Director of Public Prosecutions v Hughes

[2024] VCC 888

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 23-02031

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HUGHES

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Wangaratta & Melbourne
DATE OF HEARING:	23 April 2024 & 11 June 2024
DATE OF SENTENCE:	14 June 2024
CASE MAY BE CITED AS:	DPP v Hughes
MEDIUM NEUTRAL CITATION:	[2024] VCC 888

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Serious family violence offending, largely occurring whilst subject to a family violence intervention order – relevant criminal history – moderate early plea of guilty – Bugmy.

Legislation Cited:     Sentencing Act 1991 (Vic) s 5(1).

Cases Cited:Pasinis v The Queen [2014] VSCA 97; Skeates v The Queen [2023] VSCA 226; R v Cotham [1998] VSCA 111; Bugmy v R (2013) 249 CLR 571.

Sentence:Total effective sentence of 42 months’ imprisonment. Non parole period of 26 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Ollquist	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	Clancy Solicitors

HIS HONOUR: 

Introduction

1Andrew Hughes, I will sentence you to a total sentence of 42 months' imprisonment. I will set a non-parole period of 26 months' imprisonment. I will declare your 345 days of pre-sentence detention (excluding today) as time served under my sentences.

2You pleaded guilty to 15 charges on an indictment and three related summary charges. The circumstances of these charges are set out in the document entitled 'Summary of prosecution opening for plea', which is Exhibit A.

Circumstances 

3Since February 2023, you were in an intimate relationship with Ariane O'Hare. In April or May 2023, Ms O'Hare came to live with you at your mother's home in Euroa.

4On 12 May 2023, there was an incident between you and Ms O'Hare, resulting in the issue of a family violence safety notice.

5On 19 May 2023, an interim family violence intervention order was made. The conditions of the order were limited to prohibiting you from committing family violence and threatening to or intentionally damaging property of Ms O'Hare. This order was served on you on 21 May 2023 and its contents explained.

Charge 1

6On 6 April 2023, Ms O'Hare was living with a female friend when a male visited. You became jealous. After Ms O'Hare followed you into a bedroom in an unsuccessful attempt to placate you, you punched her in the left eye, causing a black eye. This constitutes Charge 1.

Charge 2  

7A few weeks later, Ms O'Hare was still living with her female friend. Her brother visited. Previously, he had dated Ms O'Hare. You became angry. Ms O'Hare followed you into the bedroom and you started strangling her. It caused her pain and fear. This constitutes the charge of reckless conduct endangering life.

Summary Charge 22

8On 4 July 2023, Ms O'Hare drove your motor vehicle. The number plates did not belong to the vehicle. This constitutes the summary charge of using false registration plates.

Charge 3 and summary Charge 26

9On 4 July 2023, at your request, Ms O'Hare drove your vehicle to your home. You were angry when she arrived. You pulled Ms O'Hare out of the vehicle by her hair. This constitutes Charge 3, a charge of common law assault. You then drove the vehicle away. You were unlicensed. This constitutes summary
Charge 26, unlicensed driving.  

Charge 4

10As a continuation of the above events, you rang Ms O'Hare as she and her friend walked home. You threatened to kill her pets by snapping the necks of her chickens, cat and dog. Fearing you would do what you threatened, the women went to your home and let the dog escape. This constitutes Charge 4, threatening to destroy property.

Charge 5

11As Ms O'Hare and her friend walked away from your home, you drove towards them at a rapid pace. They hid in the bushes. This constitutes part of Charge 5, the charge of stalking.

Charge 6

12Ms O'Hare and her friend resumed running along the road. You chased them while they hid in the yards of properties. You threw cans of alcohol at Ms O'Hare, striking her on the back of her head. This constitutes Charge 6, common law assault.

Charge 7

13Ms O'Hare knocked on the front door of a property seeking refuge. Her knock went unanswered. She called Triple 0. Before completing the call, you found her and dragged her by the hair through the garden towards the vehicle, during which she injured the big toe of her left foot by grazing it on a rock. This constitutes Charge 7, common law assault.

Charge 8

14While you dragged her, she slipped and almost fell to the ground. With a closed fist you punched her to the left side of her face. This cut the inside of her mouth at the top and bottom lips. This constitutes Charge 8, causing injury recklessly.

Charge 9

15You picked her up and threw her into the passenger side of the vehicle and this constitutes part of Charge 9, false imprisonment.   

Charge 10

16As you drove away, you were screaming at Ms O'Hare. You drove at excessive speeds along wet and slippery roads. The vehicle lost traction at the rear and you nearly lost control. This constitutes Charge 10, reckless conduct endangering life.

Summary Charges 26 and 30.

17You were unlicensed, which constitutes the summary Charge 26, unlicensed driving. You were drunk and Ms O'Hare was fearful. This constitutes the summary Charge 30, driving while under the influence of alcohol.

Charge 11

18While driving erratically, you called her fat, a slut and ugly. She was both upset and fearful. While driving you punched her several times to the head. This constitutes Charge 11, common law assault. Your attention was drawn to her mobile phone and you were given it on your demand. You threw it out of the window.

Charge 12 and part of Charge 9

19You stopped the vehicle to urinate. Ms O’Hare escaped but stumbled. You caught up to her, grabbed her by the throat with your hands. This constitutes Charge 12, common law assault. You dragged her back to the vehicle, which is part of Charge 9, false imprisonment.

Charge 13

20You then said if she did anything stupid you would kill her. This constitutes Charge 13, a charge of making a threat to kill. She was petrified, believing you would carry out the threat.

Charge 14

21You then told her you would smash one of the beer bottles in the vehicle and stab her in the neck with it. This constitutes Charge 14, making a threat to inflict serious injury. Thereafter, you continued saying you would kill her, her family and everybody she loves.       

22After a while you asked Ms O'Hare to drive after realising you could not.
Ms O'Hare took over the driving but stopped several times attempting to find her phone.  With your help, she found it by the side of the road. As the vehicle was driven towards Euroa, you told her of your love and not wanting to lose her.

Part of charge 5

23You returned to your mother's home and you went to bed together. After refusing to have sex with you, Ms O'Hare lay in the bed sobbing. You started calling her names and accusing her of cheating on you. Ultimately, she left the bed and the house, saying 'I can’t do this anymore'. You followed, screaming at her. She tried to hide. When she saw you head back to your home she went to her friend's home. This and the following constitutes part of Charge 5, stalking. You drove around Euroa looking for her. She avoided detection by hiding in bushes, lying on a park bench and entering the yards of properties. Ms O'Hare eventually reached her friend's home. She was let in and her friend called Triple 0.     

Charge 15

24Over several hours, you persistently contravened the conditions of the family violence intervention order through your verbal and physical acts, intending to cause her mental and physical harm and fear for her safety. This constitutes Charge 15, persistent contravention of a family violence intervention order.

25At about 3.45 am you were arrested. Largely, you gave 'no comment' answers to questions. You have remained in custody since your arrest.

Criminal history   

26Between 29 September 2009 and 1 October 2019, you have attended a criminal court on eight occasions and have been found guilty or convicted of 25 charges. You have been sentenced to actual imprisonment once, when you were sentenced to 35 days' imprisonment for charges of criminal damage, contravening an intervention order and assault. You have twice been sentenced to alternatives to actual imprisonment.

27On 19 September 2009, you were sentenced to 4 months' imprisonment to be served by way of an intensive correction order. The charges included recklessly causing injury and unlawful assault.

28While on 20 April 2010, you were sentenced to 30 days' imprisonment for two charges of contravening an intervention order.  This sentence was suspended.

29Judging by this history, you are a violent person. You also disobey the conditions of intervention orders. This means I must have careful regard to the sentencing purpose of specific deterrence, that is, deterring you from behaving like this in the future.    

Victim impact statement

30There is no victim impact statement.

Personal

31You are now 38. You have an older brother who lives in Benalla. For many years, you have had no contact with him. Your parents separated when you were three. You lived with your mother although you lived with your father while a teenager. You have had no contact with your father for many years.

32You left secondary school during Year 11. You have enjoyed almost continuous employment in various unskilled, semi-skilled and skilled occupations.

33You started using cannabis daily from about 17. You stopped after forming your relationship with Ms O'Hare in 2022. The relationship saw you cease using cannabis and other substances. Since Ms O'Hare drank alcohol excessively, you did the same.

34Between the ages of 19 and 34, you were in a relationship with the mother of your two daughters, now aged 15 and 16. The relationship ended due to a 'falling out of love', as the psychologist, Mr Cummins, puts it. You have not seen your daughters since 2019 due to the conditions of a family violence intervention order. Your reaction to this – that is not seeing your daughters - has reached the level of a disorder, described by Mr Cummins as a persistent complex adjustment disorder.

35In December 2010, you fractured your right leg in a motor vehicle accident. On cold days, the leg aches. You blame your dependence on marijuana through its use to relieve pain. In custody, you are given Panadol for pain relief, but it is largely ineffectual.

36In custody, you work in the kitchen six days a week. You are a valued worker, being designated an essential working prisoner. You have undertaken courses and programmes, completing a Certificate II in commercial cookery, a barista course and a respectful relationship course.

37Your mother lives in Euroa and works as a bus driver. You are concerned she suffers from cancer but whether she does, has not been confirmed by her. You would return to live with her once released from custody.    

Psychologist   

38Jeffrey Cummins is a highly qualified clinical and forensic psychologist. At the request of your solicitors, he interviewed you on 17 May 2024[1]. Much of the details of your personal life is taken from his report.

[1] Report dated 27 May 2024.

39As I said earlier, he diagnosed you as suffering from a type of adjustment disorder, being a persistent complex bereavement disorder. He also diagnosed you as suffering from an alcohol use disorder of at least moderate severity at the time of your offending. He excluded other disorders including various forms of a personality disorder. 

40Using a standard psychological test, HCR-20, he assessed your risk of future offences of violence as 'low-moderate' where there are five categories: low, low-moderate, moderate, moderate-high and high.

41As to the future, Mr Cummins saw it as imperative you undertake a men's behaviour change programme or an anger management programme. He noted you saw the link between alcohol and your violence towards Ms O'Hare, adding[2]:

“He was of the opinion it was alcohol which prompted him to feel paranoid in relation to Ms O'Hare's interactions with other people.”

[2] At [30].

Discussion

42The purposes of sentencing are set out in s5(1) of the Sentencing Act 1991. They involve the purposes of just punishment, general deterrence, specific deterrence, denunciation and protecting the community from you. Each purpose is relevant in sentencing you.

Maximum penalties

43The maximum penalties for the offences are:

(a)   causing injury recklessly – 10 years' imprisonment;

(b)   reckless conduct endangering life – 10 years' imprisonment;

(c)   common law assault – 5 years' imprisonment;

(d)   threatening to destroy or damage property – 5 years' imprisonment;

(e)   stalking – 10 years' imprisonment;

(f)    false imprisonment – 10 years' imprisonment;

(g)   making a threat to kill – 10 years' imprisonment;

(h)   making a threat to inflict serious injury – 5 years' imprisonment;

(i)    persistent contravention of a family violence intervention order – 5 years' imprisonment;  

(j)    fraudulent use of a registration plate – 10 penalty units or 2 months' imprisonment;

(k)   unlicenced driving – 60 penalty units or 6 months' imprisonment or both;

(l)    driving under the influence – 25 penalty units or 3 months' imprisonment or both where it is a first offence, which is the case with you.   

44Your offending against Ms O'Hare arises out of your intimate relationship with her. When sentencing for domestic violence offending, the Court in Pasinis v The Queen said[3]:

General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection 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.

[3] [2014] VSCA 97 at [57].

45The reference to escaping or reporting emerged from the facts of that case. But the importance of general deterrence remains where physical violence is involved.

46Over the years, the Court of Appeal has repeated the purposes of sentencing in family violence matters. More recently, the Court said, in the case of Skeates v The Queen, after quoting from Pasinis' case[4]:

Since then this Court has made repeated statements that sentences imposed for family violence should be 'set at a level which will send a message to those – predominantly men – who might offend violently against domestic partners or former partners or family members' and reaffirmed that the 'fundamental importance' of the need for condign punishment to denounce and deter family violence is because of its prevalence and the seriousness of its consequences.  

And again[5]:

…the fundamental importance of general deterrence in arriving at the appropriate punishment does not diminish the value of specific deterrence and protection of the community as sentencing considerations. And, the gravity of family violence offending will be aggravated if it breaches an extant family violence intervention order.

[4] Skeates v R [2023] VSCA 226 at 56].

[5] At [60].

47Apart from the Court of Appeal's emphasis on general deterrence, it is clear the community is deeply concerned about family violence. There has been a Royal Commission, which reported in 2016. This State has spent an enormous amount of money seeking to implement the Commission's recommendations.

48Most of your offending against Ms O'Hare occurred while you were the subject of a family violence intervention order. Your contraventions of the conditions of that order are captured in the charge of persistent contravention.

49The importance of obeying the conditions of family violence intervention orders was stressed by the Court of Appeal as long ago as 1998[6]:

Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. 

[6] R v Cotham [1998] VSCA 111 at [14].

50To give effect to the need to ensure obedience to intervention orders and the fact your offending largely occurred while you were the subject of an order, some emphasis must fall on the charge of persistent contravention to give effect to those statements of principle.   

Guilty pleas

51You were charged on 5 July 2023. There was a committal hearing where
Ms O'Hare gave evidence. On the second day of that hearing, you pleaded guilty to various charges after she had finished her evidence. Those pleas come moderately early in the process starting with the laying of charges and ending in a jury trial. The pleas themselves are evidence of your remorse.

Bugmy

52Although you do not rely upon the principles stated in the case of R v Verdins[7], you do rely upon the statement of principle in Bugmy v R[8] of giving full weight to your deprived background in sentencing[9].

[7] [2007] VSCA 102.

[8] (2013) 249 CLR 571.

[9] Ibid at [44].

53The psychological effects of your deprived background are revealed in the report of Mr Cummins. It has not given rise to any form of personality disorder, but it left you with an addiction to substances. At the time of your offending, this was at the level of a recognised psychological disorder.

Prospects of rehabilitation  

54Upon release from custody, you intend to live with your mother. She remains a strong source of support. You would return to employment. You have a long history of employment and have continued to be fully employed while in custody. You have undertaken courses in custody and will do so following your sentencing. Mr Cummins assesses you as a low-medium risk of re‑offending. Coming from an experienced practitioner, I accept that assessment. He recommends anger management or men's behaviour change programmes.

55As Mr Cummins observed, you demonstrated significant insight into your offending against Ms O'Hara and genuine remorse over your actions.

56I will impose a sentence of imprisonment far in excess of your previous sentence of actual imprisonment. It should act as a very strong deterrent to you behaving in a similar manner.

57I consider your prospects of rehabilitation are good.    

Non-parole period

58Your counsel submitted I should fix a non-parole period which is shorter than normally done so you can have a longer period of supervision upon your release from custody. Given the importance of the sentencing purpose of general deterrence, I consider acceding to that submission would tend to undermine the purpose of general deterrence.

Sentence

59Charge 1, a charge of recklessly causing injury, I sentence you to 6 months' imprisonment.

60Charge 2, a charge of reckless conduct endanger life, I sentence you to 18 months' imprisonment.

61Charge 3, a charge of common law assault, I sentence you to 3 months' imprisonment.  

62Charge 4, a charge of threat to destroy property, I sentence you to 2 months' imprisonment.

63Charge 5, a charge of stalking, I sentence you to 3 months' imprisonment.

64Charge 6, a charge of common law assault, I sentence you to one month's imprisonment.  

65Charge 7, a charge of common law assault, I sentence you to 3 months' imprisonment.  

66Charge 8, a charge of recklessly causing injury, I sentence you to 4 months' imprisonment.

67Charge 9, a charge of false imprisonment, I sentence you to 12 months' imprisonment.  

68Charge 10, a charge of reckless conduct endanger life, I sentence you to 12 months' imprisonment.

69Charge 11, a charge of common law assault, I sentence you to 3 months' imprisonment.

70Charge 12, a charge of common law assault, I sentence you to 12 months' imprisonment.

71Charge 13, a charge of make threat to kill, I sentence you to 9 months' imprisonment.

72Charge 14, a charge of make threat to inflict serious injury, I sentence you to 4 months' imprisonment.

73Charge 15, a charge of persistent contravention of a Family Violence order, I sentence you to 12 months' imprisonment.  

74Summary Charge 22, a charge of fraudulently use registration plate, I sentence you to 7 days' imprisonment.

75Summary Charge 26, a charge of drive unlicenced, I sentence you to 7 days' imprisonment.

76Summary Charge 30, a charge of drive under the influence, I sentence you to 14 days' imprisonment. Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 24 months.

77The base sentence is the sentence on Charge 2. All of the sentence on
Charge 15 and 4 months of each of the sentences on Charges 9, 10 and 12 are to be served cumulatively upon the base sentence and themselves. The remaining sentences of imprisonment are to be served concurrently. The total effective sentence is 42 months' imprisonment. I will set a non-parole period of 26 months' imprisonment. I declare your 345 days of pre‑sentence detention (excluding today) as time served under my sentences. 

S 6AAA  

78If you had not pleaded guilty to these offences but were found guilty after a trial, I would have sentenced you to 56 months' imprisonment and set a non-parole period of 35 months' imprisonment.

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