Director of Public Prosecutions v Hood
[2024] VCC 317
•19 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01770
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V MONICA HOOD |
---
JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2024 | |
DATE OF SENTENCE: | 19 March 2024 | |
CASE MAY BE CITED AS: | DPP v Hood | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 317 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Aggravated burglary; common law assault; intentionally damage property; ex-partner; planned offending; short duration; Aboriginal offender; childhood instability and trauma; substance use; lessened moral culpability; prior offending;
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Nguyen v The King [2023] VSCA 210
Sentence: Aggregate term of eight months imprisonment and a one year community corrections order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused | Ms L. Andrews | Daniel Taylor Lawyers |
HER HONOUR:
Introduction
1Monica Hood, on 5 February 2023 you smashed your way into an ex-partner’s home and assaulted him. Almost the entire incident was audio recorded because your ex-partner called Triple 0 as you were breaking in and stayed on the line the whole time. The police attended the scene shortly after but by that time you had decamped. You were not arrested until 14 May 2023 when a car in which you were a passenger was routinely intercepted and you were identified.
2You were interviewed, made some admissions and some denials, were charged and released on bail after spending one day in custody. On 26 February 2024 I revoked your bail at your counsel's request as you had been remanded on other matters.
3On 14 March 2024 you pleaded guilty before me to one charge of aggravated burglary (that is with a person present and intent to assault), one charge of common law assault and one charge of intentionally damage property and a plea on your behalf was conducted that same day.
4It now falls to me to sentence you for your conduct. Your counsel, Ms Andrews, submitted that a combination sentence was appropriate and within range.
5The prosecutor, Mr O'Doherty, submitted that your offending called for a head sentence and non-parole period.
6In determining your sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[1] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[1] Section 5(2) of the Sentencing Act 1991.
Circumstances of the offending
7First, I need to return to the circumstances of your offending in more detail.
8The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[2]
[2] Exhibit A on the plea.
9In short at about 3 pm on Sunday 5 February 2023 you attended your
ex-partner, Evan Mills[3] unit to find him there with your cousin, Tiffany. You had known Evan for about a year and your relationship had been over since October. You confronted Tiffany about her relationship with Evan and the two of you ended up physically fighting, at which point Evan intervened. You then left the unit saying to Evan as you did so 'Just you wait, I'm coming back with the boys'.[3] A pseudonym.
10About an hour later you did return in a car with your brother, James Hood and two unknown males. Evan, who was outside, saw you coming and went back inside his unit and closed and locked all the windows and doors. You and your three male companions approached the unit and you yelled 'Open the fucking door dog'. Evan told you to 'Go away. Leave me alone, you're not coming in. I'm calling the cops' and retreated to his bathroom calling Triple 0 as he did. You did not go away though, instead you hit the front door with your fists and then smashed the front living room window with your fists and climbed in. That conduct represents Charge 3 – intentionally damage property, that is smashing the window, and Charge 1 – aggravated burglary.
11One of your companions started to follow you but retreated when Evan yelled out that he had called the police. This fact did not deter you however and you climbed over a couch that Evan had pushed up against the door to get to him. You struck him several times to the head with your right fist. He tried to restrain you by putting you in a 'bear hug' but you stomped hard on his foot and managed to wriggle free before climbing back out through the window and leaving in the same car with your companions. Throughout the incident, you can be heard on the Triple 0 call sounding aggressive and erratic.
12As a result of your assault Evan sustained abrasions to his neck, head and right ear. Ambulance paramedics attended along with the police but determined that he needed no further treatment.
13When interviewed you admitted having confronted Tiffany about her relationship with Evan and said that he assaulted you when he intervened in the dispute between you and Tiffany. You agreed you went back to the unit with your younger brother and two other males. You said:
'Yeah, I went back to that address, yeah. I just went back and said "Come on, come on out here now, cunt, I've got me brother with me. Come out here, ya weak dog. You wanna fuckin' hit women? You wanna hit women around cunt? Have a crack with my brother".'
14When asked why you returned to the complainant's unit you stated 'To fuckin' bash the cunt'. You admitted attempting to gain entry but denied actually doing so and said you all just went back to your mother's place after finding the door was locked.
Your personal circumstances
15I turn now to your personal circumstances which were outlined in defence written and oral submissions and a psychological report from Marlese Bovenkerk who is a forensic psychologist dated 22 February 2024.
Ms Bovenkerk interviewed you on 29 January 2024 and utilised various questionnaires and diagnostic tests. I have also drawn from the Corrections Order Assessment that I ordered and the Forensicare Report. I note there are some inconsistencies in the information provided which I regard to be more likely the result of you being an inaccurate historian than anything else.16You are a 42 year old Aboriginal woman who was born and raised in Bairnsdale. Your counsel and the prosecutor put it rather poignantly when they described your life as starting to unravel from the moment you were born when your mother, who was an alcoholic, abandoned you at the hospital.
17Your childhood was marred by instability. You have positive memories of living with your grandparents but you lived with different family members at different times and were sexually abused by some of them. When you told your aunt what was happening, instead of supporting you she told you to 'shut your mouth' and not cause trouble. You told Ms Bovenkerk that you felt 'unwanted and unloved' as a child.
18You struggled academically and behaviourally at school and were regularly in trouble. The school did not know of your problems at home. You completed Year 8 at school but then left when you got pregnant at age 13, subsequently giving birth to a daughter at age 14. You attribute being sexually active at a young age to your childhood trauma.
19When you were about 15 you sustained serious injuries in a car accident when your then boyfriend, who had been smoking cannabis, fell asleep at the wheel. Your Patient Health Summary confirms that you had surgery for your spine in 1997 and now you have ongoing back pain and arthritis.
20You have a limited employment history. Your longest period of working was as a cleaner in Queensland. You believe your last proper job was 17 years ago given your periods of incarceration and substance abuse.
21As well as your first daughter who is now aged 28 you have another daughter who is now aged 18. You did not raise either daughter due to your substance abuse and ongoing instability. At the time you saw Ms Bovenkerk it was a source of sadness to you that you were not in contact with either daughter on account of your substance use. According to the Corrections and Forensicare reports you rekindled your relationship with your oldest daughter last Friday when you both attended your brother's funeral. Further, those reports noted you as saying that you had a good relationship with your younger daughter who lived in Queensland with her father. Whatever the situation, you hope that your daughters will forgive you in the same way that you have forgiven your own mother as you have come to understand the difficulties that she faced.
22You have had two past serious relationships, both of which involved family violence. On one occasion you required hospitalisation after your partner threw you through a window.
23Your accommodation has been unstable for a number of years. You have couch surfed, stayed with friends and stayed with a friend of your mothers which did not end well, and an intervention order was taken out against you.
24You have limited family support. Your grandparents and parents are now all deceased, but you do have contact with an aunt and younger half-siblings and as I just mentioned, you have re-established your relationship with your oldest daughter. You are now in a relationship with a man by the name of Selwyn Marshall who does not use drugs and has stable employment. You intend to reside with him when you are released.
25In terms of substance use, you were exposed to heavy alcohol use in your family from a young age and you were regularly drinking alcohol by age 13. You also began using cannabis and heroin from age 13 and then progressed to methamphetamine, amphetamine, GHB, opioids and ketamine, including intravenous use.
26You have previously participated in drug and alcohol detoxification and rehabilitation programs without success. At the time Ms Bovenkerk assessed you, you were voluntarily participating in a detoxification program at Bairnsdale Hospital and voluntarily engaging with the Dual Diagnosis Service at the Gippsland and East Gippsland Aboriginal Co-Operative Ltd, otherwise known as GEGAC. You had been attending counselling sessions to manage your drug use and mental health at GEGAC since 3 May 2023. You told Ms Bovenkerk that you are motivated to abstain from drugs because you recognise that if you do not do something about your drug taking you will likely die. Further you want to mend your relationship with your daughters.
27You reported chronic suicidal ideation and multiple suicide attempts to
Ms Bovenkerk. You said that in late 2023 you spent three weeks in hospital due to a suicide attempt, although the Forensicare report only mentions more dated suicide attempts. You have lost two brothers to suicide, one only very recently. This was the funeral that you attended last Friday.28Ms Bovenkerk believed you met the criteria for a major depressive disorder. She noted that you had previously been diagnosed with Bipolar Affective Disorder and an Acquired Brain Injury which you attribute to multiple head injuries. Your Patient Health Summary indicates that in 2019 you were also diagnosed with Post Traumatic Stress Disorder stemming from childhood sexual abuse. Ms Bovenkerk recommended that you:
'Undergo additional assessment, longitudinal monitoring and psychiatric evaluation to inform diagnostic clarification with respect to your mental health presentation, particularly following a sustained period of abstinence from illicit substances. Given your complex history and a lack of contemporaneous medical information, further assessment is warranted for an accurate diagnosis related to Bipolar Disorder and your personality structure'.
29At the time of your Forensicare assessment your mood had improved since you saw Ms Bovenkerk. You were feeling 'upbeat' at that time and presented as reasonably mentally well. Ms Andrews indicated in oral submissions today that you were feeling upbeat as a result of attending your brother's funeral which was a sad occasion, but at which you reconnected with your oldest daughter and also your aunt. Forensicare endorsed Ms Bovenkerk's recommendation for further assessment and monitoring and recommended a mental health condition be attached to any corrections order.
30You have been on the Disability Support Pension since 2020 and according to the Forensicare report are in the process of applying for NDIS support.
31You were prescribed a range of drugs in the community including Olanzapine, an antipsychotic. Since being in custody you have been prescribed Olanzapine and methadone.
32You have now been abstinent from drugs for six to eight weeks which is a very long period for you.
33To your credit, you have been attending narcotics anonymous in custody as well as participating in a methadone program. You have also completed a respectful relationships course and are engaging well with the aboriginal liaison officers.
Objective Gravity of your offending and moral culpability
34Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the seriousness of your offences the maximum penalties of
25 years for aggravated burglary, 10 years for criminal damage and five years for assault make it perfectly clear.
35All domestic violence is serious, and it is no less serious because your relationship with Evan was over or because you are a woman. Your offending was made worse because it was planned and in the nature of revenge. People are not entitled to take the law into their own hands. Further, you did not act on your own, you took reinforcements in the form of three men. The fact it was a terrifying ordeal cannot be doubted given that Evan barricaded himself into the home and called Triple 0.
36On the other hand, although planned, what you did was still done in the relative heat of the moment and in response to you perceiving that Evan had assaulted you when he intervened in the fight between you and Tiffany. I draw no conclusion that Evan acted inappropriately but I accept that you thought that he did. That is no excuse for what you did but is some explanation. I also accept that because your offending occurred in broad daylight, was of short duration and caused only minor injuries, that overall, it falls towards the lower end of seriousness for aggravated burglary and assault. That is not to say it was not serious, rather it is to say where it fits within the spectrum of seriousness for those offences.
37You told Ms Bovenkerk that you were drunk at the time of the offending but not under the influence of any drugs. Being drunk does not lessen your culpability, in fact from your criminal history you would know that being drug or alcohol affected renders you more likely to get into trouble. However, I accept that your moral culpability is lessened by your history of disadvantage and your mental health issues. In other words, the principles in the cases of Bugmy and Verdins are invoked. These are matters outside of your control and you are not to be judged the same as someone without those burdens.
Impact of your offending
38I am required to take into account the impact of your offending on your victims and their personal circumstances.[4]
[4] Section 5(2)(daa), (da) and (db).
39I have not received a victim impact statement from Evan, but as I have said, from the way that he acted there can be no doubt that the incident was extremely frightening.
Current Sentencing Practices
40To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
41I was not referred to any comparable cases by either counsel but the most recent Sentencing Advisory Council Statistics of the higher courts for the offence of aggravated burglary indicate that 79.6 per cent of people sentenced for the offence over the five years between 1 July 2017 and 30 June 2022 received an immediate term of imprisonment ranging from less than one year to nine years, with three to four years being the most common sentence at 24.7 per cent. This wide variation of sentences reflects the vast disparity in seriousness of the offence.
Plea of Guilty, co-operation and remorse
42You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at an early stage, whilst the matter was still in the Magistrate's Court. In so doing you facilitated the course of justice and took legal responsibility for your crimes. You have also spared your victim and other witnesses the ordeal of coming to court to give evidence.
43Whilst I accept that you regret what you did, in the sense of wishing you had not done it, I am not satisfied that you are remorseful in the sense of feeling sorry for the harm you inflicted on Evan. Certainly Ms Bovenkerk noted that whilst displaying insight, you did not display remorse. You are not punished for a lack of remorse, it just means that you do not get any extra discount for it, and also it bears upon your future prospects, which is a topic to which I now turn, that is your character and your risk of reoffending.
Your character and risk of reoffending
44Your relatively long criminal history does not bode well for your prospects of rehabilitation. You have had community corrections orders in the past and have breached them. Indeed, you were on a community corrections order at the time of this offending, although it was a corrections order which only had a work component.
45Ms Andrews submitted that the difference is that this time you have undertaken detoxification and rehabilitation of your own accord, rather than it being part of a court order. Further, this is the first time you have appeared in the County Court other than on appeal. There is no doubt that change has to come from within. It does not matter how many times you are ordered to undergo drug and alcohol rehabilitation; unless you want to stay clean you will not.
46You also now have a lot of support in the community in the way of your partner and GEGAC. You also have the incentive of your two daughters, although obviously you had that before. You seem to be in a good place at the moment to actually turn your life around and I am cautiously optimistic that you will be able to do it.
The burden of imprisonment
47I take into account that since you were remanded on 15 February 2024 you have had a hard time. You have unexplained bowel issues which are under investigation, and you have had to cope with your brother's suicide. Further, Ms Bovenkerk opined:
‘That imprisonment would likely weigh more heavily on you than a person without your conditions. In individuals with a history of trauma, depression and anxiety there is the potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate Ms Hood's symptom profile. Given her personality vulnerabilities and psychiatric profile inclusive of an ABI, Ms Hood is considered at higher risk of inappropriate or disproportionate responses, unintentional sanctions and higher vulnerability to experiencing issues with other offenders and staff members, due to her emotional dysregulation and impulse control issues'.
48Ms Andrews submitted that this opinion enlivened both limbs 5 and 6 of Verdins. I accept that limb 5 applies, but not limb 6 which requires not only that the risk of deterioration be serious but also that the decline be significant.[5] Nevertheless I take Ms Bovenkerk’s opinion into account in a general way.
[5] Nguyen v The King [2023] VSCA 210 at [16].
Purposes of Sentencing
49I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
50Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is, you must not be punished any more than is proportionate and appropriate to your overall criminality and I must also be careful to avoid doubly punishing you for the same conduct. That is, whilst the aggravated burglary consists of you entering with an intent to assault, the assault is a separate matter that occurs after you enter. The criminal damage is also a separate matter.
51For offences of aggravated burglary, general deterrence and denunciation are primary sentencing considerations. That means it is necessary to impose sentences that deter people who might be minded to commit those sorts of offences from doing so. They need to know if they do it they will face severe penalties. In your case there is also a need for specific deterrence given your criminal history.
52That said, the principles of general deterrence and specific deterrence are moderated in your case because of your history of disadvantage and mental ill health. There is obviously also a need for community protection from you. In fact that need is increased because of your demonstrated inability to control your emotions. However, community protection is also best achieved by your rehabilitation, if that is possible.
53I have had you assessed for a community corrections order and you have been found suitable and indicated your consent.
54I have already set out in full the matters in your favour and against, in the course of these reasons. There is no need to repeat them. After weighing these competing considerations, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a combination sentence rather than a term of imprisonment involving a head sentence and non-parole period.
55You must understand that by doing this I am giving you an opportunity to prove yourself. Normally a longer term of imprisonment would be imposed for serious offending such as yours. As the statistics I read out to you show, the most common sentence is between three to four years for aggravated burglary. If you breach the corrections order the strong likelihood is that you will receive more time in custody.
Sentence
56Because the offences are founded on the same facts I am imposing an aggregate sentence for all three of them. I convict and sentence you on all three charges to an aggregate term of imprisonment of eight months and I declare that you have already served 23 days imprisonment, not including today in respect of this sentence. I order that this declaration be entered in the records of the court and the period be deducted administratively.
57On all charges I also impose a single community corrections order. The order will last for one year. It will commence upon your release from prison.
58You are to report to the Bairnsdale Community Correctional Centre within two working days of your release from prison.
59There are certain mandatory terms of the order and they apply to all corrections orders. That you must not commit another offence for which you could be imprisoned during the time the order in force. You must not leave Victoria without first getting permission to do so. You must obey all lawful instructions from and directions of the Secretary. You must report to and receive visits from the Secretary or delegate. You must let a community corrections officer know within two clear working days of you changing your address or job. There are other mandatory conditions as well.
60I have also imposed some special conditions and they are as follows:
·You are to be under the supervision of a Corrections officer for a period of 12 months;
·You are to undergo assessment and treatment, including testing, for drug abuse or dependency;
·You are to undergo assessment and treatment, including testing, for alcohol abuse and dependency;
·You are to undergo mental health assessment and treatment as directed;
61I have also included a condition that you participate in judicial monitoring. Now what that means is you come back before me. It is a relatively informal hearing before me. We only have the Office of Corrections and you. You do not need to be represented. That is for me to see how the order is going, both how you are complying with it and also how it is being administered by the Office of Corrections.
62The first judicial monitoring will be on 27 January 2025 at 9.30. It will happen remotely so you can appear via video link either from the Office of Corrections or if you have some other way to connect in, you can do it. The Office of Corrections will assist you in relation to that.
63Now Ms Andrews will explain that sentence and the corrections order in more detail but I reiterate that you must make sure you comply with it because if you breach the corrections order that is an offence in itself, and you are also liable to be re-sentenced for the original offences. I stress again that by imposing the Community Corrections Order I am giving you an opportunity to avoid further prison time. If you breach the order I will re-sentence you on the original offences and in that event you are likely to go back to prison.
Section 6AAA
64If you had not pleaded guilty to the charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of three years with a non-parole period of 2 years 4 months.
65So Ms Hood, do you understand the sentence that I have imposed? That is eight months, the time you have spent in custody comes off that, and then you have that one year corrections order.
66OFFENDER: Yes.
67HER HONOUR: All right. Now I have to sign the corrections order. We will organise for it to be sent to you in prison and you can sign it there, and it will be sent back to us. I have signed the order. We will show it to Ms Andrews and we will also send a copy to the prosecutor, and we will have a copy sent to you in prison. I will leave the Bench and I will allow the link to be open for a brief period while Ms Andrews talks to you.
68MS ANDREWS: As Your Honour pleases.
- - -
0