Director of Public Prosecutions v Hull (a pseudonym)
[2019] VCC 1474
•11 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WALLY HULL (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 5 September 2019 | |
DATE OF SENTENCE: | 11 September 2019 | |
CASE MAY BE CITED AS: | DPP v Hull (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1474 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Intentionally cause injury; make threat to kill; family violence; serious example of both offences; plea entered at reasonably early stage; no relevant prior convictions; remorse; good prospects of rehabilitation.
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited: Marrah [2014] VSCA 119; Kalala [2017] VSCA 223
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. McConaghy | Office of Public Prosecutions |
| For the Accused | Mr M. Reardon | Victoria Legal Aid |
HIS HONOUR:
1 Wally Hull,[1] you have pleaded guilty to one charge of intentionally causing injury to your wife, Jessica Saunders,[2] and one charge of making a threat to kill her.
[1] A pseudonym
[2] A pseudonym
2 The circumstances associated with your offending were set out in a summary of prosecution opening for plea which was tendered and read to the court by the prosecutor, Mr McConaghy. In short compass, those circumstances were as follows.
3 You married Jessica Saunders in 2005 and there were two children of that marriage, a daughter, aged eight, and a son, aged six, at the time of the offending in April 2018. In 2009, you and Ms Saunders purchased a house together in Hamilton. In about July 2017 you moved out of that house when you separated from your wife.
4 Following some threats you made about harming yourself in March 2018, your wife did not permit you to see the children. A report from a mental health worker was to be provided before you could have further face to face contact with the children.
5 From 16 March until 18 April 2018, you sent numerous text messages to Ms Saunders seeking to visit the children, however, those requests were refused.
6 On 18 April 2018 you sent the following text messages to her:
3.57 pm, 'Can I please come round and see the kids?'
4.02 pm, 'Yes or no?'
4.58 pm, 'Hello, can I see them please?'
7 At 6.29 pm you telephoned Ms Saunders. That call lasted for four seconds. At 6.30 pm she called you and that call lasted for eight minutes and 22 seconds. During that call you spoke with your daughter.
8 The following further text message exchange then took place:
6.42 pm, 'I really just wanted to see them today.'
7.10 pm, 'Can I please see the kids?'
9 Ms Saunders responded to your text messages by text in the following terms:
7.16pm, 'No. Stop asking to come here. You know you are not welcome in this home. Go to your solicitor and provide the required documents. I will not be replying to any further requests.'
7.16 pm you responded, 'He has them'.
10 At around 9 or 9.30 pm that night, Ms Saunders was in her bedroom looking at her phone. The lighting in the room was dim. She heard footsteps outside the bedroom door and called out to see who was there, but there was no response. Shortly afterwards, you came through the bedroom door and, as it was put on the plea, you launched at the victim.
11 Your wife said, 'What are you doing?', and you responded, 'You won't let me see the children'. You then pushed the victim onto the bed such that she lay on her stomach. You got on top of her and pinned her arms. She screamed and you told her to stop and grabbed a pillow and started covering her face with it. You then turned her over and pushed the pillow directly onto her face whilst saying, 'I'm going to kill you'. As you did this your wife was saying, 'Please stop. We can work this out', to which you replied, 'No, we can't'. Your conduct in uttering that threat in the circumstances I have just described constitutes charge two on the Indictment, make threat to kill.
12 As Ms Saunders continued to struggle and scream you told her to be quiet and then produced silver duct tape which you tried to put around her mouth and the back of her head. Your wife was understandably terrified. You again told her that you had come to the house because she would not let you see the children. You then placed your hands around her neck and started to choke her which caused her to gasp for breath. She tried to call out but could only make squeaking noises because of the force of the pressure that you applied to her throat.
13 As this was done the children could be heard crying. They cried out for you to stop hurting their mother and you told them to go back to bed. You stopped choking her but then proceeded to punch your wife at least 10 times to the left side of her face with your right fist, and you also punched her to the nose a number of times. The victim could feel blood running down her face and cried out for her daughter to come into the bedroom which she did. Your daughter then stood between you and the victim and said, 'Don't hurt Mummy any more'.
14 The conduct encompassed by your attack on your wife which included restraining her, attempting to suffocate her, attempting to gag her with tape, choking her and punching her repeatedly to the face and to her nose, together constitutes charge one on the Indictment, intentionally causing injury.
15 You next took the children into the lounge room, with your wife following. There you told them that they, 'Don't have to worry because I'm going to kill myself anyway'. Your wife asked you how you got into the house and you told her that you got in through the back window. After some time you left and your wife rang 000 and reported what had happened.
16 Police attended and observed large bloodstains at the top and bottom of the bedsheet along with a roll of silver duct tape. After the incident, a text message exchange took place between you and your brother and this exchange included you stating that you, 'Just wanted to see the kids' and 'Belted the fuck out of Jess’ because 'She would not let me see them'.
17 There was also a text message exchange with your sister. In that exchange you stated that you, 'Belted up Jess’ and you thought you broke her nose and that you, 'Just wanted to see the kids and she would not let me'.
18 Your wife was taken to hospital and later assessed by a forensic physician who documented her injuries as follows. There were numerous areas of bruising to her head and neck. There were right and left periorbital haematomas, right and left eye subconjunctival haemorrhages, numerous bruises to her chest, a bruise on her back and a bruise on her left thigh. She also reported experiencing dizziness each morning for the first few days following the incident.
19 In her first victim impact statement, to which I will refer more fully shortly, your wife described the bruising to her face as severe. She said she had bled profusely from the nose and mouth and that there were deep marks left on her neck.
20 Later that night you attended at the Hamilton Police Station where you were arrested. During the course of your interview with police you said that you could not remember much, that you could not recall entering the house through the back window but conceded that you must have. You stated, 'The only thing I can recall is I just wanted to see the kids. That's all I can remember'. You said, 'I sort of recall my daughter coming in and just crying and screaming'.
21 You agreed that you had not seen the children for about five weeks after an incident in which you had threatened self-harm. You agreed that something had happened in the house but you could not recall what that was. After the interview you were remanded in custody and you have now spent 510 days in prison.
Victim impact
22 Your former wife is not the only victim of this attack. The children, whom you professed you wanted to see, have also been left deeply scarred by what you did. In two victim impact statements your wife describes how, during this attack, she thought she was going to die and she relives this frightening experience almost daily. She is plagued by nightmares and is constantly fearful and anxious. She has been forced to continue to live in the family home where you did this to her until your family matters are resolved, and this has compounded the emotional trauma such that she never feels safe, even in her own home. Although the injuries you inflicted were not permanent, the bruising and marking you caused was acutely embarrassing for her.
23 Victim impact statements were tendered on behalf of your daughter and your son. Your daughter has been quite affected by your attack. Living in the same home she is constantly reminded of the painful memories of that night. She does not sleep well. She often wakes and suffers from nightmares. Her schooling has been affected and she remains fearful that you may return and attack her again.
24 Similarly, your son has trouble sleeping and insists on having someone else sleep in the same room as he does. He has, according to his mother, become excessively vigilant and much more anxious. Your wife's mother also provided a victim impact statement documenting the stress this offending has caused to those who are close to your family. She has also noticed adverse changes in the behaviour of the two children since this event and constantly worries about the long term psychological effects to them and to her daughter as a result of being subjected to your violence.
25 It is important that you understand that in formulating the sentence that must now be imposed, the impact your offending has had on those victims will be a significant consideration.
Procedural history
26 Turning to the procedural history in this matter. You were charged on 19 April 2018. A filing hearing took place on 20 April 2018. There were committal mentions on 29 June and 7 September 2018 which were adjourned to enable material to be obtained in respect of your mental health. On 30 November 2018, whilst the matter had originally been apparently resolved, there was then a change in solicitors and a committal was sought. However, that application was not granted and the matter proceeded by way of straight hand-up brief.
27 On 18 December 2018, there was an initial directions hearing in this court which was adjourned for negotiation. On 19 February 2019, there was a further initial directions hearing at which time the matter was listed for trial. On 2 April 2019, the trial date was confirmed. However, on 17 May 2019, the matter was resolved and you pleaded guilty on 31 May 2019.
28 As I understand that history, it is appropriate to sentence you on the basis that you indicated a preparedness to accept responsibility for the offences the subject of this Indictment whilst the matter was still in the Magistrates' Court, and that once the allegation of aggravated burglary was withdrawn in this court the matter was formally resolved. I was told that at no stage was the victim or your children required for the purposes of cross‑examination. Accordingly, your plea of guilty will be characterised as having been entered at a reasonably early stage and will attract a substantial reduction in the sentence that would otherwise be imposed.
Personal history
29 Turning to your personal history. You were born in July 1976 and at the time of this offending you were 41 years of age. You are now 43. Although you have one prior criminal finding of guilt, relating to a theft from employer dealt with at the Caloundra Magistrates' Court on 22 May 2007, and for which you were placed on a bond to be of good behaviour without conviction, I do not regard that matter as relevant for the purposes of formulating the sentence. It was a relatively minor matter that did not involve violence and which occurred some 12 years ago.
30 You were born in Mildura and you lived there with your parents and three older siblings until the family moved to MacArthur when you were about three or four years of age. In the early part of your childhood, your father worked as a policeman and then went into farming. Later, he bought a general store in Hamilton. Your mother worked raising the family and later worked in the family business.
31 It is of some significance that your father drank heavily and that you were regularly exposed to family violence directed towards your mother and to your older siblings and to you. Your parents ultimately separated in 1994 when you were about 17 years of age. Two of your older siblings are police officers with whom you get along well and they are supportive of you in your current predicament. You are estranged from your oldest sister.
32 You did your primary schooling in MacArthur but apparently struggled academically because of dyslexia and because you were frequently bullied. You then attended Hamilton Technical College where you fared better academically and socially. After Year 9, your family moved to Brisbane where you attended a Catholic private school. You struggled with that transition but it appears you persevered and completed Year 12.
33 Whilst still at school you started working at Pizza Hut and after finishing school you continued there full time and gained a managerial position. You also attended TAFE to improve your literacy. After leaving Pizza Hut, you went to live in Bundaberg with your mother. You there worked in a number of positions initially with BI-LO, and then as a sales representative with Smith's Chips and Peters Ice Cream. In 2008, you moved to Hamilton to work in a mining operation until you were made redundant in 2017. You therefore have a solid work history.
34 You were involved in a number of serious relationships before meeting the victim of this offending in around 2002. As I have indicated, you were married in 2005. You told your assessing psychologists, Ms Daria Sizenko and Ms Pamela Matthews, that your relationship with your wife was initially good but deteriorated after the birth of your second child in the context of what you said was your wife suffering from post-natal depression. You say that caused significant issues within the relationship and that there were frequent fights and arguments.
35 You separated from her in July 2017. In explaining the breakdown of your marriage, you told Ms Sizenko that you did not want your children to grow up witnessing their parents fighting. I pause there to observe that I hope you now appreciate the irony of that statement given the circumstances in which you perpetrated this violence.
36 Ms Sizenko and Ms Matthews form the view that as at 23 July 2019, you still likely meet a diagnosis of major depressive disorder, but your psychological presentation and symptoms were insufficient to justify a diagnosis of generalised anxiety disorder or post-traumatic stress disorder. They go on to state in their report as follows:
“Mr Hull’s depressive mental state, in combination with his ceasing his medication for a significant period, have likely greatly contributed to his offending. It is possible to say that Mr Hull acted recklessly as a last attempt to see his children with the belief that he will suicide soon thereafter. This later mental state is clinically described as last resort thinking and involves diminished reasoning capacity outside the goal directed behaviour. Although his entrance of the property to see the children can be attributed to such, his violent behaviour towards his ex-partner cannot be solely attributed to such. It is possible that it was in part influenced by his inability to problem solve and consider appropriate alternatives of dealing with relational problems as well as difficulties with appropriate emotional regulation.
Although such factors can serve as partial explanations for his offending behaviour, they do not excuse such. It is evident that Mr Hull had few positive role models throughout his life that would provide him with an understanding of how to resolved conflict and compromise, instead of learning to resolve issues through force. As such, Mr Hull holds personal beliefs that seemingly condone violence as a means of getting one's way, as well as attitudes further supporting his impulsivity as reactiveness due to either the inability or lack of desire to control such.”
37 As to your prospects for rehabilitation, Mr Reardon, who in a very thorough plea on your behalf, relied on your lack of relevant prior convictions, the work and study you have undertaken in custody, which has been directed to managing and resolving the sorts of problems that led to your offending, and the significant support provided to you by your elder sister, to submit that you had reasonable prospects for rehabilitation.
38 I note that your sister provided an impressive reference in which she states you have, 'accepted responsibility for your actions, expressed remorse and participated in every possible course offered to you to understand and improve your behaviour'.
39 Once you are released you hope to live with her and she has undertaken to provide the support and stability that you will need to re-establish your life.
40 In support of the submission that you have used your time in remand as constructively as possible, a reference was tendered confirming that in your work as a leading hand in the kitchen at Ravenhall Correctional Centre, you are a well-respected and valued employee. You have been subjected to random urine analysis which has been negative for illicit substances, but most importantly, in my view, you have completed a series of life skills, parenting and relationships courses which will better equip you once you are released.
41 Mr Reardon submitted that I should not be satisfied beyond reasonable doubt, as I would need to be, if I was to sentence you on the basis that this assault was premeditated. It was not clear, he argued, whether the duct tape used in the attack had already been present in the house as opposed to you having brought it to the house for the purposes of the attack.
42 In addition to your prospects for rehabilitation, Mr Reardon also relied on your plea of guilty, the disadvantage you experienced as a child and particularly your exposure to family violence, and what he submitted would be the added burden of imprisonment for you given your major depressive disorder. In those circumstances, having regard to the amount of time you have already served in custody, it was submitted that a sentence of imprisonment could be imposed in combination with a community correction order.
43 Mr McConaghy referred, on behalf of the prosecution, to the presence of a number of aggravating features that need to be taken into account for the purposes of formulating sentence. First and foremost was the fact that the making of the threat to kill and the infliction of these injuries were acts of family violence. Second, it was submitted that you mounted this attack at a time when the occupants of the house were likely to either be asleep or getting ready for bed. Third, you knew that the children were present in the house and you continued to attack your wife after you knew they were awake. Indeed, the older child intervened and witnessed the immediate aftermath of what you had done. The fourth aggravating feature was the use of the duct tape.
44 I was reminded that the maximum penalty for each of these offences was ten years' imprisonment. Consistent with authority, the prosecutor submitted that acts of family violence such as this require clear denunciation and the emphatic expression of general and specific deterrence. Accordingly, it was submitted the only appropriate sentence was the imposition of a term of imprisonment and the setting of a non-parole period.
Consideration
45 Taking all of these matters into consideration, it is important to bear in mind that you are 43 years of age, you do not have a relevant criminal history, you have the support of your sister, and together with the work that you have done in custody, I form the view that your prospects for rehabilitation are good, if not very good.
46 Your plea and the apparent motivation to change that you have shown also leads me to the view that you are remorseful for having subjected your former wife and children to this violence.
47 Whilst I do not accept that you have found prison more burdensome than might be so for an ordinary prisoner, as I indicated to your counsel on the plea, the fact that you have behaved as a model prisoner is very much to your credit.
48 That said, your rehabilitation and the matters generally personal to you have to be balanced against the seriousness of what you did on this occasion. Time and again, offending of this nature is too often perpetrated by men who choose to respond with violence when confronted with relationship difficulties.
49 In light of the findings made by the Royal Commission into Family Violence, and the more recent statements of the Court of Appeal highlighting the pervasive damage that exposure to family violence causes to our community, this Court must make clear that male violence directed at female partners is utterly unacceptable. As was said by the Court of Appeal in Marrah[3] at [25]:
'The sentences imposed for family violence must convey the unmistakable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.'
[3] [2014] VSCA 119
50 By way of further example, in Kalala[4] at [59], the Court of Appeal stated:
'The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This court has repeatedly emphasised the need to condemn family violence in line with community expectations. In Filiz v The Queen the Court acknowledged the, "Shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44"'.
[4] [2017] VSCA 223
51 Those considerations require me to strongly emphasise general deterrence. That is, to impose a sentence on you that shows other men who might be disposed to respond to relationship difficulties with violence, that if they do so they will be punished severely. I should say, however, that because of the work that you have done in custody and the remorse that I have found that you have shown, there is, in my view, much less need to emphasise specific deterrence.
52 On the basis of the material before me, I cannot conclude that this attack was premeditated. Nonetheless, these are both serious examples of these offences. The aggravating features referred to by the prosecutor, in particular the use of the duct tape and the exposure of the children as at least ear witnesses to your violence, highlight their gravity.
53 It follows that I accept the prosecutor's submission that nothing less than the imposition of a term of imprisonment with a fixed non-parole period would adequately address the need to denounce what you did and deter others. Accordingly, you will be sentenced as follows. Would you please stand, Mr Hull.
54 On the charge of intentionally causing injury, charge one, you will be convicted and sentenced to a term of imprisonment of three years and three months.
55 On the charge of making a threat to kill, charge two, you will be convicted and sentenced to a term of imprisonment of two years.
56 I will order that 12 months of the sentence imposed on charge two be served cumulatively upon the sentence imposed on charge one, making a total effective sentence of four years and three months' imprisonment.
57 I will fix a non-parole period of two years and three months.
58 I will declare pursuant to section 18 of the Sentencing Act1991 (Vic) (‘the Act’) that you have served 510 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.
59 I will further declare pursuant to section 6AAA of the Act, but for your plea of guilty, I would have sentenced you to a term of imprisonment of five years and three months, with a non-parole period of three years and three months.
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