Director of Public Prosecutions v Holland
[2014] VCC 686
•21 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01988
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL WAYNE HOLLAND |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2014 | |
DATE OF SENTENCE: | 21 May 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Holland | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 686 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly cause injury – criminal damage – recklessly causing serious injury.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Sentence: Community-Corrections Order for a period of 4 years.
S6AAA declaration: Total effective sentence of 2 years’ imprisonment with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Bhai | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr T Strong | Victoria Legal Aid |
HIS HONOUR:
1 Mitchell Wayne Holland, you have pleaded guilty to one charge of recklessly causing injury, the maximum penalty for which is 5 years’ imprisonment; one charge of criminal damage, the maximum penalty for which is 10 years’ imprisonment; and one charge of recklessly causing serious injury, the maximum penalty for which is 15 years’ imprisonment.
Circumstances of offending
2 The facts are set forth in Exhibit A, the Prosecution Plea Opening, which I adopt.
3 Briefly, you commenced a relationship with Naomi Jean Williams in January 2013. On 28 and 29 May 2013, during a drinking binge, you committed various violent acts against Ms Williams and others. You somehow formed the view, without any proper basis, that she was having an affair with another person, Mr Luke Berger. While at a friend’s premises in Benalla, you shoved Mr Berger violently to the ground, shook Ms Williams and hit her to the back of the head a number of times. When Mr Berger attempted to leave, you threw him to the bonnet of a car and punched him to the head four or five times. While Ms Williams was seeking refuge inside the house, you barged in, grabbed handfuls of her hair and dragged her about the house, throwing her to the ground. You then sat on top of her and began choking her. These acts constitute Charge 1, recklessly causing injury.
4 The following day, you again began drinking early and were at other premises in Benalla. You telephoned Ms Williams to pick you up. When she did, you began accusing her of being unfaithful. You punched her a number of times to the head and face, then went back to her premises and began kicking the side of her car. You also threw rocks at the car, causing extensive damage. You prevented her from driving the car away. These acts constitute Charge 2, criminal damage.
5 After this episode, you pursued Ms Williams, who had left the house, and dragged her back. She tripped over on a number of occasions. You called her insulting names and poured beer over her while she was lying on the floor. You punched her, head-butted her face and assaulted her continuously over a period of about 30 minutes.
6 At this point, Ms Williams was so battered that she falsely admitted to having the affair with Mr Berger. You then made her get into the car and go to the house where Mr Berger’s brother was residing. After a short argument, you hit Mr Berger with a strong punch and knocked him to the ground unconscious. You then, again with Ms Williams, went to other premises in Benalla and accused her of having an affair with one of the residents. Afterwards, you returned to her premises and attempted to shove a remote control into her mouth. When it would not fit, you painfully pulled down her jaw. You grabbed car keys and punched her to the back of the head a number of times with one of the keys protruding, leading to a significant cut. You then punched her legs and face. At one point, you placed your hand over her mouth and nose so that she could not breathe. When she tried to escape, you caught her and punched her to the nose.
7 The police arrived shortly afterwards and you forced Ms Williams to hide in the wardrobe and then in the laundry. The police found you and you were arrested and Ms Williams was taken to Wangaratta Hospital. She received a broken nose, two black eyes, lacerations to her cheek, bruising and swelling to her forehead, jaw and neck. The broken nose required surgical correction.
8 The Victim Impact Statement of Ms Williams was read to the court. In the relevant parts, she spoke of being ashamed, embarrassed and felt trapped in her house. At one point she wanted to die just so that the beating would stop. She felt shame when her parents and family found out what had occurred. She was unable to remain living in the house where the violence occurred, has had nightmares and is scared of walking down the street. All in all, your offending has had a very grave effect upon her. While the physical injuries were significant, a far greater consequence is the emotional scars which she will carry for a very long time. I was provided with photographs of the injuries, taken a short time after the offending. In particular, they clearly depict the facial injuries, bruising to the mouth, neck and jaw, and abrasions and bruising to various other parts of her body.
9 You were imprisoned from the day of the offending until 17 October 2013 when you were granted bail. It is accepted that you have spent 142 days of pre-sentence detention.
10 You pleaded guilty in October 2013 at a committal mention and it is accepted that your pleas of guilty occurred at the earliest practicable time.
Factors personal to you
11 You are an Aboriginal man, born in July 1982 and are now 31 years of age. You were born in Western Australia and your father left home around the time of your birth. You grew up in a dysfunctional family where both your mother and stepfather were alcoholics. Various members of your family have died of alcohol related disease. You began drinking yourself at 13. Your alcohol consumption continued up until the time of your offending. At a young age, your mother moved to the Benalla area. Your early life was also marked by success in a range of sporting areas, including running, swimming and particularly boxing, where you said that you were not far from Olympic selection standard.
12 At age 18, you commenced full-time work, initially in a timber yard and then in the forestry industry. You also worked as a kitchenhand and chef. Eventually, in 2006, you obtained your licence to skipper a commercial fishing vessel and returned to Western Australia in 2007, where you skippered fishing boats until 2012. In order to achieve this, you obtained certificates from the Australian Maritime Institute, enabling you to skipper boats, and also obtained a Certificate in Marine Engineering.
13 Notwithstanding the skill needed to operate large commercial fishing vessels, and the intellect required to obtain the necessary certificates, you maintained your heavy drinking, which over the years in Western Australia, became worse. Although the pay was substantial, the hours were long, and you got to the point, in 2012, where you had what you described as a “breakdown”.
14 You returned to Benalla in 2012 and commenced a relationship with Ms Williams in early 2013. Throughout your relationship, and up to the time of offending, you continued to drink significant quantities of alcohol, at times drinking a slab of stubbies and half a cask of wine per day.
15 You have a history of prior offending going back to 2000, with charges including hindering police, damage property, recklessly cause injury, assault, driving offences and breach of restraining and bail orders. However, none of the offences in the past have attracted a gaol sentence.
16 In the course of the plea hearing, you entered a sentencing conversation with respected Aboriginal elders and, in my assessment, engaged frankly with them, acknowledging the seriousness of your conduct, the damage both physically and psychologically done to Ms Williams, and accepting that you were solely responsible for the offending. I emphasise, as was stated in the plea hearing, that the elders have played no role in this sentence.
17 Since being released from prison, you have taken significant steps towards rehabilitation. Over the period from 17 October 2013 until 19 March 2014, you undertook a program at the Yitjawudik Men’s Recovery Centre, a 16-week structured live-in program, which you successfully completed on 5 February 2014. According to a report of the manager, Mr Hassall, you engaged in all aspects of the program and in fact remained on for an extra month until 19 March 2014. You participated with all the groups and were taught a range of skills to address your problem with alcohol. According to the report, you were regularly screened for alcohol and drugs, all with negative results. In the course of the hearing, you admitted that on one occasion you had relapsed, but otherwise remained free of alcohol to the present time.
18 According to a report from Ms Gillie Freeman, a counsellor at the program, you progressed well, were respectful and supportive to all involved and commenced a personal trainer course. As at this date, you are still a full-time student at a personal training academy. The course is expected to go until January 2015.
19 According to a report of Dr Neville Leslie of the Murchison Medical Clinic, you have been attending the clinic since October 2013. The report says you were diagnosed by a psychiatrist, Dr Saji, with an alcohol dependence, currently in remission, with possible alcoholic hallucinosis and dysthymia. You have been prescribed medication for the hallucinosis and an anti-depressant.
20 In the course of the plea hearing, you frankly admitted that you still had considerable work to do with counsellors and therapists to prevent a relapse into alcohol abuse.
21 You have also regularly attended both Alcoholics Anonymous and Narcotics Anonymous meetings. You have maintained your Maritime Skipper’s Licence and I was told that you have the capacity to obtain employment in a fishing boat, tugboat or even a cargo ship. You have had no contact with Ms Williams since the incident, and have not returned to Benalla. You have been living with friends and there is the prospect of secure housing through the Aboriginal community. The program through the Yitjawudik Men’s Recovery Centre is the first alcohol rehabilitation program that you have been involved in.
22 In recent months, you have taken up art with an art therapist, Ms Maryanne Gray. She referred to your issues of anger and alcohol abuse, and the violence and disconnection of your early childhood. She said that you had progressed well mentally and emotionally in the arts sessions and find art an outlet for your negative emotions.
Sentencing considerations
23 The purposes for which a court may impose a sentence are:
· punishment – to an extent and in a manner which is just in all the circumstances;
· deterrence, both specific and general;
· rehabilitation;
· denunciation and/or protection of the community.
24 In sentencing you, I must have regard to a range of matters, including the seriousness of the offending and the impact upon Ms Williams, your responsibility for it and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
25 You have pleaded guilty and you are entitled to have that fact taken into account in your favour. A plea of guilty, no matter why or when it is entered, must always attract a sentencing discount. I accept that your plea of guilty was made at an early time and to some extent evidences remorse. You have avoided the cost of a trial and spared the witnesses the ordeal of giving evidence.
26 I accept the plea of your counsel that the offending occurred in the context of heavy drinking over a very considerable period. In fact, over the course of your whole life you have lived in an environment where heavy drinking and drunkenness is the norm. If you are to have any prospects of long-term rehabilitation, it is essential that you obtain all the help necessary from medical practitioners, counsellors and those in the Aboriginal community to ensure that you give up alcohol completely. It is clearly the trigger which leads to anger, jealousy and violence. I am impressed with the steps that you have taken so far through the Yitjawudik Men’s Program and attending regular Alcoholics Anonymous meetings. It was clear in the sentencing conversation that you acknowledged sole responsibility and that you are making an honest attempt to deal with your “demons”.
27 Again, in the course of the sentencing conversation, and in the reports from the various medical practitioners and counsellors, I accept that you are remorseful for your conduct and have an understanding of the effect upon Ms Williams of your cowardly attack. I assess you as an intelligent man given you have been able to obtain a Maritime Certification and work as a skipper on large boats, bringing with it considerable responsibility and planning. I accept that there are real prospects for employment in this area, or, alternatively, as a personal trainer. Full-time employment is a very important part of your rehabilitation.
28 What must be said about the offending is that it is particularly serious. Over a lengthy period you subjected Ms Williams to violent, frightening and degrading assaults. It is clear from her Victim Impact Statement that not only does she bear the physical scars, but the emotional scars, including acute shame and embarrassment and a fear of going down the street. What you must understand is it is likely that she will carry these scars for a very long time.
29 In such circumstances, it would be a rare case where a further significant period of imprisonment should not be imposed. However, I am satisfied that this is one of those rare cases. I accept the plea of your counsel that your time in prison has had a significant effect upon you, given that that this your first period in gaol.
30 You have taken significant steps through the Yitjawudik Recovery Program and I am impressed with the opinions of your counsellors. You are now receiving medication to assist with your alcohol-related problems and depression. You have taken up studying to become a personal trainer. Significantly, you have been abstinent completely from alcohol, save for one brief relapse. You have spoken openly of confronting your demons and acknowledge that you are only partway through your recovery.
31 For all of these reasons, in my view, it is appropriate to impose a Community-Corrections Order for a period of four (4) years. To that end, I have received a report from Mr Richard Temple-Camp, who has assessed you as suitable for such an Order.
32 I have given consideration as to whether you should serve a further term of imprisonment of up to three months, but have determined that your continuing treatment in a number of programs is more likely to enhance the prospects of your continuing rehabilitation than another period in gaol.
Sentence to be imposed
33 Taking into account all of the matters to which I have referred, I impose the following sentence.
34 On the charges of recklessly causing injury (Charge 1), criminal damage (Charge 2) and recklessly causing serious injury (Charge 3), you are convicted on each charge and I order that you undertake a Community-Corrections Order for a period of four (4) years from this date. I have born in mind the 142 days of imprisonment already served.
35 The Order will be subject of the following standard conditions:
(i)That you must not commit, whether inside or outside Victoria, any offence punishable by imprisonment;
(ii)You must comply with any obligation or requirement as prescribed by the regulations;
(iii)You must report to and receive visits from the Secretary or his/her delegate during the course of the order;
(iv)You must report to the Community Corrections Office specified in the order within the next two working days;
(v)You must notify the Secretary of any change of address or employment within two working days of that change;
(vi)You must not leave Victoria without the permission of the Secretary or his/her delegate;
(vii)You must comply with any written direction of the Secretary.
36 In addition, you will be required to undertake the following additional conditions:
(i)That you undertake assessment and treatment for drug abuse or dependency, and alcohol abuse or dependency;
(ii)That you undertake mental health assessment and treatment, including psychological, neuropsychological and psychiatric treatment as determined;
(iii)That you do all things necessary to apply for and enter programs at the Wulgunggo Ngalu Learning Place in Yarram, Victoria. You will receive a form of referral from your Corrections Officer who will deal with the staff at this learning place directly and determine the appropriate programs you are to enter;
(iv)That you be supervised, monitored and managed as directed by the Secretary or his/her delegate;
(v)That you do not contact nor associate with Ms Naomi Jean Williams throughout the course of this Order.
37 I have given consideration as to whether you ought to undertake any voluntary work in association with this order. Again, I have determined that to give full effect to the rehabilitation which you have undertaken, and which needs to continue, your focus should be in that area. Further, you will then have the opportunity, at some point after the Wulgunggo Ngalu program, to obtain full-time employment which will also be important in your rehabilitation.
Sentencing Act 1991
38 Under s.6AAA of the Sentencing Act 1991, I state that but for your plea of guilty I would have imposed a total effective sentence of two years’ imprisonment with a non-parole period of eighteen months.
Ancillary Orders
39 I shall make the ancillary order, sought pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a sample. I am satisfied that such an Order is justified given the seriousness of the circumstances of the offending, that the Order is not opposed and that the granting of the Order is in the public interest. I inform you that a member of the police force may use reasonable force to enable a forensic procedure to be conducted.
40 Yes, have a seat, Mr Holland.
41 MS BHAI: Your Honour, there is one matter that arises from Your Honour's sentence. The program at the Wulgunggo Ngalu Learning Place is a program that is completely voluntary and cannot be mandated by the court. To that extent, as I understand, that the Community-Corrections Order conditions either can be a recommendation but they cannot be a specific condition that an offender attends that program. I spoke yesterday with the author of the report, Your Honour, and he indicated that - you will see that he has ticked "(g) Other treatment and rehabilitation conditions", and that is a condition that they will then use upon which to assess and recommend an offender for that program.
42 HIS HONOUR: Yes. Just let me see the order that I have proposed, or the Community-Corrections Order.
43 MS BHAI: Your Honour, the author of that report, Mr Temple-Camp, did indicate that you could further - and he described it as "free text" - on the order, a recommendation to that program.
44 HIS HONOUR: 48D(g) says, this is under the heading of "Treatment and Rehabilitation Condition", "Any other treatment or rehabilitation that the court considers necessary and that is specified in the order. That may include employment, educational, cultural and personal development programs". I know it is voluntary and of course it will be subject to him being approved, but can I not, under that subsection, make that order to do all things necessary to apply for the program.
45 MS BHAI: I think that the difficulty, Your Honour, is the voluntary nature of the program.
46 HIS HONOUR: Yes. Well, there is two aspects, (a) it is voluntary and (b) he has got to be assessed.
47 MS BHAI: Yes, Your Honour.
48 HIS HONOUR: And one would hope he would be accepted but he may not be.
49 MS BHAI: My discussion yesterday with Mr Temple-Camp was that it was under that section that he would be assessed, and he had already indicated a willingness to complete that program, but he suggested that the court make a recommendation rather than a direction.
50 HIS HONOUR: So how do you say it should be framed, that "I recommend you undergo", "I recommend you apply for".
51 MS BHAI: Or, I think the recommendation is in part to his worker that he be assessed for such a program and then attend that program.
52 HIS HONOUR: I am inclined to leave it as it is. I hear what you say, that it is voluntary.
53 MS BHAI: My only other suggestion to Your Honour if that was an integral part of Your Honour's decision would be to leave it as a recommendation so that it remains a voluntary option, but then perhaps if Your Honour wanted to include a judicial monitoring just to see if that program, that assessment had taken place.
54 HIS HONOUR: Come back if something happens.
55 MS BHAI: Yes, just the judicial monitoring just to see how things are progressing, whether in fact the assessment has been made, whether or not he has chosen, if accepted, to go into that program, and just in effect keep an eye on how things are going in that way.
56 HIS HONOUR: Well, I have got that power undoubtedly. Ms Bhai, I think I will leave the order as it is. You are right, it is certainly a voluntary program and he may or may not get accepted, but I think framing the order in the way that I have will give a pretty clear direction to everyone what I want, and I think I might leave it like that, although I appreciate your input. I see Ms Stewart is in the back of the court, anything you want to add to that Ms Stewart?
57 MS STEWART (from body of court): No, other than it is my understanding that it cannot be part of an order. It is voluntary. There can be a recommendation but sometimes people are assessed as suitable and go up to Wulgunggo Ngalu, and if it is a requirement that he remains there, sometimes there is family issues that they have to go back home, and that does not necessarily mean they breach the order. They can continue on with that order but if he is required to stay there and he has to come home for family issues then it could be that if he does not stay there, and it is a requirement of the order, that it could possibly be a breach if he does not remain there.
58 HIS HONOUR: Very well. Well, the terms of the order are that he do all things to apply for, so that is really what the order is about. Yes, thank you.
59 Yes, very well. I will make the order on those terms. Come forward to the body of the court please, Mr Holland. There are just a couple of further matters I want to address to you.
60 Mr Holland, can I just address a few matters to you. You have heard what has been said about the Wulgunggo Ngalu Program. It is voluntary so I cannot force you to go in it, but as part of the sentencing process it seems to me that there are very valuable aspects of the Wulgunggo Ngalu program for you. You have not had much of a sense of Aboriginal community in your life, and you may - - -
61 OFFENDER: I - - -
62 HIS HONOUR: Just listen to what I have got to say.
63 OFFENDER: Yeah.
64 HIS HONOUR: And there is every prospect that you will gain it through this program, or gain a better understanding of it, and in addition to a range of other programs they have on offer. So I think it is important you do it, and you cannot be condemned if you are not accepted; that is not your fault. You are not going to breach an order by not being accepted. But I expect you to do everything within your power to get into this program, do you understand that?
65 OFFENDER: Yes.
66 HIS HONOUR: Did you want to say something to me about that.
67 OFFENDER: Yes, I have actually had a conversation with an elder Trevor Barker within the last two weeks about going up there, and he said my best form of rehabilitation is ongoing so they would be able to help me and he can write me a letter of recommendation within and a phone call, so it was already in mind to go there.
68 HIS HONOUR: Well, make sure you pursue that, you understand?
69 OFFENDER: Yes.
70 HIS HONOUR: It is important, it seems to me, for you.
71 OFFENDER: But there are a few numbers who can enrol at any one time, so that is obviously the only problem.
72 HIS HONOUR: Yes, all right. The second thing is, I have got two matters I want you to attend to, and these are not part of any order I am making so they are not a requirement, but I want you to undertake to me two things. The first is, I want you to speak to the Dandenong Aboriginal Co-Operative, because they have got a men's group program there which I understand is a program which addresses men's violent behaviour. Now I am not making it a requirement of the order and if you do not do it, you do not breach anything, but I want you to tell me now that you are going to take steps to find out about that program, and subject to your treatment, I mean, if you are going to Wulgunggo Ngalu then you might not be able to do it for a while, but I want you to promise me you will make contact with them and get involved in this program.
73 OFFENDER: Yep, I will give you my word I will go in there and speak to somebody about it.
74 HIS HONOUR: The second thing I want you to promise me is that you made mention in the course of the sentencing conversation of being involved with the Fitzroy All Stars Football Team. Now Uncle Wilkey who sat in the sentencing conversation is very heavily involved in that team and he tells me that they want people like you down there to assist. Now your playing days may be over, they may not, I do not know, but given the skills you had in the sporting arena, he tells me that you could be of a lot of assistance down there, maybe just doing something as simple as carrying the water, I do not know, but - - -
75 OFFENDER: I know where it is. I will definitely - - -
76 HIS HONOUR: I want you to promise me that you will get in contact with him or someone at the Fitzroy All Stars Football Team - - -
77 OFFENDER: I have Alan Thorpe's phone number as well, so - - -
78 HIS HONOUR: - - - and get involved there. I do not know what you will do down there but they will tell you.
79 OFFENDER: Yeah.
80 HIS HONOUR: And most importantly, you can do some good to the young fellas down there, particularly those who may be steering off the beaten path and getting in trouble.
81 The third thing I want to say to you is this. In offending of this sort it is rare that someone does not go to gaol for a very long time, and I have gone out on a limb and given you a chance. I want to tell you this frankly, if you get back on the grog and commit any offence for which you are convicted, you will come back in front of me, and I can tell you there will be no mercy at all; you will be going to gaol. So you have got that hanging over your head for four years. Clear on that?
82 OFFENDER: Yes.
83 HIS HONOUR: Very well, you can have a seat behind your counsel.
84 Yes, anything further Ms Bhai, Mr Strong?
85 COUNSEL: No, Your Honour.
86 HIS HONOUR: Ms Stewart?
87 MS STEWART (from body of court): No, Your Honour.
88 HIS HONOUR: Thank you.
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