Director of Public Prosecutions v Hunter

[2024] VCC 1938

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-24-01409

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN HUNTER

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JUDGE:	JUDGE DAWES
WHERE HELD:	Ballarat
DATE OF PLEA HEARING:	18 November 2024
DATE OF SENTENCE:	29 November 2024
CASE MAY BE CITED AS:	DPP v Hunter
MEDIUM NEUTRAL CITATION:	[2024] VCC 1938

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Theft of a motor vehicle – recklessly cause injury – resist an emergency worker on duty – escape form the custody of a police officer – prohibited person in possession of an imitation firearm

Cases Cited:Bugmy v R (2013) 249 CLR 571

Sentence:                  18 months imprisonment

NPP 12 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Hammill	Solicitor for the Office of Public Prosecutions
For the Offender	Mr C. Oldham	Adrian Paull Criminal Lawyers

1Nathan Hunter, on 16 May 2024 you stole a motor vehicle. Later that day when you returned it, a police officer attempted to speak to you about it. You became agitated and injured him, before you briefly escaped. You resisted another officer before you were arrested. You were in possession of an imitation firearm at the time and you have pleaded guilty to the following offences:

Charge No	Charge	Maximum penalty
Charge 1	Theft of motor vehicle	10 years’ imprisonment
Charge 2	Recklessly cause injury	5 years’ imprisonment
Charge 3	Resist an emergency worker on duty	5 years’ imprisonment
Charge 4	Escape from custody of a police officer	5 years’ imprisonment
Charge 5	Prohibited person in possession of an imitation firearm	10 years’ imprisonment or 1,200 penalty units

2The circumstances of your offending have been provided in the Prosecution Opening. It is agreed to be an accurate account of events.  A general summary of the facts is as follows. 

3On 16 May 2024, at approximately 1.22 pm, you rode a bicycle into the driveway of a house in Dimboola, where a Ford Kuga Wagon was parked. The car belonged to elderly friends of your grandmother, who resided in aged care. Their car was at this address as it was being prepared for sale.

4The two residents of the property noticed you ride past their kitchen window. You parked your bike, got into the unlocked car and drove away.  One of the residents went outside, noticed that your bike was parked next to the shed and that the car was missing. He called the police to report the theft. He also contacted your grandmother, and she attended. She identified the bike left behind as being yours. At approximately 6.37 pm, police attended the address to make enquires.

5You returned to the property in the stolen car at approximately 7.04 pm and parked in the yard. Two police officers approached to speak to you. You were in possession of a partially consumed can of alcohol. You were initially cooperative and provided your name and date of birth. You became agitated when the officer tried to issue a verbal caution. You attempted to leave on your bike, despite being told to stay where you were. The officer tried to stop you from leaving, but as soon as he touched you, you resisted and started to throw your weight around. The officer tried to wrestle you, but he fell over your bike and onto the ground. He stood up, grabbed you by your jumper and tried to force you to the ground, in order to arrest you. Your jumper came off and you then forced the officer to the ground. During the scuffle, you admit that you took hold of the officer by his shoulder and leg and lifted him off the ground. You landed on top of him, with an extremely heavy impact. Your actions caused two fractures to the officer’s clavicle and two rib fractures. The officer also suffered a punctured lung, bruises and abrasions.

6The officer attempted to restrain you, and you responded with threatening words. You managed to get away and ran to the front lawn area. The other officer caught up with you and tackled you to the ground. You swung your arms in an attempt to get up. The injured officer then arrived and the two police officers were able to overpower you and place you in handcuffs.

7Your violent conduct was recorded on body worn camera footage and on a CCTV camera. The relevant portions were played in court.

8A search was conducted and a black starter’s pistol, being an imitation firearm, was found in your pocket. It was not used in these events in any way. You were a prohibited person due to being subject to two Family Violence Intervention Orders. You were arrested and taken to the Wimmera Base Hospital for a health assessment, before being cleared to return to the Horsham Police Station. Once in custody, you were deemed unfit for interview and subsequently charged with your offending. You have remained in custody since that time.

9The theft charge relates to your taking of the car as you drove to visit your partner who was in Horsham. You returned the car within several hours. There are no aggravating features for this offence, and I note that it was returned intact. 

10Victim Impact Statements have not been provided to the court and there is no information about the residual effect of your conduct. You concede that your violent offending is serious.  You did not comply with the directions given by police and you sought to flee from them. It appears that you panicked when you were approached by the officer and your response was out of all proportion to any perceived trouble. The injured officer was doing nothing more than his job, which regrettably resulted in your overreaction. Your conduct was impulsive and spontaneous, rather than pre-planned. I accept that your contact with the police was unexpected. The circumstances occurred quickly and developed into a chaotic scene. 

11

The injured police officer was admitted to hospital from 16-20 May 2024.

Dr Schreiber from the Victorian Institute of Forensic Medicine has provided a report, dated 27 August 2024, about the significant injuries that you have caused. He opines that significant force with multiple impacts would have been required to cause the extensive constellation of injuries to the victim’s chest and shoulder. These were likely to be very painful although not immediately life-threatening. It would take several weeks to months for the bone fractures to heal. Long-term pain relief would be required and longer-term impaired functioning of the arm, shoulder and breathing would impact the officer’s work and social life. He outlined future risks including bone fractures not healing, ongoing pain, spontaneous lung collapse and psychological sequalae. It is most fortunate that there is no evidence of these prospects having occurred. 

12A filing hearing was conducted on 17 May 2024. After discussions between the parties, your matter resolved. Your case proceeded as a straight hand-up brief at committal mention on 21 August 2024, with a guilty plea which was entered at a very early stage.

13Your plea of guilty has a significant utilitarian benefit.  You have saved the Court and community the time and expense of running a trial and no witnesses have been required to give evidence.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.  Your plea hearing has concluded within short compass and you will be sentenced approximately six months after this incident occurred. 

14Your plea of guilty demonstrates an acceptance of responsibility for your offending.  Your counsel submits that your guilty plea is also consistent with remorse.  You have not provided a thorough explanation for your offending other than one police officer grabbed you and you landed on him. While a psychologist has described your account as having an 'egocentric quality' there is no dispute that you acknowledge that this incident should not have happened. The prosecution accepts that although your remorse may be muted, the limitations appear to relate to your personality issues. Given the very early plea of guilty, there is no dispute that you have shown remorse and I accept this submission.

15You have admitted your criminal history, being seven prior appearances in the summary jurisdiction, mostly for consolidated pleas of guilty between January 2017 and February 2024.  You have committed acts of violence in the past, including intentionally cause injury, recklessly cause injury and common law assault although you have not previously been convicted of offences of acting violently towards police. You also have prior convictions for property damage, dishonesty and driving matters. The current incident demonstrates an escalation in the seriousness of your offending.

16Your history includes breaches of community correction orders (CCO), parole, bail and family violence intervention orders.  In September 2023, you served one month imprisonment and were then released on a 15-month CCO. Despite the order being therapeutic, you had relapsed into illicit drug use at the time of your current offending. In February 2024, you were released on an undertaking to be of good behaviour for 12 months. Overall, your previous compliance with court orders has been poor. The current incident occurred in breach of both of these orders, which is an aggravating feature. Contravention of these orders is yet to be dealt with.

17I turn now to your personal circumstances.  You were born in August 1985 and are now 39 years of age.  You are the second eldest in a sibship of four. Your parents maintained a strained relationship and separated when you were 21 years of age. They chronically abused alcohol, resulting in neglectful parenting practices.  You witnessed severe domestic violence between your parents, including furniture being thrown through windows and being woken at night by escalating conflict and violence between them.  You experienced ongoing fear of your parents throughout your youth and your childhood was difficult due to their behaviour. You were physically abused, being kicked, punched and belted. You also suffered from their neglect. Between the ages of five and seven years, you suffered from sexual abuse that continued for around 12 months. 

18Your home-life instability resulted in your leaving home at the age of 14 years and after briefly returning at the age of 16, you left again and did not return. Your primary caregivers were your older sister and your paternal grandmother. You have remained in contact with both of them. You resided in a caravan at the back of your grandmother’s house at the time of this incident and propose to return there upon your release. You now identify as a Torres Strait Islander, as you were recently told by your grandmother of your history, which you will follow up. 

19You have not had contact with your mother for many years.  You father now resides in South Africa, and you remain in contact with him by phone. 

20You are not currently in a relationship.  You have two children from separate former relationships. Your 10-year-old son is currently in care in South Australia and you maintain a level of phone contact with him.  You also have a five-year-old daughter, although have no contact with her. 

21Due to your family’s circumstances of frequent relocation, you attended several primary schools and had difficulty with reading, writing, focus and concentration.  Your learning difficulties continued into secondary school and you left partway through Year 10.

22Despite your educational challenges, you were employed for some time.  After leaving school, you worked on night shift at a supermarket and progressed to a management position, where you stayed for four years.  You then secured work as a security guard and nightclub bouncer.  You held that role for two years, until you were assaulted by a group of men.  Since 2008, your predominant employment has been as a truck driver or as a labourer.  You worked as a truck driver at the time of your remand and hope to return to this employment upon your release.  You had ongoing periods of unemployment for up to around six months, due to your drug abuse issues.

23You first started to use dexamphetamine and cannabis in primary school and progressed to the use of alcohol at the age of 14 years.  You engaged in binge drinking and daily consumption of alcohol between the ages of 18 to 39 years.  Your recollection is that all of the males in your family abused alcohol and they would act violently. You had partially consumed a can of Johnny Walker alcohol at the relevant time. I am told that you were also affected by drugs, which may have had some impact on your misconduct.

24You started to use amphetamine at the age of 16 years and progressed to methylamphetamine at 17 years.  You describe that you use this drug to get the 'rush' and that you hid it for 12 years from your family and employers.  Ultimately, the negative effects of this drug use resulted in the loss of your employment.  You have also used steroids and heroin and while you have been temporarily able to cease the use of drugs, you describe that you do not know how to permanently stay off them, as you do not know how to function without drugs.

25I am told that your life was stable in your twenties. You suffered a back injury in around 2011 and have ongoing pain.  You have found it difficult to obtain and maintain treatment. You have self-reported concussions. You believe that your mental health has not been right since 2011 or 2012. You fell into depression at this time and spiralled with your substance abuse, which resulted in inconsistencies in your relationships.

26At the request of your solicitor, you participated in an assessment undertaken by Mr Simon Candlish, consultant psychologist.  In a most helpful and comprehensive report prepared for court, dated 5 November 2024, Mr Candlish conducted a psychological evaluation and risk assessment.  He provided his opinion and conclusions, namely:

·        You have a moderate personality disorder, a stimulant disorder (in early remission), likely ADHD and have suffered depression in the past.  The nature of your personality disorder contributes to impulsivity, poor consequential thinking and poor planning, as well as disregard and problematic attitudes. 

·        Your offending is related to interacting factors, including your impulsivity, lack of consequential thinking, antisocial attitudes, poor perspective taking, chronic agitation and proneness to anger, as well as distorted views regarding violence. 

·        Your lifestyle instability, including homelessness and chronic substance abuse, has contributed to destabilisation and disinhibition.  You are already prone to disinhibition and your substance abuse exacerbates this. You described having drugs the day before this incident and felt the substances would still have been in your system.

·        Your offending is mainly related to the nature of your personality disorder, exacerbated by your drug use.  You currently receive medication for mood regulation and buprenorphine for substance use management.

·        You were not formally assessed in terms of your intellectual functioning, although you present as potentially below average due to your problems with learning as a child and your level of education.

·        You admit that your criminal history contains drug-related and violent offending, which is relevant to the current incident.

·        You have substantial interest in making changes in your life and are motivated for treatment. You acknowledge the need for help to deal with your issues. However, treatment is likely to be challenging in light of your combination of problems.

27The proposed treatment that would assist you has been outlined in detail at the end of the report.

28Your counsel has submitted that your childhood deprivation is a significant factor to be taken into account.  The confluence of your exposure to trauma and neglect has had a considerable impact on you and has been ongoing.  I accept that your traumatic and disadvantaged childhood had a significant impact on your personal development and that it reduces your moral culpability, which is a mitigating factor.  These circumstances appear to have played a part in your lifestyle choices during your offending period.  The relevance of the trauma does not diminish over time, notwithstanding your criminal history.  I accept that the principles of Bugmy v R[1] are enlivened in your case.  The prosecution does not dispute this submission.  The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely.  This is counterbalanced, however, by the principle of community protection, which remains a relevant sentencing consideration in your case. 

[1](2013) 249 CLR 571

29You are considered by Mr Candlish to fall into the high-risk category for violence.  This risk, however, is based on the assumption that you are not subject to further interventions, such as monitoring, supervision and treatment upon your release.  In my view, given your context of criminal history and the circumstances of this incident, I consider your prospects are guarded.  It is conceded by your counsel that you could become institutionalised if you are not able to engage with any treatment and support upon your release.

30While in custody, you are at Karreenga and work in horticulture.  You have undertaken and completed a number of courses, including a positive parenting program, a peace program and educational drug treatment. 

31The offence of recklessly cause injury to an emergency worker is elevated to a Category 1 offence.  The penalty that must be imposed in such a case is a term of imprisonment of at least six months.  Your counsel did not seek to persuade the Court that this order should not be applied in your case.  A term of imprisonment, therefore, is the only appropriate disposition for that charge. 

32The prosecution position is that the offence of recklessly cause injury in these circumstances is a serious example of this type of offending.  The prosecution submits that a term of imprisonment with a non-parole period is the appropriate disposition overall. 

33Your counsel has submitted that the court should impose a community correction order for the other offences, when considering all of your plea material. 

34I am unable to accept your counsel’s submission as to sentence.  You previously had numerous opportunities to benefit from correction orders that supervised your drug rehabilitation, yet you breached those orders and continued to offend.  The current incident occurred when you were subject to a therapeutic CCO.  Given these facts, in the context of your overall level of non-compliance with court orders, I am not persuaded that a further CCO would form an appropriate part of this sentence. 

35Your prospects are in effect in your hands.  I accept that your supervision upon release will be of benefit both to you and the community.  I intend to propose a period on parole that will allow your monitoring and supervision.  Subject to the decision of the Parole Board, I hope you will be able to access parole as soon as it is available to facilitate your rehabilitation.

36I take into account the maximum penalty for these offences and current sentencing practices. The principle of totality is relevant and I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure it is proportionate to your overall criminal conduct, which was one series of transactions.

37Balancing all of these factors as best I can, I sentence you as follows.  I will just go through, Mr Hunter, the sentence on each offence and then the level of cumulation and then the total effective sentence.

CHARGE	PENALTY	CUMULATION
Theft of motor vehicle	4 months imprisonment	+1 month
Recklessly cause injury	12 months’ imprisonment	BASE
Resist an emergency worker on duty	9 months’ imprisonment	+2 month
Escape from custody of a police officer	6 months’ imprisonment	+1 month
Prohibited person in possession of an imitation firearm	9 months’ imprisonment	+2 month
TES	18 months’ imprisonment
NPP	12 months
PSD	197 days
S6AAA	2 years and 2 months with a non-parole period of 17 months
Licence suspension	6 months, backdated to 16 May 2024
Forfeiture & Disposal Orders	Made by consent

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