Director of Public Prosecutions v Hurst

[2018] VCC 148

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01086

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS HURST

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2018
DATE OF SENTENCE:	21 February 2018
CASE MAY BE CITED AS:	DPP v Hurst
MEDIUM NEUTRAL CITATION:	[2018] VCC 148

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Stary Norton Halphen

HIS HONOUR: 

1Travis Byron Hurst, you have pleaded guilty to one charge of causing injury intentionally, contrary to s.18 of the Crimes Act 1958.  The maximum penalty for that offence is ten years' imprisonment.

2You have also pleaded guilty to one charge of aggravated burglary, contrary to s.77(1) of the Crimes Act 1958.  The maximum penalty for that offence is 25 years' imprisonment.

3By operation of the relevant provisions of the Criminal Procedure Act 2009, you have also pleaded guilty to two related summary offences, of committing an indictable offence whilst on bail, contrary to s.30B of the Bail Act1977.  The maximum penalty for that offence is a fine of 30 penalty units or three months' imprisonment.

4You pleaded guilty following committal proceedings being conducted in this case, and the matter being listed for trial in this court, following discussions between your legal representatives and the prosecution.  Whilst your plea cannot be described as an early plea of guilty, it has nevertheless spared the victim of your offending the trauma of giving evidence, both on a Basha enquiry which was to be conducted, and if the matter proceeded, in front of a jury.  It has also spared the community the cost of a criminal trial, and I have taken your plea of guilty into account in your favour, in mitigation of sentence.

5A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows:

6On 22 March 2016 you visited an associate's premises in Maidstone.  You drove there in your vehicle at approximately 7 pm.  You had known that associate, who became the victim of your offending, for approximately five years, and it can be assumed that the relationship that the two of you shared was characterised by occasions when you became agitated and angry with one another, no doubt fuelled by alcohol and drug use from time to time.

7After entering the premises, and for reasons which are now unclear, a dispute arose between the two of you.  The victim of your offending armed himself with a hockey stick and took swings at you inside the premises.  CCTV footage, which I have observed during the course of this hearing, reveals you leaving the premises, being pursued by the victim.

8Ultimately, the two of you found yourselves adjacent to a vehicle in a car parking area adjacent to the victim's unit.  You disarmed him and took possession of the hockey stick yourself, and then struck the victim on a number of occasions, thereby committing Charge 1 on the Indictment before the court.  You then chased the victim back into his unit, and in doing so committed the charge of aggravated burglary.

9That entire episode occupied less than 30 seconds, and it is clear that Charge 1 on the Indictment is made out because you went further than what was reasonable to defend yourself against the victim, who had initially armed himself and confronted you.

10I accept that it is proper to describe the two charges before the court as falling at the lower end of the scale of seriousness for such offences.  It is also appropriate to describe the two offences as being characterised by a single transaction, effectively, that occupied a very short period of time.

11At the premises, it became apparent to you that the victim had suffered some injuries as a result of you striking him, and you telephoned an ambulance and provided a false explanation as to how the victim became injured.  He was conveyed to the Footscray Hospital, where he was observed to have suffered fractures to his ribs, a suspected fracture of his fifth metacarpal, a laceration to his scalp, and a collapsed lung.  I have received in evidence photos of his injuries, and it is clear that those photos depict what may be described as injuries of some significance.

12On 5 April 2016 you were interviewed by investigating police, and explained to them what had happened inside the premises, and that you had struck the victim in self defence.

13The sentencing principles applicable to offences of this nature are well established, and the sentence I impose must be calculated to deter other persons from offending in this manner.  Crimes of violence are all too prevalent in our community, and your offending must be denounced.  You also must be punished for your offending.

14You have admitted a significant criminal history, characterised by numerous offences of dishonesty, drug use, offences of violence, and traffic offences.  It is also clear, therefore that the sentence that I impose upon you must also be calculated to deter you from offending in this way in the future.

15I now turn to your personal circumstances.  You were born on 22 July 1980 in Victoria, and you are now aged 37.  I have received in evidence a psychological report of Mr Bernard Healy, dated 21 June 2009, and a further psychological report of Mr John Karamanos dated 5 November 2013.  Each of the reports set out your background and psychological history.  It is clear from the contents of them, together with submissions made on your behalf by your counsel, that your background may be described as one of severe dislocation and disadvantage.

16You are of Indigenous heritage.  Your father is a Torres Strait Islander man, who tragically subjected you to severe abuse as a young child.  You experienced dislocation by reason of being placed in state care, at which time you were both physically and sexually abused.

17Your education was also significantly disrupted by reason of your disadvantaged background.  It is plain that your polysubstance abuse disorder and significant mental health issues, including a diagnosis of schizophrenia and/or bipolar disorder, can be traced directly to your abuse as a young child.  You began, for example, smoking cannabis at the age of ten, and abusing alcohol at the age of 12.

18It is somewhat remarkable that it does not appear that you have an acquired brain injury by reason of your alcohol and drug abuse, and as I observed during the course of the plea hearing, you appear to be capable of insight and a reasoned approach to your offending past and its causes.

19Despite the fact that you have had such a disadvantaged background, and it is plain that you do have mental health issues and polysubstance abuse disorder, I am prepared to accept that your prospects for rehabilitation, whilst they must be approached with caution, can properly be described as reasonable.

20Your counsel provided to me a chronology setting out the circumstances and timeline that leads you to this court.  You have recently engaged with the CISP program, managed in the Magistrates' Court at Melbourne, and you are also being supervised by Magistrate Hardy in what is called the ARC list.  Both of these programs are designed to support your ongoing and future rehabilitation, and for my part I have no doubt that it is entirely appropriate that your future rehabilitation be managed in that way by magistrates who are expert in that.

21You are to appear before Magistrate Hardy on 28 February 2018 in relation to charges that were committed following the commission of these offences.  Magistrate Hardy will plan at that hearing, your future rehabilitation, and I should note that you are remanded in custody on those charges, and therefore you will not be released from prison by him unless he is satisfied that it is appropriate to do so, and the necessary supports and programs are in place in order to support your rehabilitation. In my opinion it is appropriate for me to take those matters into account in determining what is the appropriate, proportionate penalty for me to impose in this case.

22Your counsel referred me to a decision of the Court of Appeal of the DPP v Meyers [2014] VSCA 314, in which their Honours set out factors to be taken into account in determining the seriousness of a particular instance of aggravated burglary. As I have already observed, and fortified by the reasoning in that case, I am of the clear view that this instance of aggravated burglary falls at the very low end of the scale of seriousness, for the reasons I have already referred to.

23The victim of your offending has not provided a Victim Impact Statement to the court, and it is important that I record that I have no doubt that your offending has had a traumatic effect upon him.  He too is a man who has a history of disadvantage, polysubstance abuse disorder, periods of imprisonment, and mental illness.  Even though it would appear that he instigated the offence or offending, you nevertheless went way too far in your response, and committed a serious assault upon him.

24I do, however, accept that your plea of guilty is evidence of remorse for your offending, and you are no doubt, having regard to the insight you have into your own offending behaviour and its causes, remorseful for what you did to your friend.  You should never have attacked him in the way that you did.  It was in my view completely unnecessary for you to go beyond taking the hockey stick from him.

25Your counsel submitted that the appropriate outcome in this case would be for me to impose a term of imprisonment upon you, which would provide for your possible future release from custody in the near future.  You have already served 263 days, not including today, by way of pre-sentence detention, and therefore if I impose upon you a term of imprisonment of nine months, when you appear before Magistrate Hardy, His Honour will be in the position to determine, free of any disposition that I impose, how best to manage your future, in order to ensure that the community is best protected, and your rehabilitation is supported.

26In my opinion, whilst the two charges that you have pleaded guilty to, together with the related summary offences, are serious in nature, it is appropriate for me to make an order in the terms sought by your counsel.  Accordingly in all the circumstances of this case, and because I am also satisfied that it is appropriate for me to impose an aggregate sentence, having regard to the close relationship between the charges on the indictment and the related summary offence, that I propose to impose a sentence in the following terms.

27In the result, the sentence of the court is as follows:

28In relation to the charge of intentionally causing serious injury and in relation to the charge of aggravated burglary, you are convicted and sentenced to an aggregate term of imprisonment of nine months.

29I declare that you have served 263 days by way of pre-sentence detention.

30But for your plea of guilty, I would have imposed a total effective term of imprisonment of 15 months, and ordered that you serve nine months before becoming eligible for release on parole.

31In relation to the two charges of committing an indictable offence whilst on bail, you are convicted and sentenced to an aggregate term of imprisonment of 14 days, and I direct that that sentence be served concurrently with the sentence imposed on Charges 1 and 2 on the indictment.

32But for your plea of guilty in relation to those charges, I would have sentenced you to a total effective term of imprisonment of 28 days.

33I have made the disposal orders sought on behalf of the prosecution.  Are there any further orders required?

34MS BOLTON:  No, they were the only orders required, Your Honour.

35HIS HONOUR:  Thank you.

36MS BOLTON:  And if I might enquire whether your reasons for decision or reason for sentence would also be provided to Magistrate Hardy?

37HIS HONOUR:  Yes.

38MS BOLTON:  I think that might be better.

39HIS HONOUR:  What I will do is have them settled.  When they come back, they will be back in the next few days.  I will revise them and I will email them to Mr Kenny's lawyers.  My associate can do that, and you can give them to Mr Hardy.

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