Director of Public Prosecutions v Hummer
[2017] VCC 658
•26 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01370
Indictment No: G10555709.1
Case No. CR-17-00543
Indictment No. G10555709.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE DAVID HUMMER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 May 2017 | |
CASE MAY BE CITED AS: | DPP v Hummer | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 658 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Yousuff | |
| For the Accused | Mr C. Thompson |
HER HONOUR:
1 Shane David Hummer, you have pleaded guilty to one charge of intentionally causing injury, which is Charge 2 on Indictment G10555709.1. You were found not guilty by way of jury verdict on Charge 1 of aggravated burglary. Charge 3 was an alternative to Charge 2, and accordingly, was dealt with by your plea of guilty to Charge 2.
2 You also pleaded guilty to a charge of criminal damage, which is Charge 1 on Indictment G10555709.2.
3 You also pleaded guilty to uplifted Summary Charge 6 of committing an indictable offence whilst on bail. The offences that are the subject of that charge are the offences of intentionally causing injury and criminal damage to which you pleaded guilty.
4 The circumstances of your offending are set out in the Prosecution Opening for Plea Following a Trial, which was tendered as Exhibit A. In setting out the circumstances, the prosecution has taken into account the jury verdict in respect of Charge 1. The issue in relation to that charge was whether the jury accepted that the assault on the victim occurred inside his premises. The jury was apparently not satisfied of that matter, and that verdict has been reflected in the prosecution Opening for Plea.
5 In brief, the circumstances of your offending are as follows. The offending occurred on 23 February 2016. The victim was at home at the time. He was aged 74, and is unable to walk. He uses an electric wheelchair as a result of suffering from cerebral palsy and an acquired brain injury. The victim lives alone in a single-storey unit with a ramp and a lawn out the front. He is assisted by carers on a daily basis.
6 The victim saw you through his window walking past the letterboxes. He went out down his ramp in his wheelchair and saw you lying on the lawn near the letterboxes and wooden fence inside the property. He asked you what you were doing and if you were all right, and if you realised you were trespassing. You replied with something like “Fuck”, and then rolled over with your back to the victim.
7 You then got up and started punching the victim. You grabbed his neck and pushed his face to the side. You punched him to the left eye with a closed fist and hit him several times, so that he had a cut to his nose and started bleeding, causing blood to spatter over your singlet. During the assault, the victim’s glasses came off. You said that he had been annoying you for 12 years, and that if you had had a knife, you would have finished him off. The victim says that he has never seen you before. The victim was well known in the local area due to being quite regularly on a nearby corner in his wheelchair.
8 The victim called his case manager, who came to his unit and found the victim with injuries and his glasses on the floor. The victim saw you again out the front of the property through the window. The case manager went out and saw you walking down the driveway. She asked if you were responsible for the assault and you said, "Yeah, and I would like to finish it off. It’s been going on for 12 years." Then you walked off down the driveway towards the rear of the units. Police subsequently found you lying down in another unit backyard. You said that you were fine, and you were arrested.
9 The victim suffered a laceration to his nose, bruising and swelling around his left eye, a large left subconjunctival haemorrhage, three 2 to 3 centimetre linear abrasions to the left side of the upper lip with surrounding bruising, and a 2 to 3 centimetre bruise to the right side of his neck. A CT scan revealed a nasal bone fracture bilaterally with deviation to the right, and a fracture of the left orbital floor lateral to the infraorbital foramen with no displaced fragment or herniation of the orbital contents. The victim spent two days in hospital. Those circumstances relate to Charge 2 of intentionally causing injury.
10 You were interviewed by police after your arrest. You became agitated and angry, so the police decided to stop the interview. You were left in the interview room with a police officer, who saw you pace up and down the room, then kick the left wall of the room, causing the plaster to break. That is the subject matter of Charge 4 of criminal damage. You tried after that to kick another wall, but were unsuccessful. You then attempted to ram an interview machine into the front wall next to the door. The wall was subsequently patched and painted, costing Victoria Police $600.38. Application is made for compensation in respect of that amount.
11 By committing those offences, you have breached your bail conditions which were imposed on 19 December 2015.
12 Discussions about a plea of guilty occurred on 20 March 2017, which was the first day of the trial. On the next day, you entered pleas of guilty to Charge 4 of criminal damage and Charge 2 of intentionally causing injury.
13 The maximum penalty for intentionally causing injury and criminal damage is ten years’ imprisonment. The maximum penalty for Summary Charge 6 of committing indictable offences whilst on bail is 30 penalty units or three months’ imprisonment.
14 The prosecutor made application for the taking of a forensic sample from you, compensation in the sum of $600.38 cents, and a disposal order in relation to clothing seized from you. The making of those orders was not opposed.
15 A Victim Impact Statement was tendered as Exhibit B. The victim describes his feelings of fear and insecurity following the assault on him. He said because of his fear, he stopped doing usual activities like sitting on the nature strip or going to the local shops. Instead, he relied on his carers to go and buy things for him. The victim says “These small activities were what I had left of my independence and he took that away from me.” He says “The trauma of the whole incident cost me my sense of independence, and as a disabled person, that is the worst thing you could do to me.”
16 You have admitted a prior criminal history, which includes drug and violence offences. You are now aged 26 and your criminal history is significant for one so young.
17 In May 2007, in the Children’s Court, you were placed on probation.
18 In September 2009, you were sentenced to nine months’ detention in a youth training centre for drug-related offending. On that same date, you were sentenced to a concurrent time, nine months’ detention, in respect of dishonesty offending and a charge of criminal damage.
19 In May 2012, you were, without conviction, placed on a community correction order for nine months on two charges of recklessly causing injury.
20 In June 2014, you were sentenced to 60 days’ imprisonment to be followed by a 12 month community correction order for offending, including intentionally damaging property, a number of assault charges including assault with a weapon, and making a threat to kill.
21 It appears that you breached that order, and in July 2015, that order was cancelled and you were sentenced to an aggregate term of imprisonment of 30 days. On the same date, you were sentenced to 90 days’ imprisonment, which had already been served, for offences including recklessly causing injury. That sentence was to be served cumulatively on the 30 days’ sentence.
22 In setting out your personal circumstances and making submissions on your behalf, your counsel referred to your criminal history and said that you had served short jail sentences, and had reoffended shortly after being released. He submitted that the time you have now been in custody is well over a year, and constitutes the longest time that you have spent in gaol. Your counsel submitted that you had made good use of that time and had been put in positions of responsibility, such as being a peer educator and a billet. In the course of your work whilst in gaol, you, somewhat over a month ago, were stabbed in the chest by other persons in custody. Fortunately, you have no lasting effects from that, but are now held in protection.
23 Your counsel said that you had grown up with parents who were heavy drinkers. Very tragically, your older brother and only sibling took his own life when he was 17 and you were 12. After that, your parents drank more heavily and the family disintegrated. You began having behavioural issues at school. You were treated for anxiety and were asked to leave school when you were 16.
24 You went to work in a factory. You were encouraged by a fellow worker to engage in drug trafficking and became a drug user yourself. You had a heroin addiction from your late teens to your early 20s. You ceased illicit drug use after realising the harm it was causing. You have maintained employment between your interactions with the criminal justice system. You were taken back by employers. It appears that you were a good worker. You were three quarters of the way through a fabrication apprenticeship when you were sentenced to a gaol term.
25 Your counsel tendered a report from Mr Jeffrey Cummins, psychologist, dated 12 May 2017, Exhibit 2. Your counsel submitted, on the basis of Mr Cummins’ report, that your repressed feelings about your brother and family have never been addressed in any way. You are not currently in touch with your parents. It is Mr Cummins’ opinion that you presented as being mildly/moderately anxious and mildly depressed. He is also of the opinion that you may have been traumatised prior to being traumatised by your brother’s suicide when you were aged 12. Mr Cummins says:
“In my opinion, it is imperative Mr Hummer participate in a rigorous anger management program and also receive ongoing mental health treatment. As indicated above, he is firm in stating he will not return to illicit drugs use or to abusing benzodiazepines when he is released from custody.”
26 Mr Cummins also says:
“In my opinion, he did not present as having a general anger management problem. In my opinion, he presented as someone who does have significant mental health problems. He is of the opinion his mental health problems lie in the area of him having some form of anxiety disorder. In my opinion, his overall presentation is equally consistent with him having a trauma related diagnosis, an adjustment disorder with mixed anxiety and depressed mood.”
27
Mr Cummins considers the triggering factor for the development of the adjustment disorder was the trauma associated with having two parents who were alcohol dependent, plus the trauma of your brother’s death.
Mr Cummins does seem to be of the view that you do have problems controlling your anger, and suggests a possible trauma related diagnosis. Mr Cummins is clear that you are not psychotic, schizophrenic or paranoid. He says you do not have Antisocial Personality Disorder or an anti-social personality style.
28 Mr Cummins says that, in his opinion, your prognosis is currently guarded. He says you presented as a cooperative interviewee. It appears from what you told Mr Cummins, that you were focused on rehabilitating yourself from a mental health perspective. You have been unmedicated the whole time whilst you were on remand. You have requested mental health treatment whilst in custody. A letter tendered as part of Exhibit 4 says that you received a referral in February this year and have been accepted to participate in a group program, but there is not yet a confirmed starting date for that program. Whilst on remand, you have completed a number of courses, including a peer listening course, a conflict resolution course, and a coping with emotions course.
29 You told Mr Cummins that on the day of your offending, you had to go from West Melbourne to Mooroolbark to report on bail. It was a 40 degree day, and you had recently been taken off prescribed medication. You got off the train, and thought that you had some alcohol but it would not have been significant, so you thought you were sober when you walked past the victim’s address. You were walking towards a house where you used to live, which was about 150 metres from the victim’s unit. You thought perhaps that you had heatstroke and anxiety. You remember thinking about getting a drink from the garden tap or garden hose, and that you were lying almost unconscious on the lawn when the victim came up to you. You say you had seen the victim before, but you did not know anything about him.
30 Mr Cummins is of the view that if you received ongoing mental health treatment, you may be able to develop a sense of trust with a therapist, and be prepared to let go of your hold on “the defence mechanism of repression”.
31
Your letter to the court was tendered as Exhibit 3. In that letter, you described various events in the last several years and the incident of your offending. You say you were suffering one of the worst episodes of anxiety you had ever experienced, and that you decided some alcohol would help calm you. You said you bought a small bottle of bourbon, but that did not help relax you. You had been getting on and off the train. When you got to Croydon, you were walking around. You had been on the train or walking around since about
8.30 am and it was now around 4 pm. You say you had heatstroke and needed some water. As you walked around, you felt yourself with your legs shaking and fell unconscious.
32 On the material before me, I am unable to conclude what the reason was that you were asleep or unconscious on the grass near the victim’s unit. You were clearly not suffering from any loss of consciousness to a significant degree, as you awoke fairly quickly and got up and reacted when the victim approached you. I am unable to conclude that you had what might be described as heatstroke, but am satisfied that the combination of heat, having walked around all day, a degree of tiredness, and the consumption of alcohol, as well as your state of anxiety, contributed to your feeling of a need to lie down. You did the same after you had assaulted the victim. You again walked off and lay down not far away and appeared to be asleep when approached by police officers.
33 In your letter, you describe the assistance you have received in custody, and the work and training that you have been able to engage in. You speak positively about efforts made to rehabilitate you. You say that using the gym has been of great assistance to you, and you plan to continue that when you are released.
34 You acknowledge that the incident of your offending is “appalling”. You describe the offending as unwarranted and an outburst. You wish to apologise to the victim.
35 It appears from what you say in your letter to the court and to your counsel that about two weeks prior to this incident, an outstanding warrant had been executed in respect of a matter which had occurred three years ago, and you were extremely anxious that you would be going back to gaol.
36 In mitigation, your counsel particularly relied on a number of factors, including your plea of guilty, indications of remorse, attempts at rehabilitation in prison, realisation of the need for mental health treatment, relative youth, and good prospects of employment. Your counsel submitted that your lack of mental illness and good physical health after a period without drug taking suggested there were at least guarded prospects of rehabilitation. Your counsel submitted that a period of imprisonment with a non-parole period would be the appropriate sentence, given your past difficulties with completion of community correction orders.
37 The prosecutor in sentencing submissions, referred to aggravating features of your offending, including the victim being elderly and disabled. The offence occurred in daylight and was fairly public on the front lawn. The prosecutor also referred to the injuries sustained by the victim. This offending occurred whilst you were on bail, and you have a relevant prior criminal history for violence and offending which includes criminal damage.
38 The prosecutor submitted that general deterrence, specific deterrence, denunciation, and community protection, all ought to be significant sentencing considerations. The prosecutor said that rehabilitation should still be a sentencing factor, given that you were 25 when you committed this offending, and that there were “glimpses” of rehabilitation. The prosecutor submitted that it was clear that you do need assistance.
39 Shane Hummer, the offending in which you engaged in respect of the victim in this matter was correctly described by you as appalling. I accept that your outburst was unplanned and spontaneous, but it was a shocking thing to do. You responded violently to a perfectly reasonable enquiry by the victim. The victim was clearly vulnerable as being an elderly person and in a wheelchair. Attacking such a vulnerable person is a terrible thing to do. You left the victim with significant injuries. In addition, you have undermined his confidence and independence. That in itself is a very serious consequence. Not content with physically assaulting the victim, you made threatening comments to him.
40 This offending occurred while you were on bail. You have a number of prior court appearances involving violence offending, which appears to have been escalating in seriousness. Your inability to control your own behaviour continued at the police station, where you kicked the wall and caused damage to the wall.
41 You have a relevant subsequent court appearance. In October 2016, you were sentenced to 90 days’ imprisonment. Your counsel advised the charges for which you were sentenced, included charges arising from an incident at the Centrelink office in December 2015. You were frustrated about not being given proper assistance to get employment. You clashed with a Centrelink worker and then hit a security guard. This again, is an example of your inability to control your responses to anger or frustration.
42 There are a number of matters which I have taken into account in mitigation of sentence. You pleaded guilty, albeit at a late stage. You have expressed your remorse and I accept that you are genuinely remorseful.
43 It is to your credit that you have positively engaged with any opportunities for rehabilitation whilst you have been serving a sentence or on remand. That is particularly so given your previous difficulties with authority figures. You have been trusted to hold the position of unit induction billet and peer supporter. You have successfully completed a number of programs in custody. The urine sample results provided indicate that you have been drug free during your time in custody. You have clearly made some efforts to engage in rehabilitation, and have the intention of engaging further with counselling in relation to your mental health on your release. Those are all positive matters.
44 In the light of your offending history and the nature of your offending involving violence, I am of the view that your prospects of rehabilitation remain guarded. Rehabilitation does remain a significant sentencing consideration because of your relative youth.
45 I have also taken into account the 90 days’ imprisonment that was imposed in application of the totality principle. I have also taken into account that you have had to attend court on a number of occasions as a result of the charge on which you were ultimately found not guilty. You have had that charge hanging over you for some time. I have taken into account that you are currently in protection, and have sentenced you on the basis that you will be required to serve any further period of time in protection. That will make imprisonment more difficult for you.
46 I consider that you continue to need support and assistance. However, the objective seriousness of your offending, together with your prior criminal history and guarded prospects of rehabilitation, lead me to the conclusion that a sentence of imprisonment is warranted for the purposes of just punishment, general deterrence, specific deterrence, denunciation and community protection. A community correction order would not meet those sentencing requirements in this case and would not be appropriate in view of the objective seriousness of this offending and in view of your attitude to such an order and past difficulties with community based orders.
47 I note s.16(3C) of the Sentencing Act 1991 applies as the offences were committed whilst you were released on bail. That section requires that sentences imposed are to be served cumulatively unless otherwise directed by the court. In the circumstances of this case, I consider that the sentences ought not be served cumulatively in application of the principles of totality and proportionality.
48 Please stand, Mr Hummer.
49 Shane Hummer, you are sentenced as follows.
50 On Charge 2, on Indictment G10555709.1 of intentionally causing injury, you are convicted and sentenced to two years and four months' imprisonment.
51 On Charge 1, on Indictment G10555709.2 of criminal damage, you are convicted and sentenced to one month imprisonment. In respect of that matter, you are ordered to pay compensation to Victoria Police in the amount of $600.38.
52 In respect of uplifted Summary Charge 6, committing indictable offences whilst on bail, you are convicted and sentenced to three months’ imprisonment.
53 The sentences of imprisonment are to be served concurrently. The total effective sentence is two years and four months' imprisonment. You are required to serve 18 months of that sentence before being eligible for release on parole.
54 I declare that you have served 368 days of this sentence by way of pre-sentence detention, which will be deducted administratively.
55 But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years and four months, with a non-parole period of two years and four months.
56 I am making an order for the taking of a forensic sample from you. I am required to warn you that you must cooperate with the authorities when they come to take the sample. They will come to take the sample by way of a saliva swab from your mouth. I am sure that you will cooperate. If you do not cooperate, they are entitled to use reasonable force and to take a blood sample.
57 I also make the order for disposal of certain items of clothing and as I have said, for the compensation order.
58 Thank you. Please take your seat, Mr Hummer.
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