Director of Public Prosecutions v Hodgson

[2018] VCC 1002

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 18-00611

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HODGSON

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Geelong
DATE OF HEARING:	26 June 2018
DATE OF SENTENCE:	29 June 2018
CASE MAY BE CITED AS:	DPP v HODGSON
MEDIUM NEUTRAL CITATION:	[2018] VCC 1002

REASONS FOR SENTENCE
---

Subject:                   CRIMINAL LAW

Catchwords:             Sentencing - Recklessly cause injury – Contravention of order made under Family Violence Protection Act 2008 – Attempting to pervert the course of justice – Failing to leave residential premises when expressly asked to do so

Legislation Cited:     Family Violence Protection Act 2008 – Sentencing Act 1991
Cases Cited:            
Sentence:                Three year community correction order with conditions.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley	Solicitor for the Director of Public Prosecutions
For the Accused	Mr C. Baker	Geelong Lawyers, Barristers & Solicitors

HIS HONOUR:

1Andrew Gregory Hodgson, you have pleaded guilty to:

·One count of recklessly causing injury, contrary to s.18 of the Crimes Act 1958, for which the maximum penalty is ten years' imprisonment.

·One count of contravening an intervention order made pursuant to the Family Violence Protection Act of 2008, for which the maximum penalty is five years' imprisonment.

·One count of attempting to pervert the course of justice, contrary to Common Law, for which the maximum penalty is 25 years' imprisonment. 

·You have also pleaded guilty to the summary offence of failing to leave a private place, when expressly asked to do so, contrary to s.9(1)(f) of the Summary Offences Act of 1996, for which the maximum penalty is six months' imprisonment.

2The circumstances of your offending are that on 16 August 2017, you attended at a premises in Newtown, where your wife was then living with others.  You had separated from her some time before, and she had moved into those premises with housemates.

3You entered the premises.  You then entered your wife's bedroom, where she was sleeping.  When she awoke, you were in her bedroom, inspecting her telephone.  When she asked you what you were doing, a verbal altercation ensued.  When she leant over and attempted take possession of her phone from you, you struck her in the ribs, causing her to fall across the bed.  That conduct constitutes Charge 1, the offence of recklessly causing injury.

4That conduct also constituted the offence of contravening an intervention order, which had been made in August of the previous year, pursuant to the
Family Violence Protection Act.  The previous year, the police had arranged for that intervention order to be made, protecting your wife from family violence, for a period of 12 months.

5It was a limited intervention order, in that it allowed for contact between the two of you, provided there was no family violence.  Your attendance at her home, on 16 August 2017, and your striking of her, in the manner that I have previously described, constituted a contravention of that order, which constitutes
Charge 2.

6Following that incident, your wife was taken to the Geelong hospital, and a medical examination of her revealed a red, tender area located on her left anterior ribs, which was painful.  Police were called to the hospital and obtained a statement from your wife.  The intervention order was varied, so that contact was no longer permitted between you and your wife.

7On the following day, 17 August 2017, you again attended at the premises where your wife was living.  I accept that you did not know of the variation to the intervention order that had been made the previous evening.

8You banged upon her bedroom window, where she was again, sleeping.  You then commenced banging on the front door of the premises.  One of your partner's housemates opened the front door.  She told you that she would speak to your wife to ascertain whether she wanted to see you or not.  You replied that you were coming in, whether she wanted it or not.  Your wife emerged from her room, and asked you whether you had received the papers, referring to the updated intervention order, which prevented you from having contact with her.

9As it happened, you had not yet been served with the varied order.  You entered the house, and commenced yelling at your wife.  She asked you to leave, telling you that she would call the police if you did not leave.  Both your wife and her housemate asked you to leave.

10A portion of the conversation that you had with your wife and her housemate at the premises that morning, was recorded on a mobile telephone.  The recording was played in court during your plea hearing.  On that recording, you were heard to be yelling loudly in what, in my view, was an extremely aggressive tone.  You threatened to and I quote, "Bloody belt the shit out of you".  You told your wife, "You go and retract that right now, or I swear, I'll make your life hell.  You've got two choices, you retract it now, or I swear, I hurt you.  … you fix it up now or I swear, I'll do everything in my power to make your life hell".

11It was agreed between the parties, that the reference to retracting it now and dropping it, was a demand by you, that she retract or drop her allegations made to police regarding your conduct at her house the previous night.  That conduct constituted Charge 3, attempting to pervert the course of justice.

12You were arrested on the afternoon of 17 August 2017.  A record of interview was conducted, and you elected to make a no comment response.

13You are aged 26.  You were aged 25 at the time of the offending.  You were born in Melbourne in Wantirna and raised initially in Vermont South by your parents.  You have got two older brothers.  At the age of four, your family moved to New South Wales, for your father's work, and you attended primary and early secondary school at Bowral.

14In Year 10, you and your family moved to Bendigo.  You attended
Girton Grammar School for the balance of your schooling, your final year, as a border due to your family moving again.  You left school at the end of Year 11, and started working for Telstra in Geelong in the technical support area.  You later worked for Telstra in Mount Gambier.

15You completed an advanced diploma in computer engineering at the Geelong Institute of TAFE.  You continued to work in the computer industry, mainly on a contractual basis.

16In late 2014, you travelled in Europe, where you met your wife-to-be in Romania.  You married her there.  You and she returned to Australia, where the two of you lived with your mother in Geelong.

17You have been diagnosed with Autism Spectrum Disorder, Attention Deficit Disorder, and Oppositional-Defiant Disorder, when you were a child.  Notwithstanding, you appear to have done reasonably well at school and have successfully completed a tertiary diploma course.

18You appear to have been able to hold down steady employment since leaving school.  You have generally been in good health, although you injured your knee late last year, and have been less mobile since.  You are currently not taking any medication, but are due to commence cortisone injections for your knee shortly.

19The principle purposes for which a court may impose a sentence in respect of offences such as these, include the denunciation of your conduct, to deter you and others in the community from committing such offences in the future, and to establish conditions within which it is considered by the court that your rehabilitation may be facilitated.

20I am required to have regard to a number of matters, including the seriousness of your offending, your culpability for it, your personal circumstances, whether or not you pleaded guilty to the offences, any remorse shown by you for your offending, and your past criminal record, if any. 

21I consider that issues of denunciation, deterrence, and rehabilitation, are paramount here.

22At your plea hearing, I was referred to a reference provided by your wife, for the purposes of your plea, in which she stated that she held herself substantially responsible for your conduct at the time; that is, your offending conduct.  I reject that statement entirely.  It may well be that there is a background to these incidents, which involved your wife, yourself, and your mother, perhaps with some fault resting with all three.

23I was informed by your counsel, that the previous year, your mother had obtained an intervention order, preventing your wife from approaching her, and which prevented your wife from living in the same premises as her.  It was for that reason, that in August 2017, your wife was living away from you.  You had determined apparently, to stay with your mother, whilst your wife moved out.

24Regardless of the precise circumstances of any earlier incidents involving your wife and your mother, you had no right and no cause, to behave in the manner in which you did on 16 and 17 August 2017.  You and your wife, since the date of your offending, reunited.  Variations have been made to the intervention order, which permits your wife to live in the same home as you and your mother.

25Insofar as your wife's statement amounts to some evidence that she was in part to blame for your offending, such evidence is rejected entirely by me.  You and you alone bear the responsibility for your aggressive and violent behaviour on those dates.  I consider that your culpability for those offences is high.  No one else was to blame.  I am not absolutely certain that you fully appreciate that yet.

26You have no prior convictions and have not offended since August 2017.  You pleaded guilty to these offences in March 2018, shortly prior to your committal hearing commencing, about seven months after you were charged.  Whilst I do not consider that this plea could be considered a particularly early one, I do consider that the plea has utilitarian value, as witnesses were not required to give evidence at either your committal, or trial, and valuable court resources have been saved as a consequence.

27It was submitted on your behalf that the charge of recklessly causing injury to your wife, together with breach of intervention order, when viewed in the circumstances applying to you, and I quote, "Would not attract a significant penalty".  Your counsel said this was due to a number of factors.  The violence consisting of a single strike, the lack of significant injury to your wife, your lack of criminal history, and the fact that you are now supported in this plea by your wife.

28The first two of those factors in my opinion, would not amount to circumstances not attracting significant penalty.  The fact that it was a single strike, is balanced by a number of other matters.  You had entered your wife's home on that night, without her permission or knowledge.  You entered her bedroom, when it would have been obvious to you that she was asleep.  She was likely to have been extremely frightened to wake and find you there.

29You are a very large man, while she is petite in size.  You would have enjoyed an enormous advantage over her in terms of power.  The pain suffered by her, as a consequence of your strike was sufficient to warrant her to be taken to hospital.  It is indeed fortunate for you that a more serious injury was not inflicted.

30The recording of that portion of the conversation between you, your wife, and one of her housemates, on 17 August 2017, showed clearly just how aggressive and frightening you sounded at that time.  There was no rational discussion; it was an exchange involving threats of violence by you towards your wife.  The threats of belting her, hurting her, and beating her up, were uttered by you with real aggression, and in a manner which I consider would have led your wife and her housemate, to believe that you intended to do so.

31This is a good example of the type of behaviour, that an order pursuant to the Family Violence Protection Act was designed to prevent.  I consider that it is an aggravating feature of your conduct, constituting the charge of recklessly causing injury that it occurred where there was in place such an intervention order against you.

32It was submitted on your behalf, that a charge of attempting to pervert the course of justice, sometimes involves far more serious conduct, than that admitted by you here.  Nevertheless, your conduct could not be described as minor or trifling.  The fact is, you threatened to beat your wife up, unless she withdrew the allegations she made against you.  This, on any view, is a serious attempt to pervert the course of justice.

33A report by Mr David Ball, psychologist, dated 27 April 2018, was tendered on your behalf.  He reported that there was no evidence of any frank mental illness, such as psychotic symptoms, hallucinations, or delusions, and that you had denied ever having experienced those symptoms in the past.

34There was no evidence of cognitive impairment.  Your IQ falls within the normal range.  You had previously been diagnosed with Autism Spectrum Disorder, level one, Asperger's, and Attention Deficit Disorder, and were medicated for those conditions in your childhood.

35He was in possession of medical records, going back to 2008, which confirmed this.  He said you did not appear to have any particular problem with the use of alcohol, or any illicit substances now, or in the past.  He considered that you lack social skills, have poor empathy, and that you lack insight into how your behaviour and communication affects others.  He thought that this was connected with your offending.  He considered that your conditions would be life-long.   

36A report from a psychologist, Ms Kim Dowse, dated 23 April 2018, was also tendered on your behalf.  Mr Ball had referred you to her for counselling and you had, at the time of her report, attended for three counselling sessions.  I assume that you have continued with that counselling up until the present time.

37Ms Dowse was of the view that your attitude had changed dramatically, since the first counselling session, and that you now have improved skills and communication, empathy, and overall understanding.

38A number of references were tendered, from your wife, your mother, and your uncle.  The most important of these is that of your wife.  She states that you had been upset about these charges, and that she believes that you are sorry for what you have done.  She stated, "Andrew is not an easy person to live with.  He's always correct, does not entertain erratic behaviour, and follows strict expectations of decency and respect.  While many will criticise Andrew's behaviour, he is autistic.  In many ways, this is a constant battle.  His friendships are few, and he is easily manipulated and placed into a line of fire, whilst often a victim of his own good".

39She states that she has been diagnosed with high levels of depression, and takes medication for that.  Her relationship with you has been reunited.  She considers you to be a person of great integrity, dependable, and trustworthy.  She considers that your behaviour resulting in these charges, was a one-off event, although that does not explain the taking out of an intervention order by her in August of the previous year.

40She referred to your donation of time to the community on weekends, providing safe modes of transport for people unable to drive themselves, and willingly offering to carry groceries for elderly people. 

41Your mother, a widow since 2011, makes reference to your diagnosis with Autism and Oppositional Defiance Disorder when you were in Year 8 at school.  She refers to school as being a challenge for a number of your teachers.

42She describes you as having a loving and caring nature and that physically violent behaviour is out of character for you.  She concedes that you can be verbally inappropriate when under extreme stress, but that you are not a viscous person.  Your mother refers to a recent decision made by you, not to accept an offer of employment at a Geelong school, because of your belief that you would fail a police check as a consequence of these charges.

43She referred to your current employment, and is of the belief that you are
well-liked and valued in your job with the IT team.  She considers that you have an excellent work ethic. 

44Your uncle, Richard Hodgson, referred to difficulties in your relationship with your wife.  He noted that you had originally married in Romania, after meeting her on the internet.  After coming to Australia, she found it difficult to adjust to a new country, language, and culture.  This resulted in her leaving Australia, returning to Romania, and then going to London, only to return to Australia in 2017.

45He considered that the marriage was strained and fractured.  He describes you as being a caring person and most supportive of your mother. 

46I take each of those references into account, in determining your sentence.

47For a variety of reasons referred to earlier, it could be argued that this is a matter in which a prison sentence should be imposed.  However, taking all of the circumstances into account, it seems plain to me that prison is likely to be a particularly harsh environment for you, especially taking into account your perceived lack of empathy to others, and what your mother described as being verbally inappropriate when under extreme stress.

48It also seems plain that your Autism Spectrum Disorder and Oppositional Defiant Disorder, as commented on by Mr Ball and Ms Dowse, are likely to have played a role in your offending behaviour.  It follows, I consider, that principles of punishment and deterrence should be moderated in favour of an attempt to establish conditions within which rehabilitation may be facilitated.  Further, there is no evidence before me that the community, or the community at large, is likely to be in need of protection from you.

49I further take heed of the provisions of s.5(4) of the Sentencing Act which provides that a court must not impose a sentence that involves the confinement of the offender, unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

50In all of the circumstances, I am of the view that your rehabilitation is unlikely to be assisted by the imposition of a custodial sentence.  It is likely that a community correction order, with specific conditions, will facilitate such rehabilitation and provide an adequate punishment for your offending.

51I am in possession of the report from Corrections Victoria, dated 26 June 2018, indicating that you are considered suitable for such an order.  In all of the circumstances, I am proposing to sentence you on an aggregate basis for the offences to which you have pleaded, to a three year community correction order, with a number of conditions attached to it.

52I am not permitted by legislation to make such a community correction order, unless you consent to it.  In fairness, I should tell you of the conditions that I intend to impose before asking you whether you do consent. 

53Firstly, there are a number of mandatory conditions which apply to every community correction order. These are set out in s.45 of the Sentencing Act: 

·They are that you must not commit, whether in or outside Victoria, during the term of the order, any offence punishable by imprisonment. 

·You must report to and receive visits from Corrections Victoria during the period of the order.

·You must report to the Community Corrections Centre at Level 5 30A
Little Malop Street Geelong within two clear working days after this order coming into force.  That is, you must report there by 4 pm on Tuesday of next week, Tuesday 3 July.

·You must notify Corrections Victoria of any change of your address, or your employment within two clear working days of that change. 

·You must not leave Victoria, except with the permission either generally or in relation to a particular case of Corrections Victoria.  Do you understand?  You must not leave Victoria, during the term of the community correction order.  If you travel to Albury, you will have left Victoria.  You will be in breach of the order.  If you travel to
Mount Gambier, likewise

54In addition to those mandatory orders, I intend to impose a number of additional conditions which will apply to you. 

·Firstly, I shall order that you complete during the three year term of the Community Correction order, 100 hours of unpaid community work. 

·In addition, it will be a condition of the order that you undergo treatment and rehabilitation by way of any mental health assessment and treatment, which may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility.  Such treatment is on the basis of the material before me, likely to include your continued counselling with Ms Dowse. 

·Also, treatment and rehabilitation by way of programs that address factors related to your offending behaviour.

55Now Mr Hodgson, I need to know whether you consent to that Community Correction order with those conditions, and I will give your counsel a short time to consult with you.  Do you want me to leave the Bench briefly?

56MR BAKER:  No, Your Honour.  Yes, Your Honour, Mr Hodgson will consent to that order.

57HIS HONOUR: Thank you. I shall make that Community Correction order. I should nevertheless declare pursuant to s.6AAA of the Sentencing Act that if you had not pleaded guilty to these charges, I would have sentenced you to imprisonment for 12 months', and ordered that you not be eligible for parole for 6 months. 

58Now, ancillary orders, Mr Sharpley ‑ ‑ ‑

59MR SHARPLEY:  The forensic sample order, Your Honour.

60HIS HONOUR: Yes, what is sought, Mr Hodgson, is an order pursuant to s.464ZF of the Crimes Act, where the Crown seeks to obtain from you a DNA sample, and it is generally the swab of the inside of your cheek, or a blood sample.  I need to know again, whether you consent to that.  The reason I make the order, is firstly because of what I consider to be the seriousness of the offences committed by you.  Is that an order that is made by consent, or is it disputed?

61MR BAKER:  We did make submissions that we opposed that order, on the last occasion, but Your Honour did indicate that you were going to grant the order.

62HIS HONOUR:  Right.  Well, I will make the order on the basis of the seriousness of the circumstances of your offending, which I consider warrant the order being made.  I should tell you, Mr Hodgson, that if in the end you do not consent to police taking that scraping from your mouth, then the police will be entitled to take a blood sample from you, and use all reasonable force to do so.  Do you understand that?  Thank you.

63Now as regards to the community correction order, there is a document that you have to sign.  It has been provided to your counsel.  I will leave you two together for the moment to discuss it if necessary.

64Yes, is there anything else in this matter that either of the parties want to say to me?

65MR SHARPLEY:  No, Your Honour.

66MR BAKER:  No, Your Honour.

67HIS HONOUR:  Yes, all right.  Thank you, you are excused from the Bar table, Mr Baker.

68MR BAKER:  Thank you, Your Honour.

69HIS HONOUR:  I wish you every success, Mr Hodgson.  Do not come back to court again.  Thank you.

‑ ‑ ‑