Director of Public Prosecutions v Hull

[2018] VCC 1303

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02268

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW HULL

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2018; 22 August 2018; & 29 August 2018
DATE OF SENTENCE:	29 August 2018
CASE MAY BE CITED AS:	DPP v Hull
MEDIUM NEUTRAL CITATION:	[2018] VCC 1303

REASONS FOR SENTENCE
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Subject:         Criminal law – sentencing – aggravated burglary, recklessly cause injury and theft and a related summary charge of commit an indictable offence whilst on bail – plea of guilty entered at an early stage – delay in sentence due to prisoner absconding on bail – extra curial punishment – moderate ABI as a consequence of the incident – co-offender dealt with by way of a combination of a term of imprisonment and Community Correction Order – co-offender youthful and he had established excellent rehabilitation prospects - disparity of sentence justified having regard to the prisoner’s age and antecedents – term of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry	John Cain Solicitor for the Director of Public Prosecutions
For the Accused	Mr G. Casement	Ms S. Condon Stary Norton Halphen

HER HONOUR:

1Matthew Hull, you have pleaded guilty to one charge of aggravated burglary, one charge of recklessly causing injury, and one charge of theft.  In addition, you entered a plea of guilty to a summary charge, Charge 9, being a charge of commit an indictable offence - namely, aggravated burglary - whilst on bail.

2The charges are serious, and that is reflected in the maximum penalties prescribed by Parliament.  They are 25 years' imprisonment for aggravated burglary, five years' imprisonment for recklessly cause injury, ten years' imprisonment for theft, and in relation to the summary charge, three months' imprisonment or 30 penalty units.

3I will now proceed to sentence you on the basis of the prosecution opening that was read and tendered at the plea hearing, there being no dispute as to the factual basis upon which the Crown opened this matter.

4Briefly, in the early hours of 27 September 2015 (at approximately 5.45 am), you, in the company of Benjamin Nagy (“Nagy”), entered a residential property located at Mount View Road, Upper Ferntree Gully.  You were both disguised, wearing dark balaclavas and gloves.  You both entered the property and endeavoured to break into a bungalow located at the rear of the premises, ostensibly looking for a man who you called "Aaron."

5Corey Newman, the occupier of the premise, was awoken by a fellow housemate, Shaun Dekeizer, who had heard loud noises and smashing coming from the vicinity of the bungalow located in the backyard.  Newman went outside to investigate, and then he was confronted by you both.  You demanded to know where Aaron was, and he told you that there was no Aaron living there.  Your co-accused Nagy then said, "Stop being smart.  Get the keys."  He wanted Newman to open the bungalow.  Newman kept saying that he did not have any keys, and he did not know any person known as Aaron.

6At the time, your co-accused Nagy was carrying a silver double-barrelled handgun as well as a tomahawk, and you were carrying a steel bar.  Nagy pointed the gun at Newman's head and told him to open the bungalow.  Nagy then told you to watch over him - that is, Mr Newman - and not let him move.  He then went to the side of the bungalow and smashed the bungalow window, gaining entry.  He then opened the door to the bungalow, and that constitutes Charge 1, aggravated burglary.

7You then pushed Newman inside the bungalow. He was constantly being asked by Nagy, "Where is he?", referring to the man whom you called Aaron.  Nagy struck Newman twice to the side of his head with a solid pillow case that he was holding, causing Newman to suffer pain, bleeding, bruising and swelling.  He fell down onto one knee, and that is Charge 2, recklessly cause injury.

8Thereafter, you ransacked the bungalow.  A couple of cash tins containing $1500 in notes and cash were removed.  That is Charge 3, theft.

9You then left the premises in company with Nagy, and as you did so, you were followed by a Mr Charles, the actual occupant of the bungalow, who had come home whilst the incident was unfolding, and he had seen what was happening. 

10Charles followed you, together with Dekeizer.  Charles picked up a sledgehammer from the backyard and began to follow you both as you left the premises through the back gate.  You were both seen approaching a nearby white Mercedes van.  Newman got into his car with the intention of chasing you both as you were fleeing.

11You made your way to the front yard of another house at the corner of Willow and Mount View Roads.  Dekeizer and Charles caught up with you there, and then you began fighting.  Nagy swung the tomahawk at Dekeizer, connecting with his shoulder.  Charles assisted Dekeizer by hitting you in the back with a sledgehammer.  Charles was then hit by you.  You managed to get control of the sledgehammer and swing it towards Charles.

12At this stage, Newman approached the group that was fighting and drove his car at you, hitting you, causing you to roll up on the bonnet of the car and fall off the car.  You, together with Mr Nagy, fled the scene.

13Eventually, police were notified of what had happened, and you were both arrested at a later stage.  At the time Nagy was arrested, he was wearing a backpack in which police found a black balaclava and black gloves. 

14Police did not immediately locate the handgun or tomahawk, but following later searches, they did recover those items. Nagy's DNA was found on the handgun, and on the inside of a right-hand glove, the inside surface of a balaclava, and the tomahawk.  Your DNA was found on the inside of a glove recovered from the scene.

15At the time you were arraigned, you admitted your prior criminal history, and there are four court appearances.  You have convictions for breaching an intervention order, criminal damage, intentionally cause injury, common law assault, aggravated burglary, intentionally damage property, assault police, resist police, and use insulting words in public place.

16Significantly, you have a recorded conviction for aggravated burglary.  On 17 July 2007, at Melbourne County Court, you were sentenced by His Honour Judge Howie.  His revised sentencing remarks set out the background and details of that offending.

17You committed that offence when you were aged 18 in company with three other men whom you recruited.  You forced entry to an occupied residential home in the early hours.  Front windows, front security door, and front door, all of which were forced open, were damaged.  Your group was armed with a cricket bat, curtain rail, and a car tyre lever.

18A neighbour who came to the aid of the occupants at the home, Evan Cameron, was struck by a hard blow to the head causing injuries during the course of that offending.  The motivation for your offending was stated to be that you had had an ongoing dispute and bore a grudge against another man associated with the occupants of the home.

19His Honour Judge Howie sentenced you to a term of five months' imprisonment that was wholly suspended, pursuant to s.27 of the Sentencing Act 1991, for a period of two years, together with a two year community-based order with special conditions. You adhered to the terms of both orders.

20You have also been dealt with for subsequent offending.  At Frankston Magistrates' Court on 22 February 2016, you were dealt with for contravening a community correction order that was imposed on 18 September 2012 in respect to the charges of assault police and resist arrest.  The contravention was found proven, and with conviction, the matter was further adjourned until 22 July 2017.

21On the same day - that is, 22 February 2016 - at Frankston Magistrates' Court, a large consolidated plea hearing was heard and that related to charges of possession of methylamphetamine, criminal damage, unlawful assault, commit an indictable offence whilst on bail, unlicensed driving, persistent contravention of a family violence order and assault with a weapon, for which you were convicted and placed on a one year community correction order with conditions.

22On 29 August 2016, you were dealt with in respect to contravention of family violence intervention orders, for which you were convicted and fined.

23You have been extended many opportunities by the courts in the past and have received a number of non-custodial dispositions, including fines, community-based orders, and a wholly suspended sentence.

24There is an outstanding matter due to be dealt with at Melbourne Magistrates' Court in September 2018, and that relates to breach of a community correction order and theft of a motor vehicle, breach of the condition of  a good behaviour bond, and unlicensed driving.

25Your co-accused Nagy entered a plea of guilty and was sentenced by this court on 26 October 2017.  In respect to the same set of offending, he was convicted and sentenced to 72 days' imprisonment, being equivalent to the time he served in adult prison, to be followed by a community correction order of three years' duration subject to supervision, 250 hours of unpaid community work.  Treatment and rehabilitation programs were also required in respect to drugs and offending behaviour.

26Nagy had served 72 days' imprisonment in an adult prison on remand during the period of time when there were very real restrictions imposed on all prisoners, including 23-hour lockdown, following the riots that had taken place at the Metropolitan Remand Centre in July 2015.

27He was aged 19 and was dealt with by the court as a youthful offender.  As such, different sentencing principles apply.[1]  Rehabilitation is the significant sentencing consideration for youthful offenders.  He had no relevant, or any, prior criminal history. 

[1]R v Mills [1998] 4 VR 235,241 (per Batt JA, with whom Phillips CJ and Charles JA agreed)

28His role was considered to be equal to yours in the commission of the offending.  He was eventually released on restrictive bail conditions on 8 December 2015.

29At the time of the offending, he had a raging ice habit, and following his release, he was admitted to and successfully completed a 28-day inpatient detoxification program at the Wyndham Private Hospital.  He demonstrated to the court total abstinence, and the court was satisfied that he had effectively overcome his addictions, and was totally abstinent at the time of sentence.

30Evidence was provided to the court that confirmed he had returned home,  he was living with his parents, whom had zero tolerance for drugs.  He was compliant with all restrictions placed upon him pursuant to his bail conditions.  He had obtained full-time employment, and was working in a family business, and was having counselling.

31Dr Doyle, his general practitioner, provided him with counselling.  Dr Doyle provided a report to the court that confirmed Nagy was being supported to restrict his exposure to a risky social group, obeying rules and laws, making good judgements, demonstrating proper impulse control, and performing as an otherwise law-abiding, functional member of our society.

32Nagy had strong family support.  He demonstrated that he had made the most of the opportunity to reform following his conditional release on strict bail conditions over a period of lengthy duration prior to sentence.  Nagy had also been dealt with in respect to some outstanding offending for which a community correction order had been imposed, and he had demonstrated he was complying with and making good progress on that order.

33Therefore, the court found in his case to return him to prison would be counterproductive and disruptive of the very real progress he had made whilst living in the community on conditional release.  The court was satisfied that his was an exceptional case whereby the punitive aspects of sentencing could be dealt with through the imposition of a community correction order of some duration.

34In sentencing Nagy, the court emphasised there were a number of aggravating features to the offending.  Those features apply equally to your case.  The offending was a serious example of this serious offence of aggravated burglary.  It was committed in company.  Both of you were disguised and armed, Nagy being armed with a handgun and tomahawk, and you being armed with a steel bar.

35Your behaviour collectively was violent, aggressive and threatening.  It involved the invasion of private property in the early hours of the morning, and you were present when Nagy inflicted violence upon the victim Newman.  Thereafter, you both stole property from the premises before fleeing.  You were both on bail at the time.  You were on bail for unlicensed driving.

36Overall, I consider that your role was equal to Nagy's in this offending. 

37The impact of the offending has been profound.  I have had regard to the contents of the victim impact statement that was read by Mr Barry, the prosecutor, at the plea hearing.

38Newman experienced major loss of enjoyment of life, happiness, distress, paranoia, and grief as a consequence of your crime.  He suffers from post-traumatic stress disorder.  He also had to relocate to the country because he had a feeling of real insecurity at his home after this incident - which, by the way, had been his childhood home for 22 years.  That move was very disruptive, and he continues to suffer the emotional and financial stress that occurred as a consequence of the offending.

39Mr Hull, in sentencing you, there is a real need to denounce your behaviour.  Having regard to the seriousness of the incident, stern punishment is warranted.  General and specific deterrence play a significant role in your sentence.

40I have regard to your personal history and background.  You were born in Frankston.  You have one full brother and two half-brothers, and a half-sister.  Your parents separated and divorced when you were young, and both have re-partnered.  You spent time with both sets of parents during your childhood.  You were unfortunately exposed to violence during your early developmental years.

41School was very difficult for you, as you were not very academic.  You repeated Year 7 and completed Year 8 with a pass.  Intermittently, you had a teacher's aide, but you found yourself getting very frustrated with the aide.  You were expelled twice - once from primary school, once in secondary school.  You had the diagnosis of ADHD made, and there were associated behavioural issues.

42You left school aged 15, and thereafter completed a three-year roof tiling apprenticeship.  That employment ceased when you suffered an epileptic fit, and thereafter, you were able to obtain alternative employment as a concreter for which you have a strong work history, having worked in that area for some ten years.

43You successfully ran a business as a concreter between the ages of 22 to 28.  Sadly, the business ceased following difficulties you had associated with escalating drug use and offending behaviour in the context of a breakdown of a relationship.  I noted prior to your remand you were receiving Newstart allowance and you were not working.

44Your mother has been a great source of support to you over the years and has been present at all plea hearings.  You have a good relationship with her, your father and your other siblings. 

45You have had two significant intimate personal partnerships in the past:  one with a woman called Nicole, with whom you have two boys - Lachlan, age 11, and Brayden, age 10 - and the other with Georgie, with whom you have a son - Mason, aged 4.

46Due to past incidents, you have not had contact with your children, and plan to address this upon your eventual release.  You have expressed a desire to re-establish your relationship with your three children in the future.

47You are currently in a relationship with Amy, whom you have known for some 18 months. It is your intention to resume that relationship and return to live with your mother in Langwarrin upon your eventual release.

48Due to your level of drug use, you say that you do not recall the actual details of this incident.  The context to your offending was to you too had been using ice heavily and were mixing with peers who were heavily involved in the drug scene.  Your personal relationship had broken down, and your drug use had spiralled out of control, and was a very significant problem.  You knew Nagy, as he was an ice user, through peer associations.

49Whilst explaining in part the reason for you participating in the offending, it in no way excuses the role you played.  You now sincerely regret your involvement in the offending and accept responsibility for your wrongdoing.

50One aspect of your situation which differs from Nagy is that you suffered extra-curial punishment as a consequence of your in this offending. I have had regard to the findings of Susan Carey, clinical psychologist, whose report dated 25 June 2018 was tendered at the plea hearing.  She had regard to your personal history and background, and your medical history.  She noted that you were diagnosed with epilepsy in your mid-teen years for which you were prescribed Epilim.

51Following the attack, after the offending, you were initially admitted to Dandenong Hospital and then transferred to St Vincent's Hospital, where you were admitted on 28 September 2015 until discharge on 10 October 2015.

52St Vincent's Hospital records show you were admitted in the context of the alleged attack with a sledgehammer to head, chest and back, and injuries noted included left rib fractures and query loss of consciousness.  Post-traumatic amnesia was reported to last for at least five days. 

53The assessment of post-traumatic amnesia was complicated by low mood, medication sedation, and possibly pre-morbid personality factors.  It is unclear whether a CT or MRI brain imaging was conducted. 

54Your mother was informed that you had a 4 millimetre bleed on the brain.  Your admission was complicated by behavioural disturbances and marked agitation.

55Ms Carey noted your history of drug and alcohol abuse, commencing as a teenager.  The history she recorded was you began using methamphetamines from age 24, and at the time of this offending, you were using daily.  You told her that you had not used any illicit substances during the two years in the community following your release on bail.

56Since September 2015, you told her you had been experiencing depression and anxiety, and you had been prescribed medication for that by your general practitioner, Dr Loosemore.  Currently, you are prescribed anti-depressants whilst in gaol following a threatened suicide about three months ago shortly after you were remanded.

57Ms Carey concluded that you have borderline intelligence with full-scale IQ measured at 74.  She did not think you had an intellectual disability, but nonetheless, she felt your intellectual functioning was below moderately average within the borderline range.  Her opinion was that the nature and pattern of your cognitive deficits and reported behavioural personality changes is consistent with a moderate acquired brain injury.

58The primary aetiology of the brain injury is the reported head injury that occurred in September 2015, with a smaller contribution to your pre-injury substance use.  She was not able to access any neuroimaging results, but she considered there was sufficient collateral information to support her diagnosis of moderate ABI.  I have had regard to her report, and I accept her findings in that regard. 

59Ms Carey also was of the opinion that you might be suffering from post-traumatic stress disorder and recommended clarification of your mental health diagnosis.

60Ms Carey's opinion is that you will continue to experience ongoing difficulties with executive functioning and emotional behavioural regulation as a result of your ABI.  She concludes that it is as a consequence of the injury that you received following the offending, and she characterises your deficits as being problems with your working memory, inhibition control, abstract reasoning, planning and organisational skills.

61Dr Jenny Patterson, senior clinical and forensic psychologist at Forensicare, Community Forensic Mental Health Service, was requested to examine you to clarify your mental health status. She provided a report dated 14 August 2018.  She states, following her review and interview with you, that you present with some symptoms consistent with post-traumatic stress disorder.  However, the nature and the severity of your symptoms, in her opinion, do not meet the threshold to warrant full diagnosis of post-traumatic stress disorder.

62Similarly, whilst you are reporting experiencing periods of low mood and anxiety, she stated they appear to be linked to your time in gaol, uncertainty about court outcome, and separation from family.  She did not consider that your degree of distress was disproportionate to that of an average prisoner.

63She had regard to collateral information and stated there has been some change to your personality since sustaining the ABI that you self-report, and the psychological testing suggested that you have a long-standing pattern of regular fluctuations in your emotional state and interpersonal relationships which has been exacerbated by substance abuse.

64At her assessment, she stated your presentation appeared better explained as a function of your personality structure rather than a mental illness.  Nonetheless, she considered that you presented with some sub-threshold mental health symptoms which, she states she did not believe that a period of gaol would weigh more heavily upon you than a person of normal mental health.

65She considered that you present at least a moderate risk for future violence and a high risk for general reoffending in the medium to long term, in the absence of specific interventions.  She recommended active case management should you be released on a community-based disposition, which involved monitoring substance abuse, drug and alcohol treatment programs, violence intervention programs through offending behaviour programs.

66Should you remain in custody, she recommended you need to engage in offence-specific programs targeting general offending and violence and substance abuse programs, and also psychoeducational programs focussed on improving your emotional regulation skills so that you cope better, and have an ability to adaptively respond to stress.

67Having regard to her expressed opinion, I do not consider that the principles of Verdins, in particular limbs five and six, are enlivened.  Nevertheless, I have taken into account in a general sense that you do have symptoms that are consistent with post-traumatic stress disorder and also your moderate ABI does have an impact upon you whilst you are in custody.

68I noted her comment that a strength for you is that you had a previously good work ethic which had been evident even in prison until recently, plans for future employment when you return to the community, and the support of your family and a current intimate relationship.

69There has been a delay in your matter proceeding in the court.  The charges were first laid on 27 September 2015.  You were released on bail on 14 December 2015.  A committal hearing was then conducted over two days from 19 December 2016, and thereafter you were committed to stand trial.

70The matter settled shortly prior to the trial date of 9 October 2017.  Following negotiations, the matter resolved and on 6 October 2017, you were arraigned and pleaded guilty to the charges.  The matter was fixed for a plea hearing on 1 March 2018.  You failed to appear on that date, therefore, a warrant for your arrest was issued.  The warrant was executed on 12 April 2018 and you were remanded in custody.

71In sentencing you, I have had regard to the matters put in mitigation on your behalf by Mr Casement.  I accept that there is real utility in your plea of guilty.  You spared the witnesses, especially the victim Newman, the trauma of having to come to court to give evidence at your trial.  You indicated a willingness to enter a plea of guilty on 27 September 2017, and that was prior to the commencement of the trial proceedings.  You were the first offender to offer to plead guilty in respect to the offending.

72Through your plea, you have indicated a willingness to accept responsibility for your wrongdoing and have facilitated justice, and your sentence will be discounted accordingly.  I consider the plea of guilty is indicative of genuine remorse.  Further, I note that you expressly stated to Ms Carey you were remorseful, and you were not in the right frame of mind at the time you offended.  You now express a desire that you do not wish to return to using illicit drugs or offending of any description in the future.

73I have accepted as a mitigating factor that you suffer a moderate acquired brain injury as a result of your injuries suffered following the offending.  The extra-curial punishment is permanent and will continue to affect you into the future.

74I am satisfied that the effects of your moderate acquired brain injury will place a greater burden upon you for other prisoners, and I have taken that into account.  I have had regard to the support you have from your family, and expressed remorse and desire not to you use drugs in the future, and you are willing to accept appropriate treatment.  Therefore, I consider that you do have good prospects of rehabilitation.

75Mr Casement sought an order be made that you be released on a Community Correction Order having regard to the fact that you had been in custody for 217 days, and also the fact that regard needs to be had by the court to the principle of parity.

76Your offending and circumstances can be significantly distinguished from the co-accused, Nagy.  As I have already stated, he was a young offender, only 19 at the time.  He had no prior criminal history.  Whereas you are not a youthful offender.  You were aged 28 when this offending occurred, and significantly, had a relevant conviction for an aggravated burglary, which I also consider to be a serious example of that charge, that was committed in company, for which you received a gaol term that was wholly suspended in combination with a community-based order.

77Nagy's circumstances, I have already described.  He experienced severe restrictions whilst on remand at MRC.  He was able to demonstrate his very real progress towards his own rehabilitation whilst adhering to strict bail conditions, and as a young offender, different sentencing principles apply.  There is also a need for the court to avoid imposing adult imprisonment on a youthful offender, especially where that person is beginning to appreciate the effect of his past criminality.

78Notwithstanding the mitigating factors that were highlighted on your behalf by Mr Casement, including the effect of the extra-curial punishment, I consider having regard to your role in the incident, your age and antecedents, that a disparity in your sentence can be justified.

79In formulating the appropriate sentence, I must denounce your conduct on behalf of the community.  The offending is serious. Denunciation, general and specific deterrence, just punishment, and protection of the community, assume real importance and prominence in your sentence.

80I have received a report that you have been assessed as being suitable to undertake a Community Correction Order.  Ultimately, Mr Casement sought a combination order that would incorporate a gaol term to be followed by a Community Correction Order.  Mr Barry for the prosecution sought the imposition of a gaol term.

81On balance, in order to deter others, to express denunciation, and to properly punish you for the offending, I find the only appropriate sentence is a term of imprisonment to be immediately served.

82You have not demonstrated whilst on bail that you have seized the opportunity to reform, in contrast to Nagy, who was able to show the court that he had completely his life around.  He showed a real determination to maintain his affirmative lifestyle, notwithstanding that he was living on very restrictive bail conditions.

83Consistency of punishment reflects the notion of equal justice, and the parity principle is but one expression of it.  The parity principle requires that like offenders should be treated in a like manner, but allows for the imposition of different sentences to reflect different degrees of culpability and the different circumstances of offenders.[2]

[2]Greene v R (2011) 244 CLR 462 at [28]

84Because of the reasons that I have already outlined, I consider that you present with different circumstances from Nagy, and that leads to the imposition of a different sentence. 

85The overall seriousness of your offending dictates the imposition of a term of imprisonment to be immediately served.  I have, however, moderated the sentence imposed having regard to all the mitigating features highlighted, and in particular, the extra-curial punishment you have suffered.

86I will now proceed to sentence you, Mr Hull.  If you could please stand. 

87The formal court orders are as follows.

88Charge 1, aggravated burglary, you will be convicted and sentenced to three-and-a-half years' imprisonment.

89Charge 2, recklessly cause injury, convicted and sentenced to two years' imprisonment.

90And Charge 3, theft, convicted and sentenced to one year's imprisonment.

91I make the following order for cumulation.  Six months of the sentence imposed on Charge 2 is to be cumulative upon the sentence imposed on Charge 1, making a total effective sentence of four years' imprisonment.

92I direct that you serve a non-parole period of two years and six months.

93In respect to the uplifted summary charge of committing an indictable offence whilst on bail, you will be convicted and sentenced to one month imprisonment. I note that the Sentencing Act provides that that shall be served cumulatively unless directed otherwise, and in this case, I will be directing otherwise so that therefore that is concurrent with the total effective sentence imposed.

94I make the following declaration pursuant to s.6AAA of the Sentencing Act:  but for your plea of guilty, I would have imposed a term of six years' imprisonment to serve four years.

95I declare that you have spent 217 days by way of pre-sentence detention, and direct that be entered into the records of the court.

96I make the ancillary orders sought; namely, the disposal order and the forfeiture orders sought.

97And finally, I make the order pursuant to 464ZF of the Crimes Act for the taking of a forensic sample, and I have had regard to the seriousness of the offending, the fact that such an order is not opposed, and I consider it to be in the interests that such order be imposed.

98The only thing I need to tell you, Mr Hull, is that you will be requested to provide a forensic sample whilst you are in custody at some stage.  You will be provided with a cotton bud that you have to put in your mouth.  Provided that you do that, that will complete your requirements under the order.  But if you do not, I have to tell you that the authorities can use reasonable force, including the taking of a blood test to enable that sample to be taken.

99I think that concludes everything that I need to cover.

100MR BARRY:  Yes, Your Honour.  If Your Honour pleases.

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