Director of Public Prosecutions v Hunt (a pseudonym)
[2021] VCC 239
•10 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN HUNT (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2021 | |
DATE OF SENTENCE: | 10 March 2021 | |
CASE MAY BE CITED AS: | DPP v Hunt (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 239 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW --- SENTENCE
Catchwords: Family Violence --- Assault --- Recklessly Cause Injury --- Criminal Damage --- Persistent Breach Intervention Order --- Concurrent Sentence --- Totality --- Delay --- Cumulation
Legislation Cited:
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571 --- R v Verdins (2007) 16 VR 240
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
| For the Offender | Ms G. Calgaro | Gallant Law |
HER HONOUR:
Summary
1 Lachlan Hunt[1] you have pleaded guilty to five charges relating to an incident of family violence, inflicted on your former partner and her friend, when you attended your former partner’s home in breach of a family violence intervention order. You also admit having persistently breached that order over a period of approximately three weeks, in a period very shortly before the substantive offending here.
[1] Pseudonym used
2 You are now 38 years old. The majority of this offending occurred on Saturday 4 February 2017, when you were 34.
Background and Chronology
3 You and the victim, Ms Kristen Stevens,[2] had been in a relationship over eight or nine years and you have two young children together. Ms Stevens has two children from previous relationships. You and she had resided together in Horsham with the four children since about 2010.
[2] Pseudonym used
4 The Department of Health and Human Services (DHHS) had been involved repeatedly between 2010 and 2016. Twelve incidents of family violence had apparently resulted in police attending. Eight of those episodes involved you and Ms Stevens. Your relationship was apparently marred by mutual methamphetamine use.
5 In October 2015, police took out an intervention order on behalf of Ms Stevens and the children. That order did not prevent you being at the house.
6 In May 2016, a further incident of violence by you towards her, resulted in emergency accommodation being arranged for Ms Stevens and the children. At that stage, they were aged seven, five, one and 23 days old.
7 Thereafter, DHHS instituted a safety plan, essentially involving Ms Stevens’s 22 year old brother and his girlfriend living with you. It seems ongoing ice use occurred not just by you, but by the other three adults at the premises.
8 In June 2016, your six week old daughter was hospitalised with serious injuries, allegedly inflicted by you, by way of shaking her. In August 2016, you were interviewed by police in relation to that matter. You denied inflicting any injury on that child. You were charged however with intentionally causing serious injury to her. I will return to this in due course, but for present purposes, it is part of the chronology of events leading to the offending before me. I do not take it into account as any prior conviction.
9 On 9 August 2016, you were dealt with at Horsham Magistrates Court for contravening the 2015 family violence intervention order, persistently contravening it, assault with a weapon and criminal damage. Those matters, as I outlined, occurred in May 2016 and had as their victim Ms Stevens. You were sentenced to an aggregate term of six months imprisonment with 58 days reckoned as having already been served.
10 On 6 September 2016, Ms Stevens obtained a final family violence intervention order against you, preventing you from attending at her address and/or contacting her. That order was served on you, and its terms explained to you on 8 September 2016.
11 On my calculation, you would have been released from the 9 August 2016 matter in approximately December 2016. That is, very shortly prior to the events before me. From around the time of your release, until the substantive offending before me, you repeatedly attended at Ms Stevens’s premises, despite the existence of the intervention order, and you repeatedly contacted her.
Charges 1 – 5: 4 February 2017 Offending
12 On 4 February 2017, at about 11.30 pm, Ms Stevens was at her address with her friend Susan Woods.[3] They were the only persons at the residence.
[3] Pseudonym used.
13 You attended there in an alcohol affected state. You knocked on the door, but Ms Stevens told you to leave as you were not permitted to be at the address.
14 Despite her request, you entered, picking up a golf club which had been left near the front door. You commenced swinging the golf club, striking and breaking numerous items, including a glass table and a ceramic plate. That is part of the basis of Charge 1 – damaging property.
15 You then walked towards Ms Stevens and Ms Woods, swinging the golf club in their direction. That behaviour forms the basis of the common law assault Charges 2 and 3 against Ms Stevens and Ms Woods respectively.
16
As you approached them in that threatening manner, you also yelled at
Ms Stevens and Ms Woods: 'I am going to kill you, you're a dirty rotten slut, you two are not getting out of here alive'. Those facts are uncharged acts.
Ms Stevens and Ms Woods were understandably terrified that you would carry out those threats.
17 Ms Woods stood in front of Ms Stevens, trying to protect her from you. As you advanced on them, Ms Woods pushed you, attempting to push you back away from them and out of the house.
18 Ms Stevens was attempting to call the police from her mobile phone. You grabbed it out of her hand and took it from her.
19 You then located the CCTV hard drive in the lounge room, grabbing it and ripping it and its cords from the wall before slamming the unit into the floor, in order to damage the hard-drive and prevent the footage contained on it being used against you.
20 You then turned and walked towards the rear of the house down a passageway in the direction of the kitchen. Ms Stevens and Ms Woods took the opportunity to try and leave the house. As Ms Woods grabbed her bag, Ms Stevens went to the front door opening it. You ran towards her, shoving the door shut and jamming her right leg into the doorframe, causing immediate and extreme pain to her upper right leg. That left red marks and bruising to both sides of her leg. That action is the basis of Charge 4 - recklessly causing injury.
21 Ms Woods managed to push past you, helping Ms Stevens from the house where they ran off together to a nearby street, to seek assistance from Ms Stevens's brother, who lived close by.
22 Undeterred, you remained at the home, wreaking havoc on her house. You struck windows causing them to shatter. You threw eggs at the walls in the lounge room, leaving stains and marks on the painted plaster walls. You smashed the camera for the CCTV with a golf club. Those events are also part of Charge 1 – damaging property.
23 You then proceeded to take a number of Ms Stevens’s belongings from the house, including her mobile phone, wallet and a set of house keys, items of great practical importance to her. That theft is the basis of Charge 5. You then drove away in your unregistered VT Holden Commodore Sedan.
24 At about midnight you arrived at your sister’s home and made numerous admissions to her about what you had just done. Forty minutes later, you left her home, intending to go back to Ms Stevens’s address to get some more items.
25 You rode off on a bicycle, returning about an hour later with Ms Stevens’s CCTV hard-drive with the cords cut. That is also part of Charge 5. You threw the hard-drive in your sister's kitchen bin. You again took off on the bike, before returning at about 2:40 am ‘freaking out’ about the fact that police were at the front of Ms Stevens’s home. Clearly you had returned there.
Persistent breach of Family Violence Intervention Order
26 Examination of the CCTV footage which was able to be viewed, revealed that you had been at Ms Stevens's address on numerous occasions in the previous month.
27 Police also examined your call charge records which revealed that since the serving of the final family violence intervention order, you had made contact with Ms Stevens on twenty separate occasions, in contravention of the final family violence intervention order. Those matters constitute Charge 6 – persistent contravention of that order.
Prosecution position
28 There is no doubt that this offending is serious and warrants a term of immediate imprisonment. You had no right to attend at your former partner’s residence. That should have been clear to you, given the recent history between you and most importantly, given the existence of the family violence intervention order. Your flagrant disregard for that order, despite having recently been released from custody for the same type of offending against the same victim, makes this a serious example of this type of offending. Your moral culpability for it is very high.
29 Given the prevalence of family violence in the community and your own personal history of committing family violence, both general and specific deterrence must be the at the forefront of my sentencing considerations. That is, the sentence I impose must deter you, and must deter others who disregard such orders. It must send a message that breaching a family violence intervention order, in particular breaching it with violence, will result in a custodial sentence. My sentence must also express the denunciation of the community for such behaviour and must aim to protect the community, including the victim of this offending.
30 In assessing the objective gravity of this particular offence, in my view it is a serious example of such a breach for the following reasons, in addition to the recent history I have just outlined:
1. You attended in a drunken state.
2. It was late at night.
3. The offending occurred in the victim’s home where she was entitled to feel safe
4. Almost immediately on entry, you armed yourself against two women. I accept you did not attend armed and that that act was spontaneous, but nonetheless once you picked up the golf club, you then used it in a threatening way and to damage property. I accept that the assaults are constituted by swinging the golf club towards the two women, and not hitting them with it.
5. You made vile threats towards both women. You threatened Ms Woods also when she tried to protect her friend from you, no doubt aware of your history towards her friend.
6. You stopped the victim being able to call the police by taking her phone.
7. You prevented her leaving, catching her leg in the door. I do accept that the recklessly cause injury here was a spontaneous event and that the injury caused was at the lower end of injuries.
8. You smashed belongings of Ms Stevens and you stole personal belongings.
9. You returned twice, entering the premises the first time and removing the CCTV in an effort to prevent detection.
10. You remained at the house after she had left, further damaging the belongings and also the actual house itself, being the windows and the plaster. Ms Stevens was no doubt forced to return to her home in its damaged state, which must have added to her distress. Time and money must have been involved in repairing the damage that you caused.
31 The fact these events occurred when a family violence intervention order was in place makes this very serious. Although there is no victim impact statement before me from either woman, I accept that Ms Stevens in particular, must have felt very vulnerable in the context of this offending and in the context of your recent history.
32 Specific deterrence is important in your case, not just for reasons demonstrated by the recent chronology, but also for your past history of violent offending.
33 You have a number of priors for recklessly causing injury and recklessly causing serious injury offences, as well as assault, criminal damage, weapons offences, arson, and now three appearances related to breaching family violence intervention orders.
34 You have received the full gamut of sentencing dispositions, including community correction orders and an intensive correction order, aimed at your rehabilitation, as well as suspended sentences. All of those orders were breached, demonstrating little regard for court orders. Terms of imprisonment, including in 2005, a term of four years with two and a half year non-parole period for arson, when you lit a fire out of anger, destroying the home of 75 year old man you had been working for.
35 I note, as a 20 year old, on your prior criminal record, the sentencing court recorded the need for anger management. It is clear that you have a serious problem with anger and a lack of control. You must receive some directed treatment towards those issues while you are in custody.
Personal History
36 I take into account the contents of the two reports that have been provided to me. One from psychiatrist Dr Jaydeep Sarkar and one from forensic psychologist, Karly Doyle.
37 Your history is as follows. You were born in Melbourne, after your parents had a casual encounter. You have never met your biological father and you know little about him, other than you have been told he is Aboriginal and therefore you are Aboriginal. You have not had much connection to your Aboriginal history, though you have told me today that you are starting to explore Koori art in custody.
38 Your mother re-partnered when you were two years of age and you were raised by her and your step-father. They went on to have three more children. You have a positive relationship with your mother and you say you received love and care from her and other relatives on her side of the family.
39 She was involved in caring for the family and later, working in aged care. Your mother remained your main support and you are in regular communication with her. Unfortunately, you have had difficulties sorting out your phone list while in custody and you have been unable to communicate with her by phone, which is clearly unsatisfactory. You have been communicating however in writing. Hopefully that situation can be sorted out immediately.
40 Your childhood however was marred by emotional and physical abuse at the hands of your step-father. You describe being subjected to almost daily physical beatings and that your step-father would use any available items to abuse you, including garden hoses, electrical cords and the like. You say you regularly presented at school with bruising to your body, however, you did not recall any protective services involvement. You describe your step-father as particularly cruel and violent and that when you were eight or nine years old, he killed your four guinea pigs, by snapping their necks in front of you.
41 On occasion, your step-father would also attempt to target your younger siblings and mother, however, you would try to intervene. You report standing up against your step father in anger from about age 14.
42 You started smoking cannabis in your teen years, in attempts to regulate your anger. You felt substantial hatred and anger towards your step-father and you say you used drugs to manage and control your emotions. As time progressed, you moved onto amphetamine, methamphetamine and at one stage heroin use.
43 You say you have experienced hallucinations and visions from about age 12 throughout the years and until recent periods of incarceration. You report a history of suicidal ideation commencing at about age 18. At that time, you planned to hang yourself, but your then-partner’s father intervened. At around 17 or 18 years of age, you say you engaged in self-harming behaviour, making cuts to your forearms. You last report experiencing suicidal ideation in around 2015.
44 Your counsel initially did not submit the Bugmy[4] principles were enlivened by your history. At my invitation, however, she did submit it was open to me to find they do apply. In my view, the unchallenged account of your formative years which is before me, do enliven the principles of Bugmy. To my mind, you suffered a degree of deprivation and abuse, which set you on a path of anger, drug use and problematic behaviours. I take that into account. It does not excuse your behaviour, but it does give some explanation for the pattern of your life, in particular, your pattern of violence and of drug use. The degree to which those matters reduce any culpability can however, only be modest, given the seriousness of your offending and of your history, with repeated opportunities to rehabilitate yourself through court imposed dispositions.
[4] Bugmy v The Queen [2013] HCA 37; 249 CLR 571
45 You report at one stage being diagnosed with schizophrenia in Fulham Prison in 2005, although the more recent forensicare assessment by Dr Sarkar in 2020, determines you do not meet criteria for that diagnosis, nor for bipolar disorder. You are currently medicated however on Seroquel (antipsychotic), Methadone (opiate substitute) and Pristiq (antidepressant) and you report yourself to be stable. That is a positive and you should continue compliance with any medication regime imposed on you both in and out of custody.
46 It would not be possible to disentangle the effects of your now chronic drug use and your underlying mental health issues. As such, it was not argued that principles of Verdins[5] apply. Dr Sarkar in 2020 did determine that you meet criteria for Borderline Personality Disorder, based on his clinical and instrument based assessment of you. He reports that you also appear to have developed an anxiety disorder whilst incarcerated and that you are experiencing a range of physically distressing symptoms, such as panic attacks. I take that into account as part of the overall picture. In particular, I take into account that your time in custody, should that condition continue, will be challenging.
[5] R v Verdins [2007] VSCA 102; 16 VR 240; 169 A Crim R 581
Time in Custody
47 It seems to me you are making the most of your time in custody, undertaking a number of courses to improve both your emotional regulation and to improve your opportunities for employment. They include mindfulness courses and other courses aimed at emotional regulation. They also include a Warehouse Course, which will assist you to obtain your forklift licence, your excavator licence, a licence to use backhoe and skid steers and also to achieve your white card. You tell me that is a 12 week course which you attend weekly. It is conducted by Ballarat University and has only recently commenced. It appears to me that is a real positive that you are engaging in that course. You reported this is not something that you have done before.
48 You also indicated that when you were on remand at the MRC, you did do an eight to ten week course on anger management or similar during that period of remand. That is of course most important and it is a positive that you engaged in that way.
49 You report now being employed at Hopkins correctional facility in the metal fabrication area. That is also a positive and it is in your favour. It is positive overall in making those efforts to improve yourself. You must continue to do so to enhance your opportunity to remain offence free when you are released.
50 You will be released to parole which should provide supports to you.
Prospects of Rehabilitation
51 Your prospects of rehabilitation are very guarded, but it is not without hope as the psychological report of Doyle, in particular suggests. There are a range of recommendations in the reports, aimed at improving your opportunity to achieve an offence free life. Obviously drug use is significant barrier to you and if you relapse into drug use, then the likelihood is you will be at real risk of reoffending and of going back into custody. Hopefully you can do some treatment in custody aimed at those issues as well.
52 You do have the support of your mother, and you do have a long history of employment. You have held positions in sheep shearing, retail, garden maintenance, warehousing and labouring. You were last employed, before entering custody in February 2017, when you were working in a sheep shearing shed.
53 I take those matters into account in your favour.
Plea of Guilty and Delay
54 I take into account your plea of guilty to these matters. This matter has had a very sorry history of delay, including the fact that it has twice been listed for trial in circuit courts and has unfortunately not been reached. It seems to have also been delayed by the matter, which was before Judge Taft, and related to the June 2016 events in relation to your daughter.
55 More recently, however, the matter was listed in March 2020, at a time when all trial matters in this court were adjourned due to the Covid pandemic. Those delays therefore were not of your doing.
56 Your plea of guilty is very important. It has a utilitarian benefit of avoiding the time and cost to the community of a trial.
57 In particular, in matters of family violence, your plea avoids the victim reliving the traumatic event, from a period of her life which must have been very difficult. Even though it was not argued that it reflects remorse, the fact that you saved the victim the added stress of a trial, in my view, entitles you to a real discount.
58 Your plea was also entered at a time of the Covid pandemic, when all trials in this court were suspended and which has resulted in significant delay of trial matters. I take those matters into account and you are entitled to a further discount, specifically due to that matter.
Totality
59 I must take into account totality. In March 2020, after a trial regarding the incident from June 2016 regarding your daughter, you were found guilty of intentionally causing serious injury by way of shaking her. She suffered catastrophic injuries to her brain and suffered physical dysfunction.
60 You were sentenced by His Honour Judge Taft to 14 years imprisonment, with an 11 year non-parole period. You maintain your denial of that offending and you have lodged an application for leave to appeal out of time. I note that is due to be heard not until late 2021 or early 2022.
61 Obviously any term of imprisonment that I impose will have a relationship to the period of imprisonment which you are currently undergoing and I will return to that in a moment.
62
This event before me, however, warrants separate punishment. It is a different, though related victim. It is distinct offending and in circumstances where
Ms Stevens in particular, was a repeated victim.
Cumulation
63 However, taking into account the issue of totality, taking into account your pleas of guilty and the worth of that plea, in particular to the victim and in the Covid period, as I have outlined, I have come to the view that modest cumulation only is warranted.
64 I have ultimately formed a view that I should increase the head sentence and the non-parole period, but only modestly on both. It will be modest because the events occurred in a timeframe close to those events for which you were sentenced by Judge Taft. It is clearly a period of your life, where your behaviour was out of control, as described by Dr Sarkar who says:
'Your personality features of impulsivity, emotional dysregulation, interpersonal chaos, anger control and poor distress tolerance in the context of the descent of your relationship into chaos, as well as your fears of abandonment, complicated by your narcissistic feelings of entitlement and an increasing desire to exhibit control, are factors which appear to have contributed to that period of your life and your offending'.
65 Although that report was written in relation to the other offending, that descriptor of the period is still apt.
66 A 14 year term of imprisonment is a significant one. I do believe, as I have indicated, that some increase of that head sentence and the non-parole period is appropriate, though only modest.
67 I discussed with counsel the way to achieve that aim. In particular, given you have been credited with emergency management days, in light of the COVID-19 pandemic, Counsel jointly submitted that when I impose a single non-parole period in accordance with s.14, I should start that period from today. Your earliest release date is 25 February 2028, which is seven years and 13 days from today.
Sentence
68 In all the circumstances Mr Hunt, the sentences that I impose are as follows.
69 On Charge 1 of criminal damage, you are convicted and sentenced to 12 months imprisonment. That is the base sentence.
70 On Charge 2 of common assault of Ms Stevens, you are convicted and sentenced to 10 months imprisonment. I direct that four months of that term be served cumulatively upon the base sentence.
71
On Charge 3 of common assault in relation to
Ms Woods, you are convicted and sentenced to six months imprisonment. I direct that two months of that term be served cumulatively upon the base sentence.
72 On Charge 4 of causing injury recklessly to Ms Stevens, you are convicted and sentenced to 10 months imprisonment. I direct that six months of that term be served cumulatively.
73 On Charge 5 of theft, you are convicted and sentenced to nine months imprisonment and I direct that two months of that term be served cumulatively.
74 On Charge 6 of persistently breaching a family violence intervention order, you are convicted and sentenced to 12 months imprisonment. I direct that three months of that term of imprisonment be served cumulatively upon the base sentence.
75 The total effective sentence Mr Hunt, for that group of offences is two years and five months imprisonment. I direct that four months of that term be served cumulatively on the sentence you are undergoing. The remainder of that sentence is to be concurrent with the head sentence you are undergoing.
76 Pursuant to s.14, I set a new single non-parole period of seven years and six months imprisonment. That non-parole period commences today. That will still mean that you will be able to be under supervision of the Parole Board, assuming you are released at that earliest opportunity, for a period of two years and 10 months, which reflects roughly the period determined by His Honour Judge Taft as appropriate.
77 What that means Mr Hunt, is that I have added six months and 13 days to the non-parole period of 11 years.
78 I note the treatment considerations in the report of Dr Sarkar and Ms Doyle and I commend those to Corrections for your treatment while in custody and while you are on parole.
79 In line with s.6AAA, I am required to indicate to you what I would have imposed, if you had not pleaded guilty to these matters. But for your pleas of guilty, the total sentence I would have imposed would have been one of five years imprisonment and I would have added two years and four months to your non-parole period.
80 I propose to make the disposal order in the amended form which was sought. Are there any issues to raise counsel?
81 MR COOKSON: Only one, Your Honour. I believe that Your Honour might have indicated that the non-parole will end in seven years and 13 days. I believe Your Honour may have meant to say 13 days less than seven years.
82 HER HONOUR: I think you're right, yes. Yes, thank you. So the non - so the - yes, it means that added is six months to the non-parole period, less - well less 13 days. Yes, very well. All right, Ms Calgaro, any issues?
83 MS CALGARO: Otherwise no issues, Your Honour.
84 HER HONOUR: All right, thank you very much. Thank you counsel, to both of you for your assistance.
85 Mr Hunt, I will leave you on the line with Ms Calgaro so that you can just raise with her any questions that you have and I repeat what I have said to you, it is positive that you are making the most of the time that you are in custody and I encourage you to keep doing that. That will give you the best opportunity to get parole, but more importantly, the best opportunity to come out of this sentence and to really make something of your life and be able to contribute. You are obviously someone with a working record. Drug use has dogged you. You have really got to work on that, but in particular, any courses that are available to you about emotional regulation and anger management, will be in my mind be a real positive.
86 OFFENDER: Okay thanks a lot, Your Honour. Um, I just want to say as well that um the story that you have been given isn't entirely true, but I do take what you've said into account and I will try my best to - to rectify it and make a big change.
87 HER HONOUR: Good for you.
88 OFFENDER: Cheers.
89 HER HONOUR: Thank you very much. All right, I'll leave then. Thank you.
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