Director of Public Prosecutions v Hudgson

[2016] VCC 540

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

AT MELBOURNE
CRIMINAL JURISDICTION  CR-15-00021

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM HUDGSON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARINGS:	Trial: 24, 25, 29 February, 1 -4, 7 March 2016 Plea: 20 April 2016
DATE OF SENTENCE:	28 April 2016
CASE MAY BE CITED AS:	DPP v Hudgson
MEDIUM NEUTRAL CITATION:	[2016] VCC 540

REASONS FOR SENTENCE

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Subject: Criminal Law - sentence

Catchwords:    Prisoner found guilty by jury of one charge of intentionally causing serious injury in circumstances of gross violence – hammer used to attack victim resulting in fractured tibia – motive for attack said to be anger over failed attempted theft of goods by the victim at behest of prisoner – co-accused blamed – co-accused pleaded guilty as principal to same charge but was sentenced as aiding and abetting – whether mandatory minimum sentence applies – whether special reason exists –comprised of impaired mental functioning and substantial and compelling reasons – PTSD – deprived childhood – delay – parity –principles in Verdins- gravity of offence – guarded prospects for rehabilitation.

Legislation Cited: Sentencing Act 1991 s.10, s.44

Cases Cited:R v Verdins [2007] VSCA 102 Merrett, Piggot and Ferrari [2007] VSCA 1; Bugmy v R [2013] HCA; DPP v Timoteo [2014] VCC 37

Sentence: 23 months imprisonment and 2 year CCO         

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Bourke (trial and plea)	OPP
Ms I Barry (sentence)
For the Accused	Mr  J. Westmore	Michael Brugman

HER HONOUR:

1Graham Hudgson, you have been found guilty by a jury of one charge of intentionally causing serious injury in circumstances of gross violence.  It is of course, a serious charge, for which the maximum penalty is 20 years' imprisonment.  Unless there are special reasons not to do so, in sentencing you to a term of imprisonment, I must fix a non-parole period of not less than four years.

2Your counsel, Mr Westmore, submitted that special reasons apply, opening up an unfettered sentencing discretion, which would enable me to exercise appropriate leniency.  The prosecutor, Mr Bourke, submitted that special reasons do not apply.  I shall return to that matter later in these remarks.

THE OFFENDING

3The house in Wendouree in which you were living at the relevant time backed onto a house in which the victim, Marc Osborne, was living.  You would see Mr Osborne every couple of days, and you introduced him to an acquaintance of yours, Sean Kennedy, who was living in your house.  You told Osborne that you wanted him to steal a security camera system for you, and Osborne agreed to, but procrastinated.

4Over the next two months, you repeated this demand each time you saw Osborne, and eventually you told him that if he did not comply, you would have his girlfriend, Kerry-Ann Walker, bashed and raped.  Mr Osborne had made two attempts to steal security cameras from the Dick Smith shop in Ballarat on the 23rd and 25 June.  Each time, he was accompanied by Richard Webster, Kane Fisher, and Sean Kennedy.  Kennedy was located in the nearby car park, watching to see if the attempt was successful.

5On 25 June, after the second failed attempt, Osborne was walking along Primrose Street in Wendouree with Ms Walker, and either Webster or Fisher.  You pulled up in a car driven by your partner and threatened Ms Walker.  Osborne told Ms Walker to leave, whereupon you pushed him in the chest several times, throwing punches and kicking him, and continuing to make threats, because Osborne had not procured the cameras.

6Ms Walker was driven away by two Department of Human Services workers who happened to be passing, and who called the police.  You told Osborne to "go and find her and tell her to keep her mouth shut".  Later that day at about 5 pm, Osborne was at his home with Richard Webster, Kane Fisher, and two young women.  Sean Kennedy came to Osborne's house and told the five of them to keep their mouths shut about what had happened earlier.  Osborne told Kennedy to go, and Kennedy left, only to return five minutes later, telling him to go to your place, to talk about not getting the cameras.

7Osborne went over the back fence into your backyard, where he saw you standing near your shed.  Kennedy jumped into your backyard and Osborne asked you to put your dogs away, referring to two German shepherds.  You told Kennedy to do that, and he did.  You then approached Osborne, yelling loudly and angrily, carrying a hammer, which you then used to hit him on the arm.  You told Kennedy to grab Osborne and hold him so you could hit him in the back.

8According to what Osborne told the jury, Kennedy was just standing there, and he then grabbed Osborne and held him down while you hit him again with the hammer on the left leg.  After a further struggle, you got on top of him, put your arm over his throat, and spat at him, then as he got up, you hit his right leg with the hammer, which was when his leg was broken.  You demanded he give you money and drugs, and you then threw the hammer away.

THE AFTERMATH

9You told Osborne to go, and he hobbled to the fence and got over it with Kennedy's help.  You also told Kennedy to go with Osborne to make sure he did not tell the police.  Kennedy followed Osborne into his house, from where the ambulance was called, and Kennedy went, uninvited, with Osborne to hospital.  He remained with Osborne until the evening, when visitors had to leave the hospital.

10Earlier, when police and ambulance had come to Osborne's house, he told them, in Kennedy's presence, that he had been attacked at the front of his house by some unknown men.  He gave the same false version when police attended the hospital, again in Kennedy's presence.  Osborne said in evidence that "he was still frightened about the threats you made towards his girlfriend". 

11The next morning the police came again to the hospital, in the absence of Kennedy, and this time Osborne told the true version of events, that you had attacked him.  Kennedy was charged with recklessly causing serious injury, and pleaded guilty before His Honour Judge Allen of this court, on the basis that he, Kennedy, disagreed with the prosecution summary, in which you were described as the attacker, the perpetrator of the physical violence.  Kennedy said he had been the attacker, and had dealt the blows upon Osborne himself, denying that you were there at all.  On the plea, the prosecution put the same facts as were put at the opening of your trial, which were largely consistent with the evidence given by Osborne, and which the jury must have accepted.

12Judge Allen sentenced Kennedy, not as the principal offender, but as having performed the lessor role, which Osborne described.  His plea was to the charge of recklessly causing serious injury, but without the circumstances of gross violence.

PERSONAL CIRCUMSTANCES

13Your background is set out by Dr Aaron Cunningham in a recent report.  You are aged 36, and you were raised by your mother, who was a sole parent, and who suffered from bipolar disorder.  Your father was largely absent from your life, and there was no structure or support at home.  Your mother gambled when manic, and the family struggled financially, moving home many times.  As a child, you were subjected to physical abuse and fear by an uncle, in two incidents you described to
Dr Cunningham as perhaps forming the basis for the post-traumatic stress disorder with which you have since been diagnosed. 

14As a teenager, you lived with this uncle who beat you sometimes, and you left there aged 18 to live in Queensland.  There, you had a two-year relationship which produced a daughter, now age 17, with whom you are in regular contact. 

15You returned to Victoria and commenced a relationship with your current partner, Jacqueline Maclean, with whom you have three children, aged 11, ten, and ten months.  That relationship is ongoing and supportive, but Ms Maclean is struggling in your absence since your incarceration at the end of the trial.

16You had limited schooling, and have worked in various jobs.  You have been a regular cannabis smoker since the age of 16, and have abused various illicit drugs over the years, including in the context of being a member of a motorcycle club.  You acknowledge having been heavily involved in the mentality of the club, and you were drinking alcohol heavily, and using cocaine and steroids at the time of the offending.  You have distanced yourself from the club since the offending, and you now regret having encouraged your young son, as you put it, in "the mindset of the club". 

17You gave Dr Cunningham a history and prior diagnosis of post-traumatic stress disorder with ongoing symptoms.  His opinion was that your mental state is consistent with that condition, with a predisposition to its development from the emotional disconnection in your childhood, and precipitated by experiencing violence as a child.  Later, this was perpetuated, and aggravated, by your experience of violence in prison, and in the antisocial circles in which you mixed from an early age.  An example of that early exposure is that when you were 13, your sister was going out with a member of the Bandidos motorcycle club, and the man was murdered.

18Dr Cunningham spoke with Ms Maclean, whose information confirmed your present state of mind in custody as being paranoid and anxious, and that since leaving the motorcycle club, and being separated from your family in prison, you have reordered your priorities, placing your family first. 

19Ms Maclean, who works as a disability support worker, has provided a reference, in which she relates with care and detail some of your history, and the regret you feel in having subjected your family to suffering because of your poor choices of association in the past, leading to the charge, the trial, and your imprisonment. 

20Dr Cunningham included this regret as being one of the protective factors which might reduce your risk of reoffending when released from prison.  He also considers that you need treatment for post-traumatic stress disorder, and without it, any term of imprisonment will weigh more heavily upon you than for others.  He considers that because of your past associations, you will be more vulnerable in prison than others, being subject to further trauma with the ongoing perception by you, of the threat of violence.

21Finally, Dr Cunningham said that you would benefit from ongoing psychological assistance whilst in the community, working and supporting your family, leading a stable life.  Those factors would make your rehabilitation more likely.  The logic in that reasoning is clear, and no doubt, that is a desirable course for the benefit of a person in your situation, not only personally, but also for the long-term benefit of the community.  At the same time, a realistic assessment of your prospects for rehabilitation can only be a guarded one. 

S.10 PROVISIONS

22Because you have been found guilty of intentionally causing serious injury in circumstances of gross violence, the requirements of s.10 of the Sentencing Act 1991 apply, and so sentencing in this case is not straightforward. The legislation requires that you be sentenced to prison with a non-parole period of not less than four years unless a special reason exists. As I said earlier, Mr Westmore has submitted that a special reason exists, and a contrary submission was put by Mr Bourke.

23Section 10 provides that "a court may make a finding that a special reason exists in certain circumstances". Relevant to this case, a special reason would exist if the offender can prove that his impaired mental functioning would result in him being subject to significantly more than the ordinary burden or risks of imprisonment[1].  Alternatively, there may be substantial and compelling circumstances that justify doing so[2]. 

[1] S.10A(2)(c)(ii)

[2] S.10A(2)(e)

24Some of your symptoms of PTSD are those which now contribute towards difficulties for you in prison.  Amongst other symptoms, you experience distressing recollections of previous trauma, depression, and marked arousal in the form of hyper-vigilance and sleep disturbance.  These symptoms impose an extra burden upon you, with the added risk of exposure to further trauma in prison because of your background and associations.  Of course, prison is burdensome for all prisoners, but it is accepted that when it is more burdensome by reason of a mental health condition, for example, that can be taken into account as mitigation. 

25I am satisfied to the requisite standard, the balance of probabilities, that a special reason exists under s.10A(1)(a). If I were not satisfied, I would conclude that there are, in any event, substantial and compelling reasons, as required by sub-paragraph (e) of s.10A(2). They would be comprised of a combination of circumstances. One of these is parity.

26Mr Bourke submitted that parity should not be a factor to be considered, because parliament, in enacting s.10, had not allowed for it. But given that it is a fundamental sentencing principle, I shall proceed on the basis that it is understood to be a possible factor. There is no authority on the point, and in the only relevant decision of this court which has been traced, the point which was included by Her Honour Judge Pullen is part of the circumstances under sub-paragraph (e) of s.10A(2) appears not to have been the subject of any argument[3] in that case. 

[3]DPP v Timotoe [2014] VCC

27As to parity in this case, Kennedy was sentenced to a four-year community correction order.  He is a younger man, aged 27 at the time of the sentence last year, who had no previous convictions for violence and who pleaded guilty.  He had previously been diagnosed with post-traumatic stress disorder, and had had a dysfunctional childhood, during which he had been the victim of sexual abuse. 

28The fifth limb in the decision in the case of Verdins had come into play in the sentencing process.  There are some similarities as between you, such as the dysfunction in your lives, and the post-traumatic stress disorder suffered by each of you, but otherwise there are considerable differences in your personal circumstances, and indeed in the roles you played in the offending.

29But taking into account the differences and similarities, I must exercise caution before imposing a sentence upon you that is greatly different from that of Kennedy, to avoid a justifiable sense of grievance arising.  Clearly the different roles justify different sentences.

30Mr Westmore submitted that delay is also a factor to be taken into account as part of the substantial and compelling circumstances, given that the delay between being charged and the plea hearing is almost two years in the context of knowing that a very long sentence was potentially applicable.

31I note that you have been subject to strict bail conditions with which you have complied, and you have not reoffended.  Of itself, the delay is not an inordinate one, and it is not the type of delay that is considered by the authorities as a significant sentencing factor[4].  What is perhaps unusual is the existence of a mandatory minimum sentence in such a case as this.  The effect of a two-year wait, knowing the possibility of a very long minimum sentence which could apply, takes the factor out of the category of mere delay, and it should be taken into account. 

[4] R v Merret, Piggot and Ferrari [2007] VSCA1 at paras 35 - 36

32The likelihood that imprisonment will affect you in a more onerous way by virtue of your condition of post-traumatic stress disorder, thereby enlivening the fifth limb of the decision in Verdins is a further matter which contributes to the existence of substantial and compelling reasons.  It is also appropriate to take into account in this regard your difficulty in knowing that your partner and children are struggling in your absence, and that through your incarceration by your own doing, you are unable to support them.  That anguish on the part of a prisoner is recognised as something validly to be taken into account as a mitigating factor to some degree.

33I now turn to the issue of deprivation in childhood, which Mr Westmore submitted is a component of substantial and compelling circumstances.  In 2013 the High Court in Bugmy v The Queen held that the effects of profound childhood deprivation do not diminish over time and are to be given full weight for whatever purpose they are drawn upon, whether to reduce moral culpability of the offender, or to point to the importance of protecting the community.  In that case, the offender's childhood background was indeed extremely deprived.  This appeal point rose in the context of the sentencing of Aboriginal offenders and their over-representation in juvenile detention centres and gaols, but was held to have general application. 

34At paragraph 40, it was expressed in the following way. 

"The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way"[5]. 

[5] Bugmy v R [2013] ITCA para 40

35Mr Bourke submitted that the deprivation in your case was not profound, but it would seem that the test is something less than profound, and might depend on the particular circumstances as long as there is material to establish that background.  At paragraph 43 the court said it accepted the submissions that

"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending"

36I am satisfied that your background meets this test, with an absent father, and a mother suffering a mental illness which meant she struggled to care for you adequately, providing you with no structure, stability or limits.  You were physically abused when in your uncle's care, and this background predisposed you for the connection and identity gained from belonging to a motorcycle club, thereby exposing you to more violence, and again during the imprisonment which followed.

37I now turn to your prospects for rehabilitation.  As for violent offending, your history is limited, and there is a subsequent conviction for affray, which of course is relevant in regard to this aspect of sentencing, particularly given that it occurred shortly before this offence.  There are no pending matters, and you have already taken steps to distance yourself from the motorcycle club.  You have thereby demonstrated your intentions and motivation to change.  Accordingly, I conclude that those prospects, while guarded as I said before, will likely be enhanced by treatment and establishment of a stable lifestyle as long as you have put in place meaningful changes. 

38As to the gravity of the offence, it is to be assessed according to the nature of the injury and the planning involved.  Fortunately, after what was a particularly violent attack, Mr Osborne was expected to make a full recovery from the undisplaced fracture within a few months, and there was nothing to indicate otherwise.  Mr Osborne provided a victim impact statement in which he wrote of pain, lack of sleep, and the fear he had felt following the attack, which, combined with the injury, prevented him from working. 

39The only evidence of planning was your drafting of Kennedy to assist you, and obtaining the hammer.  Of course, the context was your demanding and threatening behaviour towards the victim leading up to the attack, which can only be described as the use of standover tactics.  This would place the offending at the lower end of the range of seriousness for this crime, only when compared with other types of serious injury, and with no other consideration.  It certainly is not at the highest end, and the prosecution concedes that, but it is more accurately placed at just below the middle of the range.

40The need for general deterrence remains high, to be slightly moderated by your condition of PTSD.  The need for specific deterrence is similarly moderated, but your resort to callous violence in the circumstances of this case require you to be deterred and to be justly punished.

41Your denial of the crime means there is no explanation for your state of mind at the time, but the objective evidence suggests unbridled anger, a failure of restraint, and a lack of a sense of morality, with violence used as a remedy for perceived failure by others to respond to your demands.  Your punishment should take the form of a combination of prison and a community order.  You have already spent 150 days in custody, and I will be imposing a term of imprisonment in addition. 

42Section 44 of the Sentencing Act provides for this combination without the need to take into account time already spent in custody.  A community correction order to commence after your release from prison will enable you to return to work, and to engage in counselling and other programs.  Would you stand now please, Mr Hudgson?

SENTENCE

43I sentence you to 23 months' imprisonment, to be followed by a community corrections order, which will begin on the day of your release, and last for two years.  You will be under supervision, and must perform 150 hours of unpaid community work over 12 months.  You must have assessment and treatment in relation to your mental health, and in relation to drug and alcohol abuse, and you must take part in any other program to address the risk of reoffending, including an anger management program.

44You must attend the Corrections office at 206-208 Mair Street, Ballarat within two working days of your release. 

45The prosecution seeks an order for the disposal of the hammer, and I make that order, to which you have consented through your counsel. 

46Are there any other matters that I have omitted?

47MR WESTMORE:  I take it from Your Honour's comments that no presentence detention taken into account?

48HER HONOUR:  That is right.  The CCO is ready for signature now, would you like to have a look at it first, Mr Westmore?

49MR WESTMORE:  Yes, Your Honour.  Your Honour just in relation to the sentence, as I understand Your Honour will have to make an order that there will be no non-parole period in relation to the ‑ ‑ ‑

50HER HONOUR:  Do I have to make that order?

51MR WESTMORE:  Maybe not, because it is less than two years.

52HER HONOUR:  No, s.11 says that if it is under two years, there is no need for that to be done.

53MR WESTMORE:  Yes, I think that is correct.  Yes, Your Honour.

54MS BARRY:  I agree with that, Your Honour.

55HER HONOUR:  Thank you.  Mr Westmore, I am not sure if I extended my thanks to you and Mr Bourke at the end of the trial, I may not have, but now is the time to do that as everything is completed.  Thank you very much, would you please pass those thanks also onto Mr Bourke.

56MS BARRY:  Of course, Your Honour.

57MR WESTMORE:  If Your Honour pleases.

58HER HONOUR:  Thank you.

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