Director of Public Prosecutions v Hoye
[2023] VCC 396
•4 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT LATROBE VALLEY
KOORI COURT
CR-11-02314
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JAMES HOYE |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 April 2012 | |
CASE MAY BE CITED AS: | DPP v Hoye | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 396 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Taylor | |
| For the Accused | Mr B. Cranswick |
HIS HONOUR:
1 Michael James Hoye, you have pleaded guilty to one count of causing serious injury intentionally. That crime carries a maximum penalty of 20 years imprisonment.
2 You are now 31 years of age. You pleaded guilty at the earliest opportunity and must get the benefit of that. I have no hesitation accepting that you are now at least truly remorseful for what you did. You must also get the utilitarian benefit of your plea of guilty. The Crown may or may not have had some difficulty with gaining a conviction. But at least by pleading guilty you saved your unfortunate victim from the experience of having to give evidence, either in a trial or as I understand it at committal. You also pleaded guilty on arraignment to one summary charge of breach of an intervention order. That particular crime carries a maximum penalty of two years. The serious injury is in fact the breach and accordingly, whilst I intend to impose a custodial sentence for the breach, it will be served concurrently.
3 You do have prior findings of guilty for violence and serious violence. At the age of 31 you have now effectively been in custody, barring some seven months, for about five years. You have done a total of three or four gaol sentences and on top of that, as I calculate it, there was a significant Youth Justice sentence as well. Before I go into the nature of this offending, I think I should outline the circumstances surrounding it.
4
On 14 December 2007 you were sentenced to six years with a minimum term of four for intentionally causing serious injury to a 20 month old child. You do not get sentenced for the same thing twice but that is not of great comfort to a sentencing judge in this situation. I do not intend to go into the detail of that at all other than to say that to any objective observer it was a dreadful assault. One of the consequences of that assault was that the child was Koori, as are you. That has significant consequences insofar as the sentence that I am imposing is concerned. In any event, you were released on parole on
19 November of 2010. At that stage you owed one year, 11 months and 20 days. On 8 July 2011 this offending occurred. On 19 July 2011 your parole was breached and you were reclaimed. You then commenced doing that one year, 11 months and 20 days. You have been undergoing that sentence ever since. You have an early release date of 28 June 2013. It is important in this process to understand that any sentence that I impose because of the cumulative provisions of the Sentencing Act will not even start until 28 June next year. I can in certain circumstances or exceptional circumstances order that a sentence be served concurrently with parole that is being undergone. That is rarely done and in my view I can see no reason to do it here. That is a matter for the Parole Board, not me.
5 When the plea started it seemed that you had something in the order of 270 days pre-sentence detention. Upon the assistance of the police, your indent indicated that you only have 10 days. The situation is that any sentence that I impose will be served in protection because of the nature of your previous sentence. Also, and this is of real significance with you, because, as I understand it, the child subject of the previous assault was Koori, you will not only be protected from other prisoners but you are at risk even being in protection with other Koori prisoners. Such conduct is very much frowned upon. You, upon your release of seven months or so, had good contact with Koori Connect and with Linkout. You must undergo the rest of the sentence that I impose, with very little contact with your culture. I think that is a terrible thing but there is not much that I can do about it. I understand that liaison officers and the like in the gaol should be able to make contact with you but that is an isolation which I regard as a significant punishment in itself.
6 When the sentence I impose, and the sentence I must impose, commences you would have been in gaol for six of the last six and a half years and you are still only 31. The matter was originally listed with the intention or understanding that it could be heard in the Koori Court. For the reasons I outlined the other day, because of the breach of the intervention order and because this offending gave rise to that breach, it was not a matter that could be heard within Koori Court.
7 Your counsel assured me that you wished to be dealt with in Koori Court so that you could confront your elders and show your remorse and that you are accepting responsibility for what you have done and your conduct. Accordingly, in those circumstances, the court sat as a mainstream County Court. None of the usual matters pertaining to Koori Court were in place. I did not acknowledge the elders, I did not talk about the room being smoked or any such matters. What I did do after discussion and with the expressed consent and encouragement of your counsel was to allow you to come from the dock, sit at the table and have a discussion with the elders who had been present in the light of it being understood to be a Koori Court. In that scenario it was made very clear to you that the elders were playing no part in the sentencing process other than to enable you to display your remorse, which I have no doubt you did, and to give me a better guide as to your prospects for rehabilitation. In that scenario which, as I have said, occurred in Mainstream, we had the situation where your own counsel was much better able to get your story out, leaving aside what the elders had to say and Ms Taylor for the Crown was in that situation able to eloquently put the position of your victim.
8 They are difficult matters to achieve in normal Mainstream. I indicated and I indicate now that for you in the trouble you are in with the sentence that you face, to put yourself in a situation where you could be attacked and criticised and confronted by all and sundry was an admirable thing to do. Whatever might be said about the nature and cowardice of the offending that you have committed over the years, yesterday showed me that you can, when sober and when not pilled, display courage and you did.
9 That process in itself does not affect the sentence but what it did do was hearing you speak, seeing you distressed and your understanding of the position of the victim and your position within the Koori community made me think that the prospects ultimately of your rehabilitation are better than I would have thought at the start. I suspect they improved yesterday. I can just simply say that the participation of all involved was of the highest order.
10 As I said, I made it very clear to you that the sentence that is to be imposed is not going to be imposed by the elders, it is going to be imposed by me. The circumstances of the offending are, as with your previous offending, dreadful. The situation was that you had been out of gaol for about seven and a half months. I understand that people who have been in custody for an extended period of time can quite often have difficulty readjusting. You were the subject of a full family violence intervention order in relation to your victim. I have not gone into or enquired what that was all about. I understand there are other matters yet to be resolved and that will be a matter for another judge on another occasion. Be that as it may, for whatever reason you and your victim, and I refer to in that sense so as to not actually name, there is no disrespect meant in that, had been socialising at Ryan's Hotel in Traralgon. An argument developed into the two of you. The end result of that was that your car was damaged by your ultimate victim. There was then a return to your house in Shakespeare Street in Traralgon, where police were eventually called. Your victim was taken to an address in Queens Parade in Traralgon to the house of an uncle. She rang you from that address and the argument continued. You went to that address and the uncle let you in.
11 In that scenario you approached her. She was sitting on the couch. She was your, on one view, partner. You assaulted her by continual blows to the face, head and body. You grabbed her by the throat. She was eventually forced to the floor. Her uncle rang the police. You went to the kitchen and removed some knives from the cutlery draw. I notice in the record of interview that you said you had done that because you wanted the police to shoot you. In any event, police and ambulance attended where they found her unconscious on the floor. She was conveyed by helicopter to the Royal Melbourne Hospital and placed in an induced coma. She was in that condition for five days. Her injuries included a fractured skull, bleeding to the brain, severe soft tissue facial injuries, a laceration on the forehead, general bruising of the limbs and a broken ankle. That can only be described as a sustained and vicious flogging.
12 The circumstances leading up to it were that you had been out of prison, as I have said, for a few months. You had found a job working as a labourer. You, instead of using, as had always been your habit when getting out of gaol, were getting up at 6 or 7 o'clock in the morning and working every day. You were living at your mother's. You were functioning. You were proud of yourself and your mother was proud of you. As part of your work you were able to get sufficient money together to buy yourself a car for about $1500. You explained in the course of our informal conversation yesterday that as far as you could remember it was the first thing you had ever owned in your life. The consequences of the damage being caused to it were that it was written off. In that scenario you became extremely upset. You still had not at that point assaulted her.
13 I accept, it is in your interview and it was explained again yesterday, that in that situation of upset you endeavouring to calm yourself down took a number of valium. You had apparently been taking valium and other substances in the days leading up to it because, unfortunately, you had been sacked. I accept that that had a dramatic effect upon you, bearing in mind the pride you take in what you have been able to do. In any event, you took those pills and you explained to the police that you were not drunk, you were pilled. That offers no excuse whatsoever. It simply just puts this into a context.
14 It was in that state that you went to the house and committed this offence with such extraordinary violence on an absolutely defenceless victim. I note also, and this was pointed out, that whilst this was taking place the Uncle, Jingles as I understand he is called, could do nothing to stop it. He apparently was in a serious car accident years ago and was a person who would be in no condition to stop you fired up at all. He had to watch this. Eventually, he was able to ring the police and, as I have indicated, they arrived.
15 This offending is very serious and you have done it before. It calls very much for the application of general and specific deterrence as well as denunciation and an appropriate punishment. A significant custodial sentence is inevitable. On your behalf was the informal discussion that took place between yourself and the elders in which, as I have indicated, you did yourself in my view great credit. I also have before me a report of Dr Cunningham, a forensic psychologist, and I also have the indent which was helpfully provided to me by the police.
16 Your history can be dealt with fairly shortly. You were raised in Traralgon and your mother is Aboriginal, as indeed obviously are you, and she is an alcoholic. Your father you described to Mr Cunningham as a shy person but would be violent towards you. There was a lack of emotional connection with your parents, you told Mr Cunningham. There was also apparently an uncle who also played a part in disciplining. At the age of 11 you located to Lakes Entrance to live with your elder brother and an Aunty and Uncle. When you were 14 you went back to the family home. By that stage you were getting in trouble with the police around Lakes Entrance. At the age of 16 you went to live with cousins in Traralgon. At the age of 17 you moved to live with a girlfriend. You remained together with her for a couple of years and had a son who is aged 14. You also, as indicated during the course of the conversation, have a young daughter.
17 You have from time to time been able to return and live with your mother. Your parents divorced when you were 21. You are currently in incarceration with your younger brother. I do not know what that is about yet but undoubtedly over the next couple of weeks I will. You had behavioural problems through primary school. You had behavioural problems at secondary college. You had some employment as a concreter and you indeed were doing that in that relatively short period of time that you were free from late 2010 to mid 2011.
18 You began using cannabis at the age of 10. You began using alcohol at the age 10. At 16 you began to use morphine and benzodiazepines. You began using amphetamines at the age of 17 and heroin at the age of 20. You are still on a methadone program, despite the length of time that you have been in gaol.
19 You have been poly-substance dependent and damaged since you were 10. It is mentioned in your medical history that you have had a number of psychiatric admissions whilst intoxicated with alcohol. There is nothing in this matter to suggest the principles denunciated in Verdins have any application. It became clear in my view on the basis of your counsel's submissions and during the conversation that you had with the elders that you have, at least when drinking, an extreme anger problem. As Aunty Di said, there is a demon in you. You should not drink at all, that is clear. Whether that can be sustained is anybody's guess. You have done an anger management course in prison, which is to your credit. When you were asked yesterday by the elders about the effect of that you seemed hesitant. It is clear to them, as it was clear to me and clear to I think all in the room, that you need one on one counselling for a long period of time to deal with this inner anger. Even if you have sufficient understanding to know not to drink, something has to got to be done. It is no exaggeration to say that you almost killed the girl and, as the prosecutor pointed out very strongly too and I think you took it on board, you are lucky you are sitting here and not in the Supreme Court. The reproduction of this sort of offending could easily have you spending the rest of your life in gaol.
20 Having said that, you are still only 31 and the prospects of you being rehabilitated cannot be said to be eliminated. On the psychologist's assessment you come in as a high risk of offending and I think objectively that has got to be right. The risk of you re-offending is totally dependent upon your learning to deal with anger and your learning to deal with substance abuse and not falling back to it in times of stress and disorganisation. It is again to your credit that for at least the first few months of you being released after such a long sentence you were able to function as a working member of the community. Ultimately, there is no reason why you should not be able to do that again.
21 In this particular situation I have to be very cognisant of the principles relating to totality and must not impose a crushing sentence, despite the seriousness. The Crown range that was put was one of seven to eight years as a maximum penalty or sentence that should be administered. That range of course was put prior to us finding out, fortuitously, that in fact you had been undergoing parole for something approaching a year and had another 15 months of parole to go before my sentence even started. That range also did not take into account, because nobody knew, that you were in protection. I have no idea whether the last sentence was completely served in protection, I assume it was. Whether the sentencing judge knew that, I do not know. But those two matters are of real significance in your particular circumstance.
22 If that sentence were to be imposed, and as I indicated yesterday I think that, absent this other material, is a proper range, you would be in gaol for over a decade. I do not think that is necessary but in any event the sentence I impose is going to have you in gaol or have been in gaol for a long period of time other than for that six months.
23 Questions of totality in situations such as parole breaches always concern me. One can end up with a sentence which, on the face of it, appears inadequate for what took place. With the sentence that I impose, any person looking at it bearing in mind the parole aspects and the protection aspects of it can simply add two or three years onto it as to what it would have been without those matters. But it is in nobody's interest to have you continually locked up. It is in nobody's interest to have any chance of you being rehabilitated crushed and somehow I have got to balance that against the dreadful thing that you did.
24 In any event, taking all those matters into account as best I can in a very, very difficult situation, on the charge of intentionally causing serious injury you are sentenced to be imprisoned for a period of four years and six months.
25 On the charge of breach of an intervention order, three months to be served concurrently with the four and a half years.
26 I direct that you serve a minimum term of three years before becoming eligible for parole and I make that direction, fully cognisant of the fact that that three years will not start until the middle of next year. That gives you an idea of the sort of minimum term that is involved.
27 But for your plea of guilty and even allowing for the fact that you are undergoing such an extended period of parole in such difficult circumstances, I would have sentenced you to be imprisoned for a period of seven years with a minimum term of five. I direct that 10 days be reckoned as having been served under this sentence.
28 Are there any other orders I have to make?
29 COUNSEL: No, Your Honour.
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