Director of Public Prosecutions v Hoye, Michael James

[2013] VCC 355

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

AT LA TROBE VALLEY

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL JAMES HOYE

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	La Trobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2013
CASE MAY BE CITED AS:	DPP v Hoye, Michael James
MEDIUM NEUTRAL CITATION:	[2013] VCC 355

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Lynch	Office of Public Prosecutions
For the Accused	Ms M. Mahady

HIS HONOUR:

1       Michael James Hoye, you have pleaded guilty to two counts or charges of common assault.  The two matters happened in very close proximity to each other and accordingly concurrency between them is appropriate.  Common assault carries a maximum penalty of five years imprisonment.  You pleaded guilty and have indicated your preparedness to so plead for some time.  What has happened in the past is that in April of last year I sentenced you to be imprisoned for four and a half years with a minimum term of three years.  At that time, and I was aware of this, you had been breached on a parole from an earlier assault.  You owed one year 11 months and 20 days and were undergoing that parole.  On the provision of your indent, it is apparent that that parole will have been served approximately by the end of June this year.  Accordingly, by operation of the Sentencing Act, the four and a half years which I sentenced you to and therefore the minimum term, will not even commence until June.

2       I simply annex my earlier sentencing remarks to these sentencing remarks which will outline your history.  You are a Koori man and you have had a number of terms of imprisonment and have spent a lot of time in gaol.  On any basis, you will be in gaol for at least another three and a half years before you are paroled, if indeed you ever are.  If you are paroled then, you would have spent something like nine, in my calculations, out of the last 10 years in gaol.  You are still only 32. 

3       My earlier sentencing remarks indicate the nature of your background, the alcohol abuse, poly substance abuse and the violence.  When I dealt with you last, the matter could not be heard in Koori court, because there was a contravention of an order.  However, I do recall the matter very clearly.  It was clear to me then that you had the courage to face your elders and accept responsibility for some grievous offending.  Whether you have maintained your determination to turn your life around, I do not know and it is I suppose very much a matter for you. 

4       The circumstances of this offending were in the context of physical scuffling and a slap, in so far as your partner was concerned.  I must be very careful here to note that you were placed on trial for rape and other assaults.  You were acquitted after a commendably short trial.  I would not wish to traverse the jury's findings as to the credibility of the complainant and I am therefore sentencing you on the basis of the description that you gave in your record of interview and your subsequent pleas of guilty.

5       Accordingly I regard the plea as having been made at an early opportunity in all the circumstances.  You were successful on the trial, so I see no reason not to accept that there is an appropriate element of remorse, as I found last time that I sentenced you.  These matters, of course, predate the matter for which I gave you that large sentence.

6       Domestic violence of this nature is always serious in a sense.  This matter clearly is out of all proportion to what you subsequently did to her.  It does, however, call for the application of general deterrence.  In your particular situation, bearing in mind what has happened to you since, I do not think specific deterrence is going to make much difference, but it also, of course, calls for denunciation and an appropriate punishment.  Were you somebody with no prior convictions and no prior prison sentences, it is a matter which would have clearly been dealt with in the Magistrates' Court and I doubt it would have attracted a custodial sentence of any description.  But the fact of the matter is that that is not what we are dealing with and the practicalities as well as the culpability of these two matters in my view require a custodial sentence. 

7       I have indicated that I regard the appropriate sentence as being four months on each, to be served concurrently.  That gives an effective sentence today of four months.  I direct that two months of that four months be served concurrently with the four and a half years that I sentenced you to in April of last year.  In other words, there are two months to be cumulative.  I cannot set a minimum term on a four month sentence and by reason of the legislation I cannot and indeed would not give a new minimum term.  Accordingly, in some three and a half years time, you will be in the hands of the Parole Board, who will undoubtedly be in a far better position to determine whether you should be paroled and when you should be paroled than I am at this remote point of time.  

8       I am conscious that the imposition of some cumulation may result in the suspension of the parole breach and that you be ordered to serve two months and then return to the parole breach.  I think there are legal difficulties with that occurring, but make it clear that it is a situation where the seriousness of it and the circumstances of it in a domestic setting as such, that if that were to occur, whilst it is not what I desire, I would have no problem with it.

9       The prospects of your rehabilitation are entirely up to you.  You must always, or will be for a very long time, regarded as a serious risk of offending because of your substance abuse and your anger, but again, they are matters that only you can deal with and only time will tell how you are able to deal with them.  You are well aware that you are in your early 30s, if you, when ultimately released from gaol, continue to abuse your body in the way that you have, you will be in the same position as so many other black fellas that I deal with down here; you will be dead and you know that and we all know that, so it is a matter for you.

10      In any event, on Charges 5 and 6 of common assault, I sentence you to imprisonment for four months on each to be served concurrently with each other, an effective sentence of four months, two months of that to be served cumulatively upon the sentence which I imposed, which has not yet commenced, on 4  April last year.

11      Are there any other orders I need to make?

12      MR LYNCH:  No thank you, Your Honour.

13      MS MAHADY:  No, Your Honour. 

14      MR LYNCH:  Your Honour, 6AAA.

15      HIS HONOUR:  Six months. 

- - -