Director of Public Prosecutions v Hope
[2020] VCC 1738
•30 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00783
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAIN HOPE |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2020 | |
DATE OF SENTENCE: | 30 October 2020 | |
CASE MAY BE CITED AS: | DPP v Hope | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1738 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: recklessly cause injury - aggravated burglary - intentionally damaging property - attempted aggravated burglary - adjustment disorder arising out of the breakdown of relationship – remorse – good prospects of rehabilitation – general deterrence – denunciation – COVID-19
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991
Cases Cited: Morrison v R [2012] VSCA 222 - Hasan v R (2010) 31 VR 28
Sentence: 3 years, 11 months’ imprisonment and I fix the period of 2 years’ imprisonment as the term of imprisonment that you must serve before you will become eligible for parole - s6AAA: but for your plea of guilty I would have sentenced you to 7 years’ imprisonment with a non-parole period of 4 ½ years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. M. Roper (For plea) Mr D. Brown (For sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr G. Davis | Mornington Peninsular Lawyers |
HIS HONOUR:
1 Lain Hope, on Friday, 16 October 2020, you pleaded guilty to an indictment containing four charges, together with three related summary offences. In respect to the indictable charges, you pleaded guilty to recklessly cause injury (Charge 1); aggravated burglary (Charge 2); intentionally damaging property (Charge 3); and attempted aggravated burglary (Charge 4). In addition, you pleaded guilty to related summary offences: Charge 6, assault on Maria Drysdale, the wife of the victim of Charge 1 on the indictment; Charge 8, assault on William Barker, the occupier of the premises the subject of Charge 4 on the indictment; and Charge 10, causing wheels of a motor vehicle to lose traction.
2 The maximum penalties for these offences are: reckless causing injury, 5 years’ imprisonment; aggravated burglary, 25 years’ imprisonment; intentionally damaging property, 10 years’ imprisonment; attempted aggravated burglary, 20 years’ imprisonment; unlawful assault, 3 months’ imprisonment; and drive a vehicle causing loss of traction, 5 penalty units. In addition, in respect to the offence under the Road Safety Act, there is a discretion in me to make an order in respect of your licence to drive.
3 You admitted your prior convictions which have little relevance to the sentencing exercise.
4 Tendered as Exhibit A and read aloud in Court was the Summary of Prosecution Opening on Plea. In short, on Sunday, 19 January 2020, you were at your home at 6 Lemongrass Street in Botanic Ridge with your girlfriend and several friends. Together you and your friends had been consuming alcohol and watching Ultimate Fighting Championship (“UFC”) on television.
5 At about 7:00pm you got into your Holden utility and drove out of the laneway near your residence and commenced to do burn outs causing the tyres of your vehicle to lose traction, screech and produce smoke (related summary offence Charge 10).
6 Thomas Drysdale and his neighbour, Jamie Wickham, heard the burn outs and came outside their houses and observed you inside your vehicle doing burn outs. Mr Drysdale took out his mobile phone and video recorded your conduct. You noticed that Mr Drysdale was recording your conduct. You stopped your vehicle and ran straight at Mr Wickham who stepped out of the way and you turned your attention to Mr Drysdale and punched him to the head. Both you and Mr Drysdale got into a struggle during which you pushed Mr Drysdale to the ground and punched him on a number of occasions. Mr Drysdale suffered pain to his face, neck, right leg and little finger (Charge 1, causing injury recklessly).
7 Mr Wickham walked back to his house and called triple zero. Mr Wickham’s daughter, who was also at home, heard the fighting coming from outside and recorded the incident on her mobile phone from her bedroom window.
8 Whilst you were on top of Mr Drysdale, some of your friends grabbed you and dragged you off Mr Drysdale and back towards the laneway from which you had left your home. Your friends also moved your vehicle back to its garage. You continued to fight and struggle with your friends in an attempt to get back to Mr Drysdale. A number of neighbours heard the fighting and came outside to assist, many of whom called triple zero.
9 Mr Drysdale got up from the ground and walked to his home located at 20 Lemongrass Street, Botanic Ridge. At home Mr Drysdale’s wife, Maria, and their four children aged six, five and three years and the youngest child who was only two days old. Mr Drysdale informed his wife who had been asleep in an upstairs bedroom with her two day old son of what had occurred. Together Mr Drysdale and his wife, Maria, walked from the upstairs bedroom downstairs. As Mr and Mrs Drysdale walked downstairs, you forced the door to their house open with your hip and shoulder. The door flung open causing damage to the plaster wall behind it. You walked into the house and immediately started punching Mr Drysdale (Charge 2, aggravated burglary).
10 You and Mr Drysdale ended up on the ground fighting each other and during this fight Mrs Drysdale tried to break it up and was pushed over by you (related summary offence Charge 6). Each of the Drysdale children were in the lounge room and the older children witnessed this incident.
11 Again, your friends came and grabbed you and removed you from the Drysdale home and as they did so you struggled and resisted them. You were taken to your home at 6 Lemongrass Street and at this time your friend and neighbour, Mr William Barker, returned to his home located at
8 Lemongrass Street and was standing outside it. Mr Barker tried to calm you down, however you pushed Mr Barker into a brick pillar at the front of his address (related summary offence Charge 8). Mr Barker ignored you and went inside his home to have his dinner.
12 About 10 or 15 minutes later whilst having dinner, Mr Barker heard a commotion and looked up and observed you jumping the boundary fence dividing the two properties. You approached the rear sliding glass door and picked up a glass outdoor table and threw and kicked it, smashing the plate glass top. You grabbed the rear fly screen door and ripped it from its hinges, throwing it into the yard (Charge 3, criminal damage).
13 Mr Barker got up and held the glass sliding door to his home shut, stopping you from entering his home. Mrs Barker grabbed her two young children and took them upstairs. You began to punch the glass sliding door that Mr Barker was holding shut and continued to punch the door in order to gain entry into Mr Barker’s home (Charge 4, attempted aggravated burglary).
14 Once Mrs Barker had got upstairs with the children, Mr Barker opened the door and went outside and confronted you and you wrestled with him in his back yard.
15 As a result of the many triple zero telephone calls, police arrived at 20 Lemongrass Street and upon arrival heard yelling coming from the Barker residence. The police entered the back yard of the Barker home and found you being restrained by Mr Barker.
16 Police observed cuts to your feet and blood coming from your nose and observed vomit near your head which was on the ground. The police called an ambulance and placed you under arrest.
17 You were transported to the Alfred Hospital for treatment and later discharged and conveyed to the Dandenong Police Station. At 7.55am the following day you were interviewed under caution. You told the police:
·that you remembered getting into a fight with your neighbour, Bill Barker;
·that you, (meaning you and your friends) had all been watching UFC at your house during the day;
·that you had consumed about 10 alcoholic drinks consisting of Corona beer and whiskey;
·that after the UFC you and your friends were hanging out in the back alley;
·that you did not remember getting into your vehicle or doing a burn-out; and
·that you only remembered having a fight with Bill and nothing else.
18 You were charged on 20 January 2020 and bailed that day. Accordingly, at the time of plea you had spent two days by way of pre‑sentence detention.
19 Tendered as Exhibit C were three impact statements from William Barker, Maria Drysdale and Thomas Drysdale. Mr Barker felt angry, hurt and ashamed that his children saw what happened. Mr Barker’s co-parent relationship with his ex-wife and the mother of his children was already tense at the time of your offending and only got worse after the incident. Mr Barker’s former partner stopped their children staying over at his address as she did not feel it was safe for them anymore at that time. Owing to his injuries, Mr Barker spent two weeks off work and lost his job because of this. Fortunately, he was able to find other work shortly thereafter. During the period that he was unable to work, he felt stress in dealing with his former partner and their children, he was obliged to repair or replace things that you had damaged during the incident and he had to find somewhere new to live as well as a new job. As a working man, he suffered substantial financial loss, being the cost of replacement of the flywire door, replacement of the sliding door lock, replacement of the outdoor setting, funds were deducted from his rental bond owing to damage that you caused to the outside air conditioning unit and in addition he had costs relating to moving from his property.
20 Mrs Drysdale writes of feeling anxious every time she hears a knock at the door. Mrs Drysdale experienced difficulty sleeping and finds herself overly vigilant, constantly checking whether her house is secure, because she is frightened that someone may break in. She relives the incident that occurred in her house and thought at the time that her husband was being killed.
21 Mr Drysdale experiences anxiety and paranoia as well as trouble sleeping as he often relives the incident.
Mr Drysdale had never been in a fight before and, no longer felt safe in his own home. Like his wife, he became overly vigilant, constantly checking that all the windows and doors were secure to ensure that no one could break into his house.
22 By your conduct, you have profoundly affected each of your victims by your crimes.
23 Mr Davis of Counsel, who appeared on your behalf, tendered a number of exhibits, including Exhibit 8, a psychological report from Ms Gina Cidoni, psychologist, dated 25 September 2020. In conference with Ms Cidoni, you admitted that you had more alcohol to drink than you had told the police, perhaps some 12 to 15 standard drinks. You had consumed beer and whiskey whilst watching UFC. You did not know why you were prompted to take your utility out into the street to do burn outs. You recall becoming angered when a neighbour videoed your conduct and had a belief that you had been pulled from your car by one of your neighbours, a recollection which is false. Your memory was fragmented but your recalled waking in the Alfred Hospital and suffering bruising to both eyes, lacerations to your knees and fists. Ms Cidoni noted that you did not meet the criteria of any psychological disorder.
24 You were born in Clayton and raised in Caulfield by your parents until you were seven years of age. You are the only child of your parents’ union. After your parents separated, your father would visit every few months during your childhood and he remained single after the separation from your mother. Your father presently resides in Queensland. After the separation, you moved with your mother to Lynbrook where she re-partnered when you were aged about 11 years. This relationship broke down some 10 years ago and your maternal half-sister lives with your stepfather in Hampton Park.
25 You first left home at age 19 and lived in Carrum Downs with your first girlfriend who was aged 21 years. This relationship broke down and you returned to live in the family home at Lynbrook. Thereafter you had a relationship with another young woman for three years and you lived together for two years in Lang Warren.
26 You met the mother of your daughter, Dusty, and lived together with her for five years. Your daughter was born in August 2018. You lived with your partner, Brooke, in Lang Warren where your purchased a house there together. However, the relationship broke down in 2018 whilst your partner, Brooke, was pregnant with your daughter. Following your separation, there were protracted Family Law proceedings for a period of two years or so and during that time, you did not see your daughter for a period of eight months. Eventually final orders were agreed on in February 2020.
27 At the time of your offending you were in a relationship with a young woman named Bronte and had been so for a period of 12 months. Together you lived in rental accommodation in Botanic Ridge. After the offending occurred, you moved to Baxter and lived with Bronte’s family. However, you and Bronte grew apart and ultimately this relationship ended amicably in May 2020. Thereafter, you resided with your mother on French Island for some time and ultimately went to live in Tootgarook where you rent a house and share it with a house mate.
28 As to your education, you attended St Kevin’s Hampton Primary School until Grade 6 and thereafter attended St John’s Regional College until Year 11. You dropped out of school halfway through Year 11 and commenced a trade. You completed a Certificate IV in Construction and finished your indenture to your Uncle when you were aged 21 years. Thereafter you worked for a number of companies before you started your own business, Lainz Constructions when you were aged twenty-three. You employ two workers (see Exhibit 6). However, like many businesses, you have been impacted adversely by the Coronavirus pandemic and your work has decreased by 40 per cent.
29 Your health is generally good. However, you have an underactive thyroid for which you are medicated.
30 You were a sporadic user of cocaine in the Years 2018 and 2019. As part of the Family Law proceedings between you and the mother of your child, Dusty, you were obliged to undergo hair analysis for drug testing and as at 3 February 2020, you were drug-free (see Exhibit 10).
31 Ultimately Ms Cidoni opined:
“Personality testing was not indicative of any present major psychological or personality disturbances. There are no signs of depression, personality disorder or anything untoward. There were indications of maladaptive coping, low insight, and trust issues.”
32 Ms Cidoni believed that you suffered from an adjustment disorder arising out of the breakdown of your relationship with Brooke.
33 Tendered as Exhibit 9 were photographs of the injuries that you suffered as a result of your offending and as Exhibit 7, the Alfred Hospital Emergency discharge summary. In short, you underwent a CT scan of your brain, face and cervical spine and all that was revealed was that you suffered a moderate-sized right periorbital haematoma, subcutaneous swelling over the left zygomatic region and a left occipital scalp haematoma.
34 Tendered as Exhibit 3 was a report from Beach Street Family Medicine which recorded that you had reduced your alcohol consumption since January 2020 to now drinking only two to three times per week.
35 Immediately prior to your offending, you had consulted South Eastern Counselling and Psychology for counselling concerning ongoing access to your daughter, Dusty. You told the author of the report, which is Exhibit 4 on the plea, that you had access to your daughter reduced due to your abuse of alcohol and drugs, the use of which you denied to your counsellor. Mr Jakupi, psychologist, opined that you did not meet the criteria for any psychological disorder and that he had no reason to believe that your ability to parent is compromised in any way.
36 Tendered as Exhibit 5 were a bundle of references and in addition Mr James Henderson and Ms Jenna Hope, your sister, were called on the plea to give evidence on your behalf.
37 Mr Henderson was your stepfather for eight years and he swore that he had stayed in contact with you since that time. He swore that as a result of the separation from your partner Brooke, you became frustrated and unable to deal with the pressures that resulted from that separation, that you became “more angry than normal” and turned to drink. Mr Henderson swore that since your offending you have changed remarkably. He described this change as an “epiphany” which he attributed to your awareness that as a result of your conduct, you risk the loss of your freedom, your business, and contact with your daughter. Under cross-examination, Mr Henderson admitted that he had not had a lot of contact with you recently and that most of his information concerning you came from your sister.
38 Your sister, Jenna Hope, swore that she was your half-sister and that after the breakdown of your relationship with Brooke you increased your alcohol intake to manage your feelings. She swore that she had never seen you become angry as a result of being drunk. Ms Hope was present during your 15 minutes of drunken mayhem but gave no evidence concerning it. She swore that she picked you up from the Custody Centre and that you had no memory as to what had happened, save remembering seeing her while you were in hospital. Ms Hope swore that you were upset because you could not remember what you had done and that on being informed of your conduct, that you were remorseful and regretful for your actions and accordingly you were making efforts to reduce your alcohol consumption.
39 From the references of Ms Weiser and Mr Micallef, you are plainly a competent builder.
40 Your former partner, Brooke Martin, was one of your referees and set out in her testimonial the history of your relationship with her. It appears that post-separation, your relationship was an antagonistic one and this was made worse by your conduct that founds the present charges. However, of recent months you have been attending counselling sessions; you have attended on Ms Martin’s home to exercise supervised access to your daughter, Dusty; and your bond with your daughter appears to be growing over time. Your relationship with Ms Martin has improved to the extent that she agreed that you will co-parent your daughter without the need to return to Court to seek formal orders in this respect.
41 Mr Davis in both his oral and written submissions, which became Exhibit 1 on the plea, emphasised your early plea of guilty and the evidence that you are truly remorseful for and embarrassed about your conduct and expressed sorrow for the distress that you have caused your victims. Mr Davis emphasised that you are not violent and that you were surprised and humiliated when you learnt of the extent of your offending. Further, he emphasised that your offending was unplanned and occurred whilst you were in a state of intoxication. Further, he submitted that but for the state of your intoxication this offending would not have occurred.
42 During the course of the plea, Mr Davis, on your behalf, referred me to Morrison v R [2012] VSCA 222 in support of his submission that in your circumstances your intoxication at the time of your offending is a mitigating circumstance of your offending. In turn, Mr Roper of Counsel, who appeared for the Crown referred me to Hasan v R (2010) 31 VR 28 and in particular paragraphs [20] through to [35]. Mr Roper submitted that it would be quite exceptional before intoxication at the time of offending could mitigate an offender’s moral culpability and that you bear the onus of showing that you did not know what the effect of alcohol would have been on you at the time of your offending, which burden you had not met.
43 On the material before me, you are no stranger to alcohol. After the separation from your partner, Ms Martin, you sought solace in alcohol. However, there is no suggestion that you have become violent in the past as a result of the ingestion of alcohol. I regard your case as one of the rare cases where the voluntary ingestion of alcohol is a mitigating circumstance in that it has borne upon the degree of your remorse as you were shocked by your actions when you were informed about them. In turn, these factors impact upon your prospects of rehabilitation which I assess as being good. As you have no convictions for any crimes of violence, and there is no suggestion that you have become violent when intoxicated, to some extent the effect of your intoxicated state upon your judgment and self-control moderates the need for denunciation by the Court of your conduct.
44 You are a relatively young man. You entered your plea at the earliest possible opportunity and are entitled to the benefits that flow to you from that plea, being that it is evidence of your remorse and that it has utilitarian benefit. In respect to the issue of utilitarian benefit, this is particularly relevant to your plea of guilty to Charge 4 on the indictment. You have limited prior convictions that, for the purposes of this sentence, have little relevance. Likewise, in my view, specific deterrence has little role to play in arriving at an appropriate sentence in your circumstances. However, you must be justly punished, and you are an appropriate vehicle for the application of the principle of general deterrence.
45 Mr Davis submitted on your behalf that a Community Correction Order was the appropriate sentencing disposition in all the circumstances, whilst Mr Roper submitted that a combined sentence of imprisonment together with a Community Correction Order was within range. I cannot agree with either submission.
46 Giving full effect to all of the mitigating circumstances in your case, you assaulted an innocent bystander and when removed from the scene of that crime, you proceeded to that victim’s home and committed an aggravated burglary. You are not to be punished for your conduct in respect to Mr Drysdale whilst in his home. However, you assaulted his wife during the course of your conduct within the Drysdale home. Once again, you were dragged away from the scene of that crime to your own home where you assaulted your friend and neighbour, Mr Barker, and then some minutes later immediately prior to attempting to commit the crime of aggravated burglary, damaged property involving a fly screen door in preparation for your attempted aggravated burglary. To my mind, each of the submissions made by counsel are well outside the range of sentences appropriate for your offending.
47 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1, recklessly cause injury – 6 months’ imprisonment;
On Charge 2, aggravated burglary – 3 years’ imprisonment;
On Charge 3, intentionally damaging property – 3 months’ imprisonment; and
On Charge 4, attempted aggravated burglary – 2 years’ imprisonment.
48 I order that 1 month of the sentence imposed on Charge 3, together with 2 months of the sentence imposed on Charge 1 and 8 months of the sentence imposed on Charge 4, be served cumulatively upon each other and upon the sentence imposed on Charge 2.
49 In respect to the related summary offences, on Charge 6, I sentence you to 1 month’s imprisonment; on Charge 8, I sentence you to 1 month’s imprisonment; and on Charge 10, I convict and fine you $500.
50 This results in a total effective sentence of 3 years, 11 months’ imprisonment and I fix the period of 2 years’ imprisonment as the term of imprisonment that you must serve before you will become eligible for parole.
51 I declare that you have spent 16 days by way of pre‑sentence detention, not including today.
52 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 7 years’ imprisonment with a non-parole period of 4 ½ years’ imprisonment.
53 Is there anything arising out of this sentence, gentlemen?
54 COUNSEL: No, Your Honour.
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