Director of Public Prosecutions v Hornsby

[2016] VCC 1077

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00317

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HORNSBY

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2016
DATE OF SENTENCE:	27 July 2016
CASE MAY BE CITED AS:	DPP v Hornsby
MEDIUM NEUTRAL CITATION:	[2016] VCC 1077

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Mr P. Skehan

HER HONOUR:

1Andrew Hornsby, you have pleaded guilty to one charge of aggravated burglary (Charge 2), one charge of recklessly causing injury (Charge 4) and one related summary charge of unlawful assault being summary (Charge 9).

2The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for causing injury recklessly is 5 years' imprisonment.  The maximum penalty for unlawful assault is 3 months' imprisonment and or a 15 penalty unit fine.

3The prosecutor made application for a disposal order in respect of certain items and the making of that order was consented to.  The prosecutor also made application for the making of an order for the taking of a forensic sample from you.  The making of that order was opposed.

4The circumstances of your offending are set out in the Agreed Summary of Prosecution Opening which was tendered as Exhibit A.  The circumstances were in brief were as follows.

5This offending occurred on 16 November 2013.  The victims in this matter were a married couple, with whom you had been friends since secondary school.  You had ceased contact with them about six to seven years before this incident, due to your behaviour, but you would see them occasionally in the local area.  On 16 November 2015 at about 9.45 pm, you rang the victim's doorbell.  The male victim opened the front door and saw you standing there holding a glass stubby above your head.  Your attempted to hit the male but he stopped you and you struggled with him.  During the struggle, the stubby fell to the ground.  You appeared angry and aggressive and you were shouting, you were shouting something along the lines of, "What have you been saying?"  And you were also shouting something about the internet.  A struggle started and for about 20 seconds, you tried to enter the house.  You were able to overpower the male victim and force your way through the enclosed front courtyard and into the living area of the house.  Those circumstances constitute Charge 2 of aggravated burglary.

6You then kicked the male victim in the groin and started to punch him in the head and face with your fists and held him around the throat.  The female victim heard the struggle and came down the hall, holding a glass of wine.  She saw you assaulting her husband and forcing your way into the living area.  The female victim went to help her husband and hit you in the head with a glass of wine.  This caused a laceration to the side of your face that started to bleed.  The three of you struggled and both victims were trying to force you out through the front door.  The female victim picked up a full bottle of wine and tried to hit you.  You then grabbed her by the hair, pulled her hair and pushed her head into the hallway door and attempted to take the bottle from her. 

7The male victim started pushing back out through the front door.  You were still holding the female victim by the hair and head as you were being pushed out.  You then pushed the female victim's head into an aluminium glass door, between the living area and front yard.  The force of the push made the door break the plaster in the wall.  Fortunately, the victims were able to overpower you and push you out of the front door.  You then walked back to your home in Ascot Vale.

8As a result of the assault by you, the male victim received bruising to his upper left arm, tenderness to the groin area and a blood shot eye.  Those are the injuries that are the subject of Charge 4, recklessly causing injury.

9The female victim received bruising to her left elbow, right shoulder and middle of her back and bruising and pain to the right side of her face.  Those are the matters which are the subject of summary Charge 9 of unlawful assault.

10Later that evening, the police attended your address and found you in front of the property, shirtless and holding a towel to your face.  You appeared calm and told police you knew why they were there.  You were placed under arrest and an ambulance was called.  While waiting for the ambulance, you told police that your "Head was just fucked up".   You said you had been hearing noises and that you went to the victim's home to bash them for no reason. 

11You were hospitalised after that for a period of about eight days.  You declined to participate in a record of interview.  The matter was resolved on
1 March 2016 at the committal case conference stage. 

12The male victim in his victim impact statement which was tendered as Exhibit B, describes his physical injuries.  He also describes the emotional consequences to him of this incident.  He says he and he and his wife are extremely cautious on a day to day basis about where they go and what they do.  They describe the impact on them of an individual they had known for a number of years coming to their property and behaving in the way that you did. 

13The male victim also describes the financial impact on himself and his wife.  There had been an earlier incident two or three days before this incident where windows and a door were damaged in the victim's house.  That damage is not attributable to you, but it does mean that the victims were in a vulnerable state when this incident occurred, that you were involved in.  As a result of these two incidents, the victims decided to sell their house and that has caused them to have financial consequences as well as the emotional loss of their home. 

14The female victim in her victim impact statement, Exhibit C, describes the impact on her and husband of what describes as a "violent home invasion."  She describes the significant impact that that has had on her life, including the emotional impact.  She says she is now subject to severe anxiety on occasions that she was not prior to this incident.  She also refers to her existing vulnerability because of the previous incident.

15She describes on her of their decision to move home.  Tellingly, she says that whilst the physical injuries have healed, the same cannot be said for her mental state.  She says that security and safety have become her first priority.

16In sentencing you, I have taken into account your personal circumstances, I have derived those circumstances from your counsel's submissions and a number of exhibits that were tendered on your behalf.  The exhibits to which I particular refer are the report of Jeffrey Cummins, psychologist, dated
22 March 2016, Exhibit 2, letter from Inner West Area Mental Health Service, Exhibit 3, and report of Dr Carmelo Genovese dated 7 July 2016, Exhibit 4.

17You are now 36 years old.  You were brought up in the Melbourne area.  You had a stable and unremarkable upbringing.  Your parents were and remain loving and supportive.  You have one brother and three sisters.  Your parents and family members were in court to support you.  You began experiencing behavioural difficulties in secondary school.  You were asked to leave one boarding school in Year 9 due to disruptive behaviour and refusal to complete homework.  You were asked to leave a second boarding school in Year 10 for similar reasons.

18Between 1995 and 2009, you had periods of employment of up to two or three years, principally in the glazing industry, but also in working with horses.  You left employment in 2009 as a result of mental breakdown.  In 2009, you were admitted as an involuntary patient at the Royal Melbourne Hospital.  You were diagnosed with cannabis induced psychosis.  You have had further admissions as both an involuntary and voluntary patient.  You told Mr Cummins that you had not been taking medication as prescribed and that you were un-medicated at the time of these offences. 

19You told Mr Cummins that before this incident, you had been having thinking involved delusional thoughts of  being god and believing that your mother had been raped and killed, despite the fact that you were aware that your mother was alive.  This apparent inconsistency appears from the reports to be related to your thinking that your family may able to be in some way deceased but then come back to life.   You told Mr Cummins that on the night you went around to the victim's house, you had been off medication for at least two months and you had been drinking alcohol.  You said you probably had four to five stubbies of beer.  You said you did not really know why you went around there, but remembered thinking you needed to go and assault the male victim.  You said it might have something to do with previous associations to do with drugs.  Later on in the interview with Mr Cummins, you said that it was connected with ideas that the male victim was responsible for harm to your mother.

20Mr Cummins says that it is his opinion that at the time of the offending, your "Perception, judgment and reasoning ability was impaired as a result of his mental health problems, which would appear to be summarised as a drug induced psychosis and paranoid schizophrenia, and also most probably a major depressive disorder." 

21It is Mr Cummins' opinion that your mental health would inevitably deteriorate if you were imprisoned, in large part due to the separation from your parents, who have been very supportive of you.  Mr Cummins says you are effectively in a dependent relationship with them.  Mr Cummins further says that there would be no guarantee that you could be appropriately medicated on anti-psychotic medication if you were incarcerated. 

22Dr Genovese's report is extremely useful in detailing your mental health history from 2010 and your treatment at the Royal Melbourne Hospital, through the Inner West Mental Health Service and the Waratah Service.  Mr Genovese says that you confirmed to him you had not been taking your prescribed medication, at the time of this incident.  He describes your problems in the past with the use of cannabis which was principally the use, as I understand it, of a synthetic cannabis. 

23In speaking to Dr Genovese, you described your ideas that the male victim had in some way caused harm to your mother and apparently had not necessarily abandoned those ideas but understood that you ought not to have acted in the way that you did on this occasion. 

24Dr Genovese confirms that you were admitted on 17 November 2015 for nine days as an involuntary patient.  He says that when you were discharged you were maintained on a depot anti-psychotic medication and were made a voluntary patient on 1 December 2015, as you were compliant with treatment and monitoring.  He says that at various clinical reviews over 2016, you have not admitted any residual psychotic systems, but when he spoke to you on
27 June 2016 and 4 July 2016, you described, "Firmly entrenched well-formed psychotic ideation, which was consistent with his long-standing delusional themes." 

25It is Dr Genovese's view that you continue to experience active phenomena, which may be a result of your having used cannabis on some occasions prior to speaking to him.  You told Dr Genovese that you wish, that you wanted to cease using the synthetic cannabis and would be attending substance abuse clinician in respect of that matter.  You told Dr Genovese repeatedly that you did not wish to pursue or harm the male victim, "Because of the mess it's got me into." 

26Dr Genovese says the option exists to make you an involuntary patient if you mental health state deteriorates.  He describes potential increases to your medication and says that you are currently compliant with your medication.  He confirms that at the time of the offending, your ability to reason was significantly affected by your psychiatric illness.  He says that continues to be the case and the treating team are ensuring you are compliance by regular monitoring and review.

27Dr Genovese says that the cause of the violence was likely a consequence of an increase in the intensity of your psychotic symptoms, consequent on your cessation of your antipsychotic medication.  He says additional factors are your medication non-compliance, which stems from a lacking of understanding of your psychiatric condition.  He says another factor is your substance abuse, together with alcohol consumption, which likely would have had a disinhibiting effect on you. 

28Dr Genovese says that you have often not been detained as an involuntary patient, despite the severity of your illness and your lack of insight because you are seeking help and on the whole you are cooperative with treatment. 

29Defence submissions were made both orally and in writing.  The written submissions were tendered as Exhibit 1 being Plea and Mitigation Outline of Submissions.  Your counsel submitted that a community correction order would be the appropriate disposition in this case.  Your counsel relied on your plea of guilty and your remorse, your lack of criminal history and the fact that you were injured in this incident. 

30Your counsel also submitted that it should be taken into account you had been an involuntary patient for a period of nine days after the incident.  Your counsel submitted that your moral culpability would be reduced because of your mental impairment at the time of the offending.  He submitted you are an unsuitable vehicle for general and specific deterrence because of your mental impairment and that your mental health would be negatively affected by imprisonment.  Your counsel submitted that all six Verdins principles should apply in mitigation of sentence. 

31Your counsel submitted that community protection would not be a large factor because of your behaviour being aberrant and a tailored sentence being applied.  Your counsel argued that your condition had stabilised and you had continuing family support.  Your counsel said that your family were now aware of the potential consequences and would be, as I understood it, increasingly vigilant as to difficulties with your mental health issues.

32Your counsel submitted that general deterrence ought not to be a factor in sentence because you were so unwell and that specific deterrence had effectively incurred due to your compliance and anxiety about the proceedings. 

33As I understood it, in oral submissions, your counsel conceded that community protection would be a paramount concern and would support the imposition of a community correction order.

34The prosecutor in sentencing submissions said that community protection would be the paramount consideration, given the risks of reoffending by you if you were non-compliant with your medication.   The prosecutor submitted that specific deterrence ought to have some application, particularly because of your admitted use of cannabis.  The prosecutor addressed the serious nature of the offending.  The prosecutor accepted that Verdins principles would apply.  The prosecutor did not take issue with the imposition of a community corrections order.

35Andrew Hornsby, this offending was serious.  You engaged in a violent and disturbing intrusion into the victims’ home.  This was, what has been described in some cases, as a confrontational aggravated burglary.  You went into their home with the intention of confronting them about an issue which you believed was to do with them or at least the male victim, having caused harm to your mother.   This type of aggravated burglary is treated very seriously by the courts.  The maximum penalty for aggravated burglary is 25 years' imprisonment and the courts have repeatedly said that this sort of aggravated burglary will attract a significant sentence of imprisonment.

36The victims in this case had been long standing friends.  You threatened them first with a bottle.  It must have been clear to them that you were irrational which must have made the situation even more frightening for them.  There was a physical struggle and resistance by you.  You inflicted injuries to the victims.  I accept you were injured but that was in the course of them attempting to get you out of their house.  They were injured in the course of that struggle. 

37They describe the significant and ongoing impact on them.  They were already vulnerable due to an unrelated incident to two or three days earlier.  It is to be hoped that with ongoing support and time, they will be able to put this incident behind them.

38There are a number of matters that operate in mitigation of sentence.  Your plea of guilty was made at an early stage.  You indicated early, even in your discussions with police an acceptance of responsibility.   I accept that you are genuinely remorseful insofar as you are able to be given the constraints of your mental illness.

39You have no prior history of violence but I consider there is a significant risk of you reoffending given the matters in the reports, if you do not comply with your medication.  That risk increases if you use cannabis or abuse alcohol.  You have been compliant with your medication since offending but to continue to suffer from mental ill health and somewhat delusional thinking.  I consider that your prospects of rehabilitation must be regarded as moderate at best.  Those prospects would potentially improve if you could obtain employment, particularly in an area that you enjoy.

40I accept that all the Verdins principles apply to full effect in this case.  I consider that you have some degree of moral culpability.  Your attitude to police immediately after the incident shows that you had some appreciation of having done wrong.  That said, I accept that your mental ill health meant that any awareness of wrong doing would be overwhelmed by delusional thinking.  Your moral culpability is very significantly diminished and you are not an appropriate vehicle for general deterrence.

41I consider that some weight can be given to specific deterrence, to encourage you to comply with your medication regime and to cease your use of cannabis or synthetic cannabis.  It appears that you do realise what the consequences may be if you are not compliant with your medication and if you engage in drug use or alcohol abuse.

42I agree that community protection is the paramount sentencing consideration.  It is vital that you continue to be treated and monitored.  In my view, a lengthy community correction order is the best means of ensuring that this will continue under the supervision of Community Corrections and the Court.

43I intend, if you consent, to impose a community correction order which includes community work; that will be some aspect of punishment but will also enable you to make a positive contribution.

44Could you please stand, Mr Hornsby.  Mr Hornsby, I have outlined the conditions that I propose to impose and I will repeat those.

45I propose to impose a community correction order with conviction which would last for four years.  You would be required to do 250 hours of community work, be required to undergo assessment and treatment for drug, alcohol and mental health issues.  You would be required to be under the supervision of a Community Corrections officer.  You would also be required to comply with the directions given to you by Community Corrections officers.  You would also be required not to commit any further criminal offence during that period of four years.

46If you breach the order by committing any offence or by not doing what you are directed to do, you may be brought back to court before me.  If you have breached the order by further reoffending, then I would have no hesitation in resentencing you in respect of this matter, particularly if any further offending involved violence.

47You have had other conditions of the order explained to you by the Community Corrections officer.  Do you consent to the making of an order in those terms?

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  Thank you.  I have also made the order for disposal of certain items that were sought.  I make an order for the taking of a forensic sample from you.  I have decided that that order is justified in the circumstances, given the seriousness of your offending.  I consider that there is a public interest in such an order being made given the potential risk of further offending.

50I am required to tell you that when you attend at a police station for the taking of a sample, the officers will take a sample by way of a saliva swab from your mouth.  I am sure that you will co-operate with them.  If you do not co-operate, they are entitled to use reasonable force and to take a blood sample.

51In considering a declaration of the discount given to you for your plea of guilty, I have found this a particularly difficult task in this case.  To consider what you would have been sentenced to had this matter gone to trial is difficult given that even if it had gone to trial, no doubt you would still have your mental health problems.

52The best I can do is to say that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months to be followed by a four year community correction order.

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