violence occurred in circumstances where you were charged with certain domestic violence offences against the complainant and pleaded guilty to the court summary of those offences in a Magistrates' Court (save for the domestic violence episode occurring on 30 October 2016).
13Section 5(2) of the Sentencing Act 1991 provides that in sentencing an offender, a court must have regard to a number of matters, including:
'(daa) the impact of the offence on any victim of the offence; and
…
(db) any injury, loss or damage resulting directly from the offence … ;'
14I also refer to Division 1C of Part 3 of the Sentencing Act 1991, which deals with 'victim impact statements'. Section 8K(1) of the Sentencing Act 1991 provides that if a person is found guilty of an offence, a victim of the offence may make a statement to the court for the purpose of assisting the court in determining sentence. In particular, s8L of that Act states:
'(1) A victim impact statement contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence.
…
(3) The court may rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it.
(4) It is the intention of Parliament that in interpreting and applying this section, courts have regard to the following—
(a) the victim impact statement allows the victim to tell the court about the impact of the offence on the victim;
(b) the victim impact statement is not inadmissible merely because it contains subjective or emotive material.
(5)The court may receive the whole of a victim impact statement despite—
(a) an objection being taken to the statement or part of the statement; or
(b) the statement containing inadmissible material.
(6) If the court receives a victim impact statement that contains inadmissible material, the court, in sentencing the offender—
(a) is not to rely on the material that the court considers to be inadmissible; and
(b) need not specify which of the material is not being relied on.'
15Relevant authority indicates that defence counsel is obliged to refer to inadmissible aspects of a victim impact statement before it is read out or produced in court (see Luciano v The Queen [2015] VSCA 173 at paragraph [10]; R v Swift (2007) 15 VR 497 at paragraph [18]). If defence fails to object to such admissible aspects of a victim impact statement, the prosecution may alert the court of such inadmissible evidence to prevent such a sentencing error.
16After reading the Victim Impact Statement, I do accept that perhaps understandably, although impermissibly, the complainant describes in the first paragraph the overall consequences resulting from effectively her relationship with you over a number of years.
17I refer to Exhibit 2 – that is, the document headed “Prosecution Submissions on Sentence”, wherein counsel for the prosecution submits that the contents of the victim impact statement is admissible and, in particular, submits:
'As the court is aware, there were numerous instances of violence perpetrated on the victim by the offender during the course of their four-year relationship.
'The offending the subject of Charge 1 is the offender walking towards the victim, holding an axe and saying, "I'll cut your fucking head off and you won't be fucking walking out of here. You'll be buried here'". This act, given previous proven instances where the offender has physically assaulted the victim, which were sufficiently serious to warrant terms of imprisonment being served, is a serious example of this offence.
'In circumstances where the offender has previously served periods of imprisonment for having committed physical violence against the victim, and for numerous breaches of intervention orders, it is submitted that the previous physical injuries suffered by the victim are relevant in relation to Charge 1 on the indictment. This offence is committed when the offender is aware that his conduct would probably cause the victim apprehension or fear for her own safety. In circumstances where the victim has previously sustained serious injuries (as in more than bruises or abrasions), it is submitted that those injuries are highly relevant and put the current offending in context.
To not view the contents of the victim impact statement in this light would, with respect, affect both the seriousness of the offence and the assessment and applicability of the relevant sentencing principles, specifically specific deterrence and denunciation of this conduct'.
18I refer to the Court of Appeal decision of York (a Pseudonym) v R [2014] VSCA 224), wherein the Court of Appeal (consisting of Priest and Kyrou JJA) stated at paragraph 26:
'The victim impact statement under consideration contained nothing of relevance concerning the impact of the appellant's offending. It was not legitimate for the judge to take it into account as providing "background and setting a context". It was — and should have been seen to be — inadmissible in the case against the appellant. The judge should have so ruled. Further, the judge should not have permitted any part of it to have been read aloud. It is plain, in our opinion, that the irrelevant and inadmissible victim impact statement infected the exercise of the judge's sentencing discretion'.
(Footnote omitted)
19In such circumstances, I reject the submission of counsel for the prosecution that paragraph one in particular and other parts of the victim impact statement are admissible because they set a 'context'.
20Accordingly I do find that paragraph 1 of the victim impact statement is inadmissible as, clearly enough, the reference to various injuries suffered by the complainant are references to events which occurred earlier than the subject offending.
21I also consider that paragraph 6 of the victim impact statement is inadmissible, as the complainant appears to be describing the loss of a relationship with her daughter, which commenced from at least the beginning of the relationship and over the years of the relationship until it came to an end with this offending. Paragraph 5 is perhaps not as critical, although the complainant appears to blame 'the abusive relationship' causing the lost connection with her family. In this sense, I accept that the subject offending has played a role in that, although it is an overstatement that the subject offending has caused the lost connection completely with her family.
22Counsel for the prosecution read the Victim Impact Statement absent, paragraph 1 and 6, on the basis I indicated to the parties that I would reserve my decision as to whether those paragraphs were admissible. On the basis of what I have already stated, I consider such paragraphs to be inadmissible. I set out the statement in its entirety but have highlighted paragraphs 1 and 6, which were not read. Ultimately I came to the view that some value judgement must be made to balance the purposes of a victim impact statement in circumstances where that statement, on occasion, extends beyond the subject offending.
'The major effects of this crime are ongoing and numerous. The injuries I was left with caused a great deal of pain; a broken cheek bone, a dent in my forehead, cuts on my fingers which have scarred and a scar on my eyebrow. The scars are a daily, stark reminder of the aggressive way I was assaulted. I have endured major, ongoing headaches from the head trauma and my memory has been significantly affected and is now very poor.
I have felt scared most of the time, jumpy and extremely anxious. I find myself looking over my shoulder, fearing an attack or planning to defend myself has been a daily struggle. I lost all confidence in myself, even though I was a qualified dental nurse and fully functional person before all this.
I was left an empty shell, I felt like I was nothing. His words haunted me, telling me I was a slut and a whore. That it was my fault my family did not talk to me. The damage this treatment has done is not measurable, it has left me with a mountain to climb the size of Everest. The effort each day has taken, just to get through, just to take one step towards recovery, it is something I don't feel I can describe with words.
After the relationship ended I had nothing. I had lost my job, my home, my car which I had spent $6,000 on. I was completely homeless, I had no furniture or appliances, my belongings had been stripped from me. I felt used and abandoned, like I was trash to him. I did not know who I was anymore.
Throughout the abusive relationship I lost connection to my family - literally all of them. My relationship with my siblings was decimated, I had no friends, I lost relationship with my colleagues and, most gut wrenching, I lost connection to my children.
I missed watching Roxanne grow up, six years of her childhood has been stolen from me and I feel completely robbed of being her mum through those years. My relationship with Josh[3] was majorly damaged. The grief I experience over this is indescribable and I cry about it a lot. I feel guilty and ashamed for missing those years. I can't get that time back.
To manage the trauma I made a lot of very poor health choices which I will have to work on recovering from for the rest of my life. •
I have had to work very hard over the last 17 months to recover, I have not been able to work during this period purely because it has taken a 24/7 approach for me to gain back my worth and function. I have had to work very hard to re-establish connections with family and especially my children whom I am so blessed to be able to reconnect with.'
I have emphasised paragraphs 1 and 6, which were not read in open court.
[3]A pseudonym.
Your educational, work and social background
23Your counsel tendered the following documents:
(a) a document headed “Submissions on behalf of the accused” dated 9 September 2021 (Exhibit A)
(b) a report from the consultant psychologist Ms Gina Cidoni dated 5 March 2018 (Exhibit B)
(c) a bundle of references from:
-Ms Sylvia Halesworth of the Pelican Shores Estate, Leopold, Victoria, undated
-Mr John Hilsdon, your father, undated
-Ms Margaret Daniel dated 3 April 2021
Collectively I refer to those references as Exhibit C.
24Partly on various submissions made by your counsel, and partly on the documents to which I have just made reference, I note the following:
· You were born and raised by your parents in Geelong until aged nine, after which the family then located to the United Kingdom, later returning to Melbourne. You have two older brothers, namely John and Mark.
· Your parents separated in about 2013 following your father's relationship with Catherine Cattanach. Your father worked as a bricklayer, and your mother conducted home duties.
· You attended Freshwater Creek primary school, just outside Geelong, from Prep school to Grade 6, and thereafter spent one and a half years at school in England, following which you had no further education.
· On returning to Australia with one of your brothers, you lived in Torquay. You worked alongside your father as a bricklayer on and off for 12 years and also worked as a labourer, tiler, plasterer, painter and concreter. You have experienced periods of unemployment and when seen by Ms Cidoni on 5 March 2018 you had not worked for four or five years.
· At age fifteen you befriended Cindy and ultimately commenced a relationship at age 20 and were married for about eight years. You had no children during that relationship and you moved to the Sunshine Coast in Queensland for three or four years after the relationship ended. You then reunited with Cindy and lived in Sydney for two years and together you moved to Foster and Lakes Entrance for a few years.
· After the relationship with Cindy ended, you met the complainant when you were both undergoing substance-abuse residential treatment in or about late 2015. You then commenced living with the complainant and her nine-year-old daughter in Belmont in public housing. You and the complainant lost the house, and the complainant lost care of her daughter, and both you and the complainant lived in your car at the Murray River.
· At the time of your interview with Ms Cidoni, the complainant was undergoing residential rehabilitation for methamphetamine addiction.
· When you were about seven months old you were injured by a horse at a rodeo and, although uncertain about the exact events, commented to Ms Cidoni that you were hospitalised and had sustained a head injury. Also, at age six you were knocked unconscious in a motor vehicle accident coming home from Mildura.
· Furthermore, you reported to Ms Cidoni that you fractured your spine as a result of a motor vehicle accident when you were 25 and generally reported lower back pain from bricklaying and sore shoulders, elbows and hands, from other construction work. Also in 1998 you were king hit from behind at a Geelong hotel, resulting in a split to your forehead and a fractured nose and you were treated at the Geelong Hospital.
· As a child you were sexually abused by your older brother on several occasions when you were residing in Geelong. According to what you told Ms Cidoni, that brother threatened to kill you if you told anyone about the abuse. You reported to Ms Cidoni that the onset of substance abuse helped you forget such abuse and you frequently contemplated suicide but never made any attempts.
· In 2002 you were admitted to the psychiatric unit at the Geelong Hospital for about two weeks. This was shortly after the time your relationship with Cindy broke down. You were prescribed olanzapine (an antipsychotic) to treat bipolar disorder that was diagnosed at the time. You were also prescribed sertraline antidepressant from about 2012 and at the time of your consultation with Ms Cidoni were still taking such drug.
· Again you told Ms Cidoni in 2018 that you had consumed alcohol daily for 15 years and in particular throughout 2017 you were consuming 1.25 litres of whiskey on a daily basis. You had used cannabis since your teens daily until 15 years ago. You also used methylamphetamines with the complainant and on occasion also used cocaine and ecstasy. When living in England you were using LSD, cocaine and hashish.
· You informed Ms Cidoni that there were three periods of substance abuse treatment, but you were unable to sustain abstinence upon discharge, except at 39 you did not drink for 12 months. You also attended AA meetings and felt that attending church helped you abstain.
The evidence of Ms Cidoni
25The consultant psychologist, Ms Gina Cidoni, interviewed you via a video-conference link at the Fulham Prison on 5 March 2018 at the request of your then solicitors. At that time, you had been charged with various offences including driving a motor vehicle while your licence was suspended and more particularly persistent contraventions of a family violence intervention order where the applicant of such order was Catherine Cattanach, your father's partner.
26At that time it was alleged that you attended her house on 17 October 2017 and 3 December 2017, and on both occasions you verbally abused her. Furthermore, on the second occasion you also drove past her home and did “burnouts” in your car. You were also charged in relation to assaulting an emergency worker on 3 December 2017 and resisting police. You informed Ms Cidoni that you were having difficulties with your father's new partner, based on your belief that this woman was instrumental in the dissolution of your parents' marriage.
27Ms Cidoni employed various psychological testing. At that time, Ms Cidoni was of the opinion:
'Intellectual testing was incomplete due to the video conference setting. The subtests conducted indicated borderline intellectual function that is in keeping with his low level of education. Mr Hilsdon also reported a number of events in his life that may have resulted in an acquired brain injury. He reported this diagnosis was made when he was a young child. His abuse of substances has also been excessive over the years. His medical records weren't available at the time of interview and further assessment is recommended. The presence of an ABI has a profound effect upon memory, interpretation of events, self-monitoring and impulse control. If this is the care [sic] with Mr Hilsdon this may in part, explain his behaviour.
'His level of substance abuse has been excessive and is directly related to the offending in that he was intoxicated and his drinking especially has interfered with his living skills, employment and relationships.
'He reported a downturn of mental health resulting in a psychiatric admission at age 28 with report of a diagnosis of bipolar disorder. He reported child sexual abuse trauma that has gone untreated. He showed signs of PTSD and mildly unstable mood. These symptoms are disabling and impact greatly on his quality of life.
'He expressed appropriate remorse with respect to the offending. He was affected by alcohol mainly and this would have made him disinhibited. He understands that the offending behaviour was wrong (including the theft and driving matter) and although his relationship with his stepmother is burdened, he acknowledged the adverse effect of his behaviour upon her.
'Professional counselling is recommended to assist Mr Hilsdon to work through his traumas and emotional reactivity. A psychiatric opinion as to the management of his mental health conditions may also be helpful'.'
28It should be noted that although your counsel sought the report of a neuropsychologist in relation to whether or not you suffer from any acquired brain injury, the court was subsequently advised that there would be no reliance on such report as it did not supply any evidence of any acquired brain injury consequences.
29Your counsel expressly disclaimed any reliance on the so-called principles set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
References
30In her reference, Ms Sylvia Halesworth describes how she has always found you to be very considerate. You have helped her since she broke her ankle. In particular she describes you as very polite and nothing is too much trouble for you.
31In her reference, Ms Margaret Daniel describes herself as a long-term family friend of your parents, who she first met in the United Kingdom. The friendship became stronger when your parents emigrated and shortly after she and her late husband came to Australia in 1967.
32At that time she notes the family were living at Freshwater Creek, Victoria and you were a very shy, timid young child. Later, when your parents returned to the UK, you were 11 years old, and you had become very interested in bicycle riding, and went on to become a “champion rider”. She describes that when she went to visit and stay with your family she had the privilege to go and watch you ride in an event and she was very proud of you.
33She notes that in 1991, when you were 17, you returned to Australia and lived with your brother John and later you met Cindy and got married. She notes that 'sadly' the marriage did not last and eventually you turned to addiction. She reports that you turned to her for advice and you would contact her to tell her how remorseful you felt and how you wanted to “clean up your act”. In particular, she recalls that:
'It was during this time that he told me about the trauma he had suffered as a very young child and how it had affected him and his way of thinking. He was desperate for help. He would phone me often and he came to stay with me and my husband on several occasions. At one point he joined a respected church group and for quite a long time he was doing really well. He always listened to me and he wanted so badly to live a better life'.
34Ms Daniel also notes that during rehabilitation for your addiction you met the complainant.
35She notes that you have treated her, that is Ms Daniel, with great respect and you are a caring person. You have helped her a great deal, putting in a vegetable garden for her, replastering walls, painting, repairing, laying pavers, cleaning windows et cetera. You are a hard worker, achieve great results and can put your mind to just about anything you need to do.
36In particular, she notes that you have told her on many occasions that you want to live a clean, healthy life and she believes in the right circumstances you can do this.
37Ms Daniel states that she has no hesitation in saying that you have the ability to go on and have a good life if you are given the opportunity and the support of a strong community group in which you could find trust in yourself and others.
38Finally, I refer to the reference from your father, John Hilsdon, wherein he notes that when you were growing up you loved the outdoors and the bushland. You loved to roam around the area at Freshwater Creek. He notes that you and your brothers grew up in an ideal location and had a wonderful childhood, but he did notice that, as you grew older, your brother Mark would sometimes have a threatening attitude towards you. He also comments that on recently looking at a school photograph of your class taken in 1982, you were the only child not smiling.
39Your father notes that in August 1986 the Freshwater Creek property was sold and the family returned to England, living on the outskirts of London. At that time you were 12 years of age and had a difficult time adjusting to the English education system. However, because you were so adept and well-adjusted, he and your mother decided that your mother would teach you from home.
40In England, you became a keen cyclist and were a very competent junior-grade racing cyclist, especially on the velodrome, where you excelled. Although you got on very well with your brother John, your father always noticed some distance between you and your brother Mark.
41In 1990, your father notes, you were sixteen when you decided to return to Australia. At that time you had received compensation from an earlier car accident involving the family and also had saved money. Your father notes that when he and his then wife returned seven months later you had started smoking marijuana and were in a financial position not to work. Cycling was abandoned. Over the following years your drinking and drug abuse got worse. You needed to work and had sold your bikes to feed your habit.
42On moving to Queensland, it was there, after a family argument, that the family was informed by your girlfriend that your brother Mark had sexually abused you as a child. Your father notes that he and his wife were totally devastated.
43Your father notes that his own relationship with his wife deteriorated, giving rise to a divorce, and that his current partner has had many conversations with you about the prolonged sexual abuse that you suffered as a five-year-old boy at Freshwater Creek. In particular, you described in detail some of those events and how devastating the effects still are for you today.
44Your father also notes that over the years you and he argued many times, due to your drinking and marijuana use, but you were never truly violent towards him until you met the complainant and the ice addiction began. Only then did you threaten violence and become completely erratic and reckless. He describes the change in you as 'immense'.
45Finally your father states:
'Over the years I have seen what has happened to my beautiful boy who had so many friends, such a beautiful nature, a wonderful sense of humour, a love of animals and the high esteem of so many and such a promising career. I know that beautiful person is still there if he would only allow him to emerge and forgive himself for events that he had no control over'.
Matters put in mitigation by your counsel
46Initially, your counsel, although acknowledging that the courts have repeatedly emphasised the need to denounce and generally deter family violence, made the following general submissions as to the gravity of the subject offending:
(a) The incident giving rise to the subject offending was “spontaneous and unplanned”, with no suggestion of premeditation or planning;
(b) It was your intention to obtain your mother's ring from the complainant. Although it was submitted that this may be viewed as a 'misplaced and entirely inappropriate means of retrieving an important piece of property', it does provide some context and insight into your conduct on that afternoon;
(c) The weapon used at the time of the offending was an axe. Such implement was in the possession of both you and the complainant for the purpose of camping. It was not a weapon which was obtained for the purpose of committing the offence;
(d) Although, “unfortunately”, this was yet another example of violence by you against the complainant, it did not involve physical violence which led to injury or the need for treatment;
(e) After the subject offending, you did not flee to avoid detection. You initially returned to Geelong that evening before contacting the complainant and being told that she wanted nothing to do with you anymore. You then continued the agreed plan to travel to Mildura, where you were ultimately arrested.
47Your counsel also noted that although some of your prior convictions are relevant it is to be noted that prior to meeting the complainant you had only one court appearance, in 2009, for wilful damage of property. You first went into custody at the age of 43. Your counsel describes your history following 2017 as 'concerning', noting that efforts to place you on community correction orders in 2017 and 2018 were ineffective due to your lifestyle at the time. Although noting that you have no prior convictions for weapons offences, your counsel does accept that you have relevant prior convictions for breaching intervention orders.
48In particular I refer to the following matters your counsel submitted were relevant in mitigation of your sentence:
(a) Your pleas of guilty
Your counsel noted that your pleas of guilty were made very shortly after the court delivered its ruling regarding tendency, to which reference has already been made. The ruling was handed down on 6 July 2021 and you, through your counsel, made an offer to plead guilty to the charges on the current indictment the following day. The prosecution accepted such offer on 9 July 2021.
While it was conceded that this was not an early plea, it was submitted that a plea did arrive immediately once the evidentiary ruling in the matter clearly articulated how the prosecution case would proceed against you.
In particular, your counsel submitted that your pleas of guilty in relation to the indictable offences are significant in each of the following ways:
(i)the pleas of guilty have significant utilitarian value in that the State has been saved the time and cost of a trial – in particular, it is to be noted that your pleas of guilty obviated the need for the complainant to give evidence and to relive the circumstances of the offending;
(ii)in particular, reference was made to Worboyes v R [2021] VSCA 169, a very recent decision of the Court of Appeal, where the court stated, concerning pleas of guilty:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'. (Supra at paragraph [35])
(b) Prospects of rehabilitation
It was submitted that your prospects of rehabilitation should be viewed as “good”. In particular it was submitted that prior to 2017 you only had one recorded matter and, despite dealing with significant issues, you had managed to remain offence free for much of your life.
It was further submitted that, over time, you have had periods of abstinence and stability, long-lasting intimate relationships and retained support of your family. Previously you had sought out treatment and attempted to address the underlying issues which have led to your substance abuse. It was submitted that this “previously demonstrated insight” is a relevant consideration and increases the likelihood of your rehabilitation.
Your counsel informed me that on his instructions you have not used illicit drugs when in prison for the last 18 months or so. Furthermore, it was intended that on your release from prison you would live with your mother, who has been supportive of you during your incarceration and has attended (with your father) your various court appearances by way of Zoom.
(c) COVID-19
Your whole period of remand has been during the COVID-19 pandemic. Such pandemic has had a significant impact on your life in custody, ranging from reduced contact with family to reduced programs and the anxiety and fear of contracting COVID-19 in a custodial setting. Furthermore, it was submitted that even of more recent times making arrangements and preparation for your plea hearing has been impacted, given the difficulty of arranging a neuropsychological assessment over a video link, which is not the preferred method for conducting such an assessment (as I have already noted, such assessment was undertaken and not relied on).
Furthermore, during your period of incarceration you have struggled with a back injury and have not worked due to your pain issues. In particular you have been prescribed Lyrica for ongoing pain symptoms in your back.
49Your counsel submitted that general deterrence and denunciation are relevant sentencing considerations in forming an appropriate disposition for you. It was submitted that although your past offending, both in relation to domestic violence generally and your breaches of earlier orders, would suggest that 'specific deterrence' should play a role in determining an appropriate sentence, it was submitted ultimately that 'specific deterrence has been met' through the onerous period you have spent on remand.
50It was submitted that the sentencing objectives can be achieved through a combination sentence involving imprisonment and a community correction order.
51Your counsel referred to the well-known decision of Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308 and noted that a combination sentence is appropriate in your matter for two reasons:
(a) first is flexibility as a sentencing option enables 'punitive and rehabilitative purposes to be served simultaneously' (see Boulton at paragraph [2]); and
(b) “the CCO offers the sentencing court the best opportunity to promote simultaneously the best interests of the community and the best interests of the offender and of those who are dependent on him or her” (see Boulton) at paragraph [115]).
52Your counsel further submitted that one of the benefits of a community correction order is that you will receive treatment and support to address the underlying reasons for your offending. If a community correction order was ordered, a tailored program with conditions aligned to treatment and support could be imposed, involving urine screens, supervision and judicial monitoring.
53Although not a matter of mitigation per se, your counsel also referred to the concepts of what are called “totality” and “parsimony”.
54The totality principle requires that when an offender is being sentenced to multiple terms of imprisonment, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains what is described as 'just and proportionate' for the whole of the offending. In your case you are going to be sentenced on two charges in respect of offending over a short period of time and the court must ensure that the total sentence remains 'just and proportionate'. In this respect I refer to Lizsczak v R [2017] VSCA 313, wherein it is stated that the discretion in respect of cumulation and concurrency is to be exercised mainly according to the following considerations:
(a) the totality principle which requires the aggregate sentence to be “just and appropriate in the circumstances”;
(b) the need to reflect on any overlapping criminality across sentences; and
(c) the predisposition towards avoiding crushing sentences.
55The concept of parsimony is applied in every case in which punitive sentencing requires the imposition of a custodial sentence. Section 5(3) of the Sentencing Act 1991 directs that the court is obliged to impose the shortest term of imprisonment consistent with the achievement of the relevant sentencing purposes.
56Your counsel also submitted that the court should accept your assertion that you were sexually molested by your brother when you were a child and this has been a factor 'bubbling under the surface' throughout your adult years, adding to the turmoil of your life.
57On balance, I accept that you were sexually molested by your brother in the past, although I have no particular details over what period of time this occurred and the nature of such abuse. However, although accepting that sexual abuse as a child can give rise to a variety of problems in later life, there is no particular evidence before the court of how such offending may have impacted upon you and in particular impacted on you in relation to the subject offending. Indeed, again it must be borne in mind that, as your counsel points out, you have experienced various periods of stability and it has only been from 2017 or thereabouts onwards that you have had your first experience in prison and have committed a variety of offences. Such a history in itself does not suggest a continuum over the years of any particular difficulty.
58Your counsel submitted that there should be a degree of concurrence between the two offences, given they are part of the one incident and occurred at approximately the same time.
The response of the prosecution
59Counsel for the prosecution referred to Exhibit 2 – that is, the 'Prosecution submissions on sentence' ꟷ and noted the following:
· The offending involving the armed robbery is a 'serious example of the offence' due to the following features:
ꟷ the breach of trust, in that the complainant was your partner
ꟷ the weapon used in the armed robbery was held against the complainant's upper chest, as compared to a weapon being brandished from a distance
ꟷ there was a Family Violence Intervention Order prohibiting you from committing family violence against the complainant.
· The contravention of a Family Violence Intervention Order “with the intention to cause harm or fear in this case is again, a serious example of that offence”. The conduct constituting the contravention involves you grabbing an axe and walking towards the victim, saying, “I'll cut your fucking head off and you won't be fucking walking out of here. You'll be buried here”.
· The act of grabbing in axe, a weapon of the same type you had previously threatened to use against the complainant, while uttering threatening words is a separate offence from using the axe to effect the armed robbery. It is 'clear from the victim's actions at the time' ꟷ that is, running away from you ꟷ that she was fearful for her life.
· You have two previous convictions for similar offending, as well as a further two prior convictions for persistent breach of a family violence intervention order.
· The subject offending occurred only seven months or so after you had been released from custody, having served approximately 10 months for violent offending against the same complainant.
· That there ought to be a degree of cumulation between the sentences on the two charges, given that general deterrence is important for both charges.
60Counsel for the prosecution accepted that the following mitigating factors apply in the circumstances:
(a) your pleas of guilty, albeit not at the earliest time;
(b) COVID-19 considerations;
(c) family support; and
(d) there are “reasonable prospects” of rehabilitation, providing that you can abstain from alcohol and drug use.
61In particular, counsel stressed that general deterrence is of significant importance in the sentencing disposition and reference was made to the decision of Shau v The Queen [2020] VSCA 252 at paragraph [47], whereat Niall JA stated:
'Next, the courts must respond to the blight of family violence by imposing punishment that denounces the conduct and adequately addresses general deterrence … However, there remains a very high public interest in punishing family violence, both for its denunciatory and deterrent effect, even where the victim seeks leniency and incarceration would place great pressure on the domestic relationship.'
62Furthermore, it was submitted that it is important that you be adequately punished for both offences. In support of such submission, reference was made to R v Pham [2005] VSCA 57 at paragraph [21] per Vincent JA, who, when speaking of an intervention order, stated that such orders are:
'… designed by Parliament to provide the protection of the law to vulnerable individuals, usually, as in this case, women and children, who legitimately fear for their safety. Offenders who disregard such orders and occasion injury to persons whose personal security is intended to be guaranteed through this means must anticipate that an extremely stern view will be adopted by the courts of their conduct and, save in the most unusual circumstances, will be subject to condign punishment …'
63Although it was accepted that your use of illicit substances contributed to the offending and that the relationship between you and the complainant was not a healthy one for either party, it was submitted you would have been aware that from at least March 2018 that your use of substances contributed to your offending behaviour (reference was made to Exhibit B, report of the psychologist Ms Gina Cidoni, dated 5 March 2018 at p5).
64It was also submitted that given your past offending, which has resulted in 'not insignificant terms of imprisonment for similar conduct', specific deterrence must play a role in the determining of an appropriate sentence.
65Ultimately it was submitted that, given the gravity of the offending and your prior criminal history, you should be sentenced to an immediate custodial term with a non-parole period to be imposed. In particular it was submitted that the prosecution would consider a combination sentence not to be within range for this type of offending.
Community Correction Order Assessment Outcome Report
66At the end of the plea, the court directed that you be assessed as to your suitability for a Community Correction Order and this was undertaken on 14 September 2021. In a report of the same date from the assessing officer, Gurjoit Dhillon, it is stated that you were assessed as being a high risk of reoffending according to the Level of Service Risk Assessment Tool. Furthermore, based on your failing to engage in relation to two past Community Correction Orders, you were not recommended as suitable for a further community correction order.
67The court does note that during the assessment you attributed your offending to drug and alcohol abuse in relationship with the complainant, which was unstable. It was noted that, notwithstanding your previous noncompliance with various orders, you expressed motivation to undergo a Community Correction Order to better equip yourself with harm-minimisation strategies and turn your life around. In this respect, it was also noted that you had been on remand at that time for about eighteen months and had the opportunity to reflect and acknowledge the “current trajectory of [your] life should [you] not engage in treatment and rehabilitation”.
Conclusion
68Both your counsel and counsel for the prosecution characterised your offending to be that of domestic violence in what had been an on-and-off intimate relationship with the complainant since July 2016, having met undergoing drug rehabilitation courses. As described in the Prosecution Opening, and described by your counsel, the relationship was tumultuous, resulting in periods of time when the relationship broke down due to incidents of domestic violence and involving numerous assaults of the complainant, and various intervention orders taken out against you by the complainant.
69Charge 1- that is, the charge involving the contravention of a family violence intervention order, involves an argument escalating and then with you telling the complainant:
'I'll cut your fucking head off and you won't be fucking walking out of here. You'll be buried here'.
In particular, as you said this, you grabbed an axe and started walking towards the complainant, who got out of her chair and started to run. It is hard to imagine how frightening that would have been for the complainant when she saw you walking towards her, grabbing an axe and indicating that you would cut her head off.
70Charge 2- involving the armed robbery- concerns you running after the complainant after threatening to cut her head off and then throwing her into the ferns and pushing the handle of the axe across her upper chest. When you did this the complainant tried to defend herself by clawing your face, telling you:
'Please get off. Please stop'.
Again, it is hard to imagine the extent of the fear that the complainant would have experienced at that time when she was under your control, with an axe across her upper chest, following on shortly from the threat to chop off her head.
71It was those circumstances that you told the complainant to give your mother's opal ring back, such ring being worn by the complainant on her ring finger, having been given the ring by your mother. You then ripped the ring off the complainant's finger and she told you, 'Take it'.
When you allowed the complainant to move, you told her:
'Sit down and shut up'.
But the complainant told you she had:
'Had enough of this and was done'.
The complainant picked up her belongings and walked away from the Nissan into the bush, yelling out for help.
72Both your counsel and counsel for the prosecution accepted that the seriousness of the armed robbery was not the nature and extent of the robbery but rather the violent circumstances surrounding it- that is the domestic violence exhibited by you in obtaining your mother's ring.
73Unfortunately, the subject offending has not been the first time you have offended in relation to what may be called domestic violence in relation to this complainant- nor for that matter was it the first time you breached a Family Violence Intervention Order.
74I consider that both offences are reasonably serious, given the degree of violence exhibited by you in relation to the complainant and what must have been an extremely frightening episode for the complainant.
75I do accept that when such offending occurred, you were under the throes of “ice” and, indeed, it was common for both you and the complainant to use drugs leading up to that time. I also accept that the actual offence, although involving two distinct offences, only extended over a relatively short time and that the circumstances constituting the contravention of the Order followed on to the circumstances constituting the armed robbery.
76Furthermore, I accept that in no way was there any premeditation in relation to either the breach or the armed robbery. In particular, I accept that the armed robbery was a spur-of-the-second decision on your part, having become enraged with the complainant, causing you to seek the recovery of your mother's ring. In a similar way I accept that the weapon, the axe, was part of your camping equipment and was never intended to be used as a weapon of violence.
77Furthermore, as put by your counsel, although both incidents gave rise to great fear in the complainant, it did not involve physical violence leading to injury or the need for treatment.
78Although I accept that the drug habit was the major promoter of such offending, as I have already explained, I maintain that such offending remains of a reasonably serious nature given the degree of violence involved.
79I characterise your prospects of rehabilitation as “reasonable” on the basis that you avoid taking illicit drugs, as you have demonstrated for limited times in the past. Your counsel informed me that on your instructions you have been illicit-drug free since being incarcerated. Furthermore, it is your intention to live with your mother after being released from prison and hopefully engage in work suitable to your skills. All this bodes well for the future.
80However, I note that when assessed for a Community Correction Order you were found to be at a high risk of reoffending according to the Level of Service isk Assessment Tool and, furthermore, in times past you have undergone some rehabilitation which has had limited impact on you avoiding illicit drugs.
81I also note that there does not appear to be any evidence of any remorse in respect to your offending involving the complainant- indeed the flavour of your Record of Interview was that you were implying that the complainant was lying and that she was “setting [you] up”.
82I consider that the following are relevant in coming to an appropriate sentence ꟷ general deterrence, that it is to generally deter others from committing acts of domestic violence; specific deterrence, that is, to deter you from re-offending in the way you have in the past; and denunciation of such offences and protection of the community.
83Your counsel, although accepting that specific deterrence potentially has a role to play given your past convictions for similar offences, has submitted that your 18 months or so of incarceration thus far, in circumstances where there were far more lockdowns than normal, various courses were either reduced or eliminated and the potential to have visitations from family or loved ones was extremely curtailed, and indeed the general risk of the COVID-19 pandemic in a prison system, has been such that you are specifically deterred from reoffending in a similar way.
84Although I accept you have suffered hardship in prison because of the COVID-19 pandemic and indeed, having generally the back pain which has been described to me, I do consider that such a sentence has to take account of specific deterrence.
85I also take into account the mitigating factors relied on by your counsel, to which I have made reference to earlier in these reasons, and indeed to the extent that is possible, take account of the contents of the victim impact statement declared by the complainant. I consider that, given the nature of the offending, your past convictions for similar offending, and indeed your failed attempts at previous sentences of Community Correction Orders, it is not appropriate that I order a Community Correction Order, but rather a period of imprisonment with a non-parole period.
86In formulating an appropriate sentence, I do take account, in particular, of totality, and also parsimony. In particular I do consider it is appropriate to obviously treat each offence as a stand-alone offence, but also take into account the very close proximity between the occurrence of each offence and, indeed the fear experienced by the complainant, commencing when you approached her with the axe and continuing to when you followed her and she fell over and the axe was placed across her upper chest, requires that there be a material concurrence of the respective sentences.
87Please be upstanding.
(a) in relation to Charge 1, you are convicted and sentenced to a period of 12 months' imprisonment;
(b) in relation to Charge 2, you are convicted and sentenced to a period of imprisonment of two years and six months (this is the base sentence);
(c) I direct that six months of the sentence in relation to Charge 1 be cumulated with the sentence in relation to Charge 2;
(d) the total effective sentence is three years' imprisonment and I order that there be a non-parole period of two years;
(e) I declare that you have served up to but not including this day 570 days' pre-sentence detention and that such period should be administratively deducted from your sentence;
(f) I will permit a disposal order to be made;
(g) pursuant to s6AAA of the Sentencing Act 1991 I declare that save for your pleas of guilty I would have sentenced to a period of imprisonment of four years, with a non-parole period of two years and seven months.
88Yes, gentlemen, anything you want to - or, ladies and gentlemen, anything you want to comment?
89MS ZAMMIT: No, Your Honour.
90HIS HONOUR: Mr Sturges?
91MR STURGES: No, Your Honour, that's - no, that's all understood. Thank you, Your Honour.
92HIS HONOUR: Yes. Can I just go back to Mr Hilsdon. Mr Hilsdon, are you there?
93OFFENDER: Yes, Your Honour.
94HIS HONOUR: You may not have taken this all in, but what I've ordered is what we call a total effective sentence of three years with a non-parole period of two years. Now I've got no control over whether or not you would be paroled at the end of two years. The point I make though is that from what I've been told, you know, you're probably up to about 19 or 20 months already. I don't know. And you're got the prospect I suppose - I only say the prospect, as I say, I can't control this - that you could be released on parole at the end of two years.
95I don't want you to walk away and think I haven't taken account of your prospects in the future. There are some very good things which have emerged. I've accepted what your counsel's told me, that you haven't been involved in drug-taking when in prison. That's a very, very positive thing.
96Second, I think you have got family support. I've noted your parents have been involved very much in trying to see you and looking in on these proceedings. Indeed it's the intention of you living with your mother after you're released, that's an excellent thing.
97The third thing is, from what I've been told, you're going to have a fair bit of family support around you, which is important also because you're going to have to make an effort, as I think you well know at this stage, that the only way you're going to get out of this cycle of offending is get the drugs out of your life. Now, there are some pointers pointing that way, which is good. You've made attempts in the past and obviously you've failed in the past, or maybe you've succeeded for a period and then failed.
98What I'm really saying to you, I don't want you to walk away here today and think, you know, life's over. With a bit of luck you get parole, even if you don't get parole, it's not the longest time to serve. You've got an environment where you're going to walk into which is going to help you, I hope, very much. But as I say to many people in this sort of situation, I hope it's right that you have made a really serious decision to turn your life around, what are you now, in your mid-40s.
99You know, if you keep doing this sort of thing the sentences are going to become longer and longer and longer. Domestic violence is a serious thing. And please don't think I'm in any way belittling. I'm not belittling what you did, it was frightful. It was frightful action at those times bearing in mind what your history was prior to that. But be that is it may, the future is something you have to worry about, so just bear in mind what I've said, all right?
100OFFENDER: Thank you, Your Honour.
101HIS HONOUR: All right, thank you. Thank you for your attendance this morning, ladies and gentlemen. We'll adjourn sine die.
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