Director of Public Prosecutions v Hoye

[2024] VCC 623

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01696

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HOYE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2024; 7May 2024
DATE OF SENTENCE:	7 May 2024
CASE MAY BE CITED AS:	DPP v Hoye
MEDIUM NEUTRAL CITATION:	[2024] VCC 623

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW- Sentence

Catchwords:             Intentionally Causing injury – Common law Assault – Contravention of

Intervention Order- Mental Health

Cases Cited:             DPP v Reynolds (a pseudonym) [2022] VSCA 263; Pasinis v The Queen
[2014] VSCA 97; Mercer (a pseudonym) v The Queen [2015] VSCA 257;

Filiz v The Queen [2014] VSCA 212; Kalala V The Queen [2017] VSCA

223

Sentence:                 22 months imprisonment followed by an 18-month community

corrections

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Ms H. Anderson	Victorian Aboriginal Legal Services

HIS HONOUR:

1Michael Hoye, on 27 March 2024, I granted your application for an indication of the sentence that would be imposed if you pleaded guilty to three charges, being intentionally cause injury, a common law assault and a contravention of an intervention order.  The indication was that a sentence of 22 months imprisonment followed by an 18-month community corrections order would be imposed.  You accepted that indication and pleaded guilty on arraignment.  I then had you assessed for a community corrections order, and the report that I have been provided indicates that you were found suitable.  In giving the sentence indication, I provided detailed reasons.  I will refer to and repeat much of what I said at that hearing.

2As of September 2022, the adult victim had the benefit of the protection of an intervention order - that is, protection from you.  On 28 September 2022, you saw the victim in Frankston, and all was fine at that point.  Later on, you went to her house.  By the time you got there, and certainly while you were there, you were agitated, and this escalated over the next few hours.  You remained in a bedroom in the house, but it was plain to all that you were angry and agitated.  The male victim came to the house later in the evening.  At that point, in the evening, you armed yourself with a knife. 

3The female victim was concerned and arranged for her children and herself to escape without you knowing - that is, over fences and the like.  When she was outside the house and on the street, you did come out to her.  You went to where she was, with the children.  You then attacked her, grabbing her by the throat in a choke-type hold and shaking her.  You had the knife with you at the time.  She was able to break free.  You punched the male victim, who had come to try and assist, before you then cut the female victim with the knife you had in the area of her throat.  She went to the ground, but you continued to punch and assault her.  The police were called.  After you were arrested, the victim, who ran, was located and then treated with stitches and kept in the hospital for some time.  I have seen photographs of the injuries, and it is quite plain to me that she was very lucky, but so too were you - that is, lucky that more serious injuries were not the result of this attack or, at worst, that this would have been a fatality.

4This type of violence is shameful.  There are many statements by our appellate courts condemning violence of men inflicted on women.  This was perhaps best captured by the joint judgment of the majority in DPP v Reynolds[1], a family violence case.  At paragraph 71, the majority expressed the following under the heading 'Family violence sentencing principles'; stating:

Regrettably, this is yet another example of appalling family violence which has come before the courts. Family violence is a blight on society, which this Court ‘has been at pains to denounce.

It is convenient to restate what this Court has said about family violence, and how this informs the sentencing process.

This Court in Pasinis[2] held that the key to protecting victims of family violence:

“…lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.”

[1]DPP v Reynolds (a pseudonym) [2022] VSCA 263

[2]DPP v Reynolds(a pseudonym) [2022] VSCA 263, citing Pasinis v The Queen [2014] VSCA 97

5The judgment goes on:

Soon afterwards, and in a similar vein, this Court said in Mercer (a pseudonym) v The Queen:[3]

“This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences.”

And again in Kalala v The Queen:[4]

The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen, the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.

More recently, in DPP v Evans this Court stated:[5] “Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.”

[3] DPP v Reynolds(a pseudonym) [2022] VSCA 263, citing Mercer (a pseudonym) v The Queen [2015] VSCA 257

[4]DPP v Reynolds(a pseudonym) [2022] VSCA 263, citing Kalala v The Queen [2017] VSCA 223

[5]DPP v Reynolds(a pseudonym) [2022] VSCA 263, citing DPP v Evans [2019] VSCA 239.

6And the judgment in Reynolds concluded:

As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending.

7All of these cases, as I have indicated, emphasise the need for deterrence and denunciation.  Further, the courts have made clear that sentencing judges must impose stern sentences that in practice express the community's intolerance with what is rightly described as a scourge in our community.

8The gravity here is elevated because of the use by you of a knife and the prolonged attack when the victim was on the ground.  As I have indicated already, it was by sheer luck that this was not a much more serious outcome.  Here your moral culpability is significant, though I will say more of this when dealing with your mental health.  Your moral culpability is elevated because there was an intervention order that the court set in place to protect the victim. 

9Further, your long criminal history, including for violence, has to be considered, although of late, your priors are more for breaching intervention orders, not necessarily with additional violence, and driving offences.  Your violent offending, which saw you imprisoned for lengthy periods of time by the County Court, for offences in 2007, 2012 and 2013, and there were other relevant offending dealt with in the Magistrates' Court in 2005, 2003, 2001 and 2000. 

10I have also in this case read a victim impact statement from the male victim which makes clear there have been significant adverse impacts upon him.

11As to your personal circumstances, you are now 45, an Indigenous man raised in Gippsland.  You were exposed to violence in poor, dysfunctional family circumstances.  You had limited schooling and employment.  You have been in the grip of alcohol - and, in particular, drugs - most of your adult life.  You had some better circumstances in Mooroopna prior to your arrest where you had stable housing.  You have not been, as I see it, sent to gaol for some time, and there is some basis for optimism.  Your plan, on your release, is to move back to the Gippsland area, where you have solid family and cultural connections.  You hope to continue with your art, which is something you have dedicated yourself to of late - in particular, while on remand.  It is hoped you can connect with or secure a NDIS plan.

12The assessment for the community corrections order upon your release indicated that you had demonstrated a level of greater motivation and willingness to engage with Corrections, more so than in the past, and with a desire to make long-lasting changes to your lifestyle.  The report indicated, and I emphasise, that is very much a matter for you to achieve these changes by utilising the services that are available to you through Corrections and hopefully through the NDIS.

13You were seen again by Dr Cunningham, who provided a report to the court in late April, 29 April 2024.  He was of this opinion in his conclusions:

In my opinion, Mr Hoye does not present with a mental illness. He continues to abuse significant amounts of illicit substances and associate with drug using peers. He continues to be largely unemployed but has sourced stable accommodation. Unfortunately, Mr Hoye was not able to capitalise on his stable accommodation by engaging with employment and reducing his use of drugs. In my opinion, Mr Hoye presents with significant symptoms of institutionalisation. He struggles to live independently in the community and reverts to old behavioural patterns of drug abuse. Mr Hoye’s history of incarceration and offending has led to antisocial attitudes that contribute to his dysfunctional relationships with others, drug use and offence behaviour. Mr Hoye’s drug abuse and association with drug abusing peers are his main offending risk factors. Mr Hoye’s antisocial attitudes and symptoms of institutionalisation underlie these risk factors.

14Dr Cunningham, who is a very experienced forensic psychologist, concludes that, although he recognises disposition is solely for the courts, from the psychological perspective, he indicates you would benefit from a disposition that facilitates your rehabilitation:

In my opinion, Mr Hoye would require engagement with community based case management to improve his ability to live independently. He would likely require outreach community support. He would need to abstain from drug abuse and maintain stable accommodation and employment. Ceasing drug use and association with drug using peers would be the main factors in reducing his risk of reoffending.

15It is certainly my view that the corrections order that I am imposing, which will be taken up when you are released from prison reasonably soon, and if you
re-establish yourself as best you can in the Gippsland area, there are still high risks that you will not be able to live in stable circumstances  independently and you will seek out other old associates.  It is at this point, Mr Hoye, that you must simply take a different pathway, and be with your family and others that will not drag you back into drug use.

16I have taken into account your plea of guilty.  It was a valuable one and certainly will relieve witnesses of the added trauma of giving evidence.

17I indicated to you that the sentence I would impose would be a 22-month sentence with an 18-month community corrections order.  Doing the best I can with those charges, rather than an aggregate term with two different victims, I impose a sentence of 20 months for the intentionally cause injury, four months for the common assault and two months for the intervention order breach.  Those are all prison sentences.  I order that two months of the sentence on the common assault be cumulative upon the sentence on the intentionally cause injury.  That is a total effective sentence of 22 months.

18It will be in combination with an 18-month community corrections order.  That community corrections order attaches to each of those offences.  The conditions of the community corrections order are that you undergo treatment and rehabilitation for your drug problems and that you be under supervision.  There was some sense there might be a work component, but I am moving away from that - you have spent a good deal of time in prison and I am concerned that you might re-engage with others on work programs that are not beneficial to you.  There was an assessment as to your suitability for a community corrections order.  No report was received, but I have been informed that the community corrections did not recommend a mental health component upon the CCO.  Just bear with me.  I will return back to that.

19What I want to happen is that you connect with your medical practitioners back in Gippsland for a mental health plan, you need help in that regard.  But one of the key beneficiaries that I hope you take up is seeking out a connection with or securing a NDIS plan.  That would be very much to your benefit.  So, there will be no condition on this order regarding mental health, but certainly I am very concerned that you do get assistance through your general practitioner and a mental health plan. 

20Mr Hoye, you are now heading towards your late 40s.  You will be on this order for a significant period of time.  It is time to stop.  It is time not to resort to violence.  It is time to resort to more mature responses to the difficulties that life might bring about.

21So had you pleaded not guilty to the offending, I would have imposed a lengthy gaol term of three years and eight months with a non-parole period of two years and eight months.  I should also have said that with respect to the time you have spent in custody, it has been calculated at 586 days and, that figure having been reckoned, I will declare it as part of the sentence of imprisonment that I have just imposed - that is, 586 days will be calculated and deducted from the 22 months that I have imposed.

22The next part of this is the conditions of a corrections order that apply to everyone need to be run through or you need to understand them because I am going to ask as to whether you consent to the order shortly.  So, everyone on a corrections order, the key requirement is that you do not commit another offence which is punishable by imprisonment in the period of time you are on the order, so that is the 18 months.  If you commit any crime, you will be back before me.  Literally all bets will be off.  You will go back to gaol.  Do you understand?

23OFFENDER:  Yes.

24HIS HONOUR:  Yes.  Do not breach this order.

25OFFENDER:  Yeah.

26HIS HONOUR:  The other aspects of the order that are critical are that you cooperate with the Office of Corrections.  You have got to tell them when you change your address.  You have got to tell them if you get a job or if you change your job.  You have got to report to the Office of Corrections within two clear working days of you being released.  I expect that will be at Gippsland if that is where you are going - - -

27OFFENDER:  Yeah.

28HIS HONOUR:  - - - but wherever it is, you work it out with them.  You have got to get there within two working days.

29OFFENDER:  Yeah.  Yep.

30HIS HONOUR:  You have got to accept visits from them and so on.  So, they are the conditions that apply to anyone on the order.  A final one is you cannot just leave the State of Victoria without getting approval.  You cannot just go over the border for some reason.  They will probably give you approval, but you have got to ask for it.  Just pause for a moment.  Mr Cameron, Ms Anderson - - -

31MR CAMERON:  Yes, Your Honour.

32HIS HONOUR:  - - - the mental health aspect of this, a report has become available.  It has not been seen by the court until this moment really.

33MR CAMERON:  No.

34HIS HONOUR:  It gives solid history and concludes that he can be referred to his local mental health should that be required or should he require an urgent mental health assessment if he is acutely unwell.  It recommends at the
end - 'Does the person require ongoing mental health care to be made a requirement of the community-based order?', and it says 'It is respectfully recommended that a mental health treatment and review condition be considered should he receive the community corrections order.  If yes, is such care currently available?', and it says 'Mr Hoye is to participate in a mental health community program with his GP and is planning to take up this, including antidepressants.   In the community he is to participate in regular psychology and source this through his local Indigenous organisation.  He may benefit from neuropsychological assessment'.  'Can he be managed?'  'It's my opinion the current mental state of Mr Howe will impede his ability to engage in that, struggle during the interview independently and may need assistance from outreach work in aid of participation.  He does not currently have an emergency mental health follow-up'.  I am now of the view with that there should be some oversight of his mental health via Corrections, and I will make that part of the program.  So there will be a mental health - - -

35MR CAMERON:  Totally sensible, Your Honour.

36HIS HONOUR:  Thank you.

37MR CAMERON:  I have nothing further to say.

38HIS HONOUR:  I do not know why we (indistinct words) - - -

39MR CAMERON:  Did not get it yesterday.

40HIS HONOUR:  Yes, I do not know why.  Anyway, is there any other orders that I have to make here?

41MR CAMERON:  We were seeking forfeiture of the two blades.

42HIS HONOUR:  Yes, that will be signed, yes.

43MR CAMERON:  Thank you.

44HIS HONOUR:  Anything else, Ms Anderson?

45MS ANDERSON:  No, Your Honour.

46HIS HONOUR:  All right.  So with all that information, supervision, drug programs and mental health treatment and assessment and guidance by Corrections and oversight, they are the program conditions, there is no community work, all right - - -

47OFFENDER:  Yeah.

48HIS HONOUR:  - - - do you consent to doing the order, the corrections order?

49OFFENDER:  Yeah.  Yes I do.

50HIS HONOUR:  Yes, all right, thank you.  We will note that on the order, that you gave your consent orally in this virtual hearing.  So, I will sign that order and ultimately someone will work out when it is that you are to be released.  But do not do anything that sends you back straight away.

51OFFENDER:  Yeah.

52HIS HONOUR:  It is the most difficult time, you know better than me, is the first few days, first few weeks, right.

53OFFENDER:  Yeah.

54HIS HONOUR:  Thank you.

55MS ANDERSON:  As Your Honour pleases.

56MR CAMERON:  Thank you, Your Honour.

57HIS HONOUR:  Thank you very much for your assistance.

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