Director of Public Prosecutions v Hutchins

[2022] VCC 1678

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

AT Melbourne

CRIMINAL DIVISION

CR 21-02256

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE HUTCHINS

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2022, 21 September 2022
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Hutchins
MEDIUM NEUTRAL CITATION:	[2022] VCC 1678

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:   Sentence – Recklessly cause serious injury – Driving motor vehicle at pedestrian – Guilty plea after sentence indication –Prospects for rehabilitation – Complex childhood trauma – Relevant criminal history

Cases cited:  Harrison v The Queen [2015] VSCA 349

Sentence:Six years’ imprisonment, non-parole period of two years and nine months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Office of Public Prosecutions
For the Accused	Ms L. McPhie	Ann Valos Criminal Lawyers

HER HONOUR:

1Brodie Hutchins, on 10 March 2021, you deliberately drove into a man and left him on the ground writhing and moaning in pain from his injuries as you drove off.  It was not until two months later that you were arrested, and you were then charged with intentionally cause serious injury and related offences. 

2You initially denied involvement and were committed for trial to this court after a contested committal where you put identity in issue and sought to cast the victim as the aggressor.

3Following a case conference and then a sentence indication hearing before me earlier this year, you have pleaded guilty to and come to be sentenced today on one charge of recklessly cause serious injury and four related summary offences, being failing to stop, driving whilst disqualified, committing an indictable offence whilst on bail, and failing to appear on bail.

4

The factual basis  upon which you entered your guilty plea and on which I sentence you is this. On that date in March 2021, you were driving along

Elizabeth Street in Melbourne.  You had some form, it would appear, of verbal altercation with a man riding an e-scooter along the pavement or along

Elizabeth Street.  You first came across each other at the intersection of

Elizabeth and Latrobe Streets and there was some sort of verbal altercation.  He continued to ride his scooter along the footpath on Elizabeth Street whilst you drove on when the lights changed along the road behind him. 

5At some stage, the scooter rider, David Perham dropped his scooter onto the footpath, walked in front of a parked car and stood at the outer edge of that parked car on the roadway looking down towards where your car was approaching.  It is clear that you saw him, and you turned your car deliberately towards him. You turned off your course straight along the roadway and struck him as he stood at the front of that car with the left front side of your car.  The speed with which you were travelling wasn't excessive for travelling in traffic along Elizabeth Street, but the speed and the force with which you turned and veered toward him, striking him and the car that he was standing beside, and the momentum that propelled you forward and dislodged a letter box on the roadway is graphically shown in CCTV footage of the collision. 

6You crushed Mr Perham’s right ankle with your car and he fell to the ground.  You reversed and drove off without stopping to offer any assistance or exchange details. That gave rise to the related summary offence of failing to stop and render assistance.

7You were ultimately identified, but not for two months, and when first contacted you denied being the driver of the vehicle. 

8Later enquiries revealed that at the time of the driving you were disqualified and your learner's permit had been suspended only one month earlier for a period of six months because of the number of demerit points that you had amassed.  You were on bail for other offences at the time of the offending and failed to appear at court two or three weeks after the offending. This gives rise to the charge of commit an indictable offence whilst on bail. 

9Mr Perham suffered significant injuries. When immediately admitted to hospital, there were open wounds over his right ankle and the skin loss was so extensive his ankle joint was exposed.  He has had since then, or up until the time of the committal, seven separate surgeries, and there was one further surgery expected post committal.  The post immediate injury trajectory has been terrible for him.  The wounds themselves broke down, became infected and needed repair. 

10He needed significant reconstructive plastic surgery to allow skin to regrow and to be placed over and grafted over the exposed bone, and he needed to be on long-term intensive often intravenous antibiotics because of the recurrent infections.  He had prolonged stays in hospital for each of the surgeries and for complications following the initial injury, and he was immobile or significantly impaired in his mobility for a considerable time.  He had to wear a moonboot for a considerable time, and he is unlikely to ever fully recover from the injuries.  It was clear from the evidence he gave at the committal, that the injuries that he suffered, and the consequences were not only physical, long-term and impaired his ordinary activities of daily life as a person, as a worker, as a parent, but also caused him significant psychological harm and distress from which he may or may not ultimately recover.  So, they are very, very serious injuries from your use of a vehicle as a weapon. 

11The seriousness of these offences is marked in part by the maximum penalties prescribed by parliament; for reckless conduct causing serious injury the maximum penalty is 15 years' imprisonment. For failing to stop and render assistance after an accident, given that this is your second offence for like offending, the maximum sentence is not less than four months' imprisonment or not more than two years' imprisonment, along with at least eight years of licence disqualification. For drive whilst disqualified, the maximum penalty is two years’ imprisonment, for committing an indictable offence on bail, three months’ imprisonment, and for failing to answer bail, two years’ imprisonment. 

12The most serious offence that you face is clearly that of recklessly causing serious injury, and in my view, your use of a vehicle as a weapon to inflict injury on a person places it in the higher range of offences of this type.

13As discussed, both at the case conference and then at the sentence indication hearing, your plea of guilty acknowledges that you appreciated the probability that serious injury would result from your conduct and yet, you deliberately embarked upon that course.  And indeed, the consequences show the materialisation of that probability and the significant lasting long-term impacts for Mr Perham from that conduct. 

14To recklessly cause serious injury to anyone is a serious offence. To do so using a vehicle as a weapon against a pedestrian, somebody who is being faced with the force of a car, and as you did in a built up area when he was standing beside a car and where there were other objects that he at risk of being also impacted by and being injured by, puts this into that serious category.  And it was, as the prosecutor properly pointed out, a case of road rage.  To use a vehicle as a weapon because you are cross with someone because of the way he looked at you, or you looked at him, or because he said, or you thought he said  something you did not like, or whatever other variant of that was advanced, is absolutely abhorrent. 

15This was not a case where he was posing a threat to your safety.  At most, it can be said you took exception to his conduct.  Even if you thought it was provocative, there is absolutely no justification for such conduct. That is why general deterrence, specific deterrence, denunciation and just punishment must carry significant weight in sentencing.  You and others who think that the response to a minor bit of irritation, because that is at the most what is was, can therefore use their vehicle as a weapon and risk causing or actually cause serious injury to a person must understand this is totally disproportionate and unacceptable conduct. Severe punishment is needed  to recognise the  seriousness of the conduct, and to make it clear that anybody else who thinks of doing that is going to face serious punishment. 

16

A momentary burst of anger has led to significant long-term consequences for

Mr Perham.  It has also led to significant long-term consequences for you because as a result, you face a significant term of imprisonment as you now unflinchingly accept. 

17In addition therefore, to the objective circumstances that made your offending serious, the other offences themselves also show that there must be significant weighting for those sentencing principles of denunciation, deterrence and just punishment, and protection of the community. 

18You have an appalling history of flouting road laws. From ignoring the requirement to satisfy a proper tester that you are able to hold a licence, and then to drive in accordance with the road rules.  Whilst your prior convictions do not show many charges for driving unlicenced, whilst suspended, or whilst disqualified, on your own admission you have been driving constantly and you have never or rarely been licenced to do so. So, you have simply thought that you could drive regardless of satisfying the authorities you either had the skills to drive or that you had sufficiently kept to the road rules to justify your right to continue to drive on a road if you did hold a licence.  So, again, people who do not bother going for their licences, who drive when they know they are not allowed to have to understand that serious and significant punishment flows.

19More significantly in your case, this is the second time when as a result of your driving, you have caused significant injury to another person and you failed to stop and failed to render assistance, and therefore, the importance of again marking denunciation and deterrence in the sentence are very, very important.

20Our responsibility as members of the community, the responsibility we bear to others means that we must take responsibility, we must accept the rules that apply to everyone for everybody's good, and if you do not, there are significant consequences that hopefully will deter you and others who think that you can get away with it.  Bail is imposed in order to allow people to remain at liberty pending trial or sentence, but on condition that they do not commit further offences and that they turn up when they are supposed to.  Similarly, disregard of bail conditions also needs to be marked and acknowledged. 

21It is a matter of notoriety that the ability to get bail in this state in recent years has been substantially constrained by further parliamentary restrictions on the right to bail once charged. It is conduct such as yours in committing further offences whilst on bail, and in failing to appear on bail, that lead to further community calls for and parliamentary restrictions on people's right to bail.  People facing criminal charges  need to understand first of all, that bail does require a personal promise not to commit further offences and to turn up, otherwise more people are going to be denied the right to live in the community pending the disposition of their charges.

22Your failure to answer bail is therefore is something that impacts not just you, but also other people who get into trouble and who, because of the response to people refusing to adhere to their bail conditions, are denied that right. Often, it might be thought, in circumstances where they would turn up and would abide by their bail conditions.  So, your conduct has an impact on other people who are charged with offences, as well as having an impact on the broader community of creating a fear that people who are charged with offences do not have a right to liberty and need to be locked away in order to preserve the safety of others.

23So, the need for deterrence and denunciation is really important here, but it is part of your responsibility so that others in your boat are not denied their liberty because of the sort of conduct that you were engaged in here.  So, all of these matters mean that for all of these charges, those principles of denunciation, deterrence and just punishment have to carry weight, and protection of the community also because there is this pattern of persistent offending.

24You have what looks at first instance to be an extensive criminal history, but on careful analysis it is clearly not as extensive as the number of pages covered would indicate.  It was back in February 2015 that you were dealt with, amongst other things, for that earlier driving and causing injury incident to which I have referred.  And you were there convicted of dishonesty offences, theft which I think was car theft, as well as shop theft, driving offences including being a learner driver and driving without a licenced driver with you, fraudulent use of number plates, and not wearing any L plates, using a vehicle when there was a defect notice on it and you should not have been driving it, not affixing number plates properly, stealing from cars, trying to steal from cars, disobeying other road rules and driving under the influence of intoxicating liquor, and committing an indictable offence whilst on bail. 

25That, in addition to the more serious charges you faced of reckless conduct endangering serious injury relating to your driving and failing to assist after an accident where a serious injury was caused, led you to be dealt with as a young offender by the imposition of a term of imprisonment and a release upon a community correction order.  You spent, I am told, eight months in custody as a result of that and were then placed on a community correction order. 

26You ultimately breached the conditions of your community correction order and were dealt with for those breaches in 2019 when the community correction order was cancelled, and you were sentenced to a further aggregate term of imprisonment of 12 months in respect of the breach offences.  Apart from that original offending in 2015 and the breach of the community correction order that you were dealt with in respect of that in 2019, you were later in 2015 dealt with by being convicted and fined for recklessly causing injury and unlawful assault, so offences of personal violence, and in October 2019 for obtaining property by deception, theft of a motor vehicle and driving whilst disqualified and sentenced to a further community correction order. And then finally, you were dealt with as I have noted for breach of that community correction order, and for further offences of robbery, threatening to inflict serious injury, assault, dishonesty offences and failing to answer bail in 2019.

27So, it is a bad history for someone who is now only 26 just about to turn 27. Your  previous convictions for that range of driving offences, violence and dishonesty offences, and causing injury offences by driving is truly troubling. It is clear that subject to considerations personal to you, specific deterrence as well as general deterrence has to carry weight in the sentencing mix.

28What then were those matters personal to you that were relied upon? I will deal first with the if you like uncontroversial matters. You have pleaded guilty. You did so after contested committal, but before trial preparation commenced and before a trial date was allocated. So, whilst not the earliest plea of guilty, it was at an early enough stage, you are entitled to a significant reduction in sentence by reason of that, pursuant to section 6AAA of the Sentencing Act.

29That plea of guilty has utilitarian benefit, it advances the interests of justice because you acknowledge your guilt, and it reduces delay and backlog in other cases.  There is an additional weighting that must be given to that guilty plea because it occurred during a time that we are still experiencing the significant backlog in cases as a result of the delays brought about by COVID-19, and it is clear that your plea of guilty must carry additional weight for those added benefits in reducing the post-COVID backlog. 

30In addition to that, you have spent your whole time on remand, just over a year and four months in COVID-related restrictions.  Imprisonment on remand is more onerous than imprisonment once sentenced in any event.  Imprisonment on remand in COVID times is, I accept, even more onerous than it is in pre-COVID times because of the restrictions in movement, the restrictions and capacity to have an enjoy visits, the restriction in time allowed outside cells, and generally for the restriction or the limitation in courses that are available to people.  All of those clearly have to be taken into account in acknowledging the weight to be given to that guilty plea and I do so and give full weight to those.

31So, they are if you like the non-controversial matters.  Dealing then with the areas that were at least at some stage of some contest. I accept now on all of the material before me, and in particular the material that was adduced today, that you have used your time in custody very well.  You have used it to reflect upon who you are, who you want to be and how you want to live your life both in custody and upon your release. I was very impressed by what you said this morning about the difference between your attitude when you were in custody in the past, and your attitude upon your remand in custody on this occasion. You contrasted your anger, your availing yourself of the easy access to drugs, and your lack of any plans or interest in changing your life on the previous occasion, to what you have done on this occasion. 

32I accept on the objective evidence before me that you have been assiduous in putting yourself down for the courses that are available. Importantly, they are courses that are designed to assist you to understand why you have been in this cycle of offending and substance abuse, and what you need to do in order to break that cycle. You have also engaged in employment, something that a remand prisoner does not have to do, and employment in an area that has made you an essential worker which has enabled you to continue to work during the COVID-19 pandemic. You are a billet, that is a trusted position, conditioned on, and a reward for good behaviour. 

33Another point of contrast that you identified between your previous term in custody and now has been the fact that you have not been in trouble, that every drug screen has been clean, demonstrating that that you have not used drugs on this occasion. All of that is reflected not only in the number of courses you have been able to do, but the fact that you continue to hold that billet position, and to have been able to work every day. So, I accept that you have clearly used your time well in custody to reflect and to prepare yourself for a better and more meaningful life upon release.

34You have shown considerable insight and understanding of the benefits of those courses, and you were able to identify that in a way that I accept as genuine and demonstrative of true learning, not parroting words you think that a judge might like to hear. You spoke of the insights you have gained about the triggers that led you to substance abuse, taking responsibility for your behaviour both in anger management and in substance abuse, and learning how to communicate without  anger and in a non-confrontational way. You have looked at the people around you and decided you do not want to be part of that revolving door prisoner population. You want to be someone who walks out after this sentence and who is not coming back except maybe to provide some peer support for young prisoners to show them that they too can turn their lives around.

35I have spoken about the efforts you have made to rehabilitate and referred to your substance abuse, and I will now turn to what led to that substance abuse and your personal history in order to show why I consider on the material now before me you are properly to be described as a person with good prospects for rehabilitation.  You were 25 at the time of the offending and you are now just shy of your 27th birthday. Although you left school early and you report a childhood diagnoses of ADHD and ODD, it was clear not only from the material before me before today, but also by the way you spoke today that you are a person of at least average intelligence and that you have been able to engage at times in post school training and work both before your remand on this occasion, but most significantly since your remand on this occasion, which show a capacity to learn, require qualifications, to benefit from learning, and to engage in sustained and meaningful employment.

36You had had more grief and loss in your life at the age of 25 than most people have had to endure, and it has had not surprisingly a profound impact on you.  You were only nine when your father was first diagnosed with brain tumours and until his death when you were aged 16, life revolved around his treatment, remission, relapse, further treatment, and for the last two years being told that he only had months to live, and so wondering every day whether it was going to be his last.  And whilst some of that might have been in a sense additional stolen time, it must have also been a desperately fraught time for a young man. 

37At the age of 16 when your father died, you clearly did not have the capacity to process the grief that you were then feeling and after such a protracted illness. It resulted in dislocation in all sorts of ways.  Your mother moved to South Australia to a rural property, whereas before the family had lived in suburban Melbourne.  You accompanied your mother. Your relationship with her was not as good as it could be or had been. She ultimately re-partnered, and you did not have a very good relationship with her new partner.

38You dropped out of school and although for a while you undertook a landscaping apprenticeship, you started abusing substances and that led to the cessation, at least at that stage, of the apprenticeship.  Your stepfather then died.  You formed a meaningful relationship and that lasted for some years, but you and your partner had both struggled with substance abuse. Although you both at times tried to assist each other to abstain, your partner ultimately died from what would appear to be a deliberately administered overdose in circumstances that left you undeservedly but not surprisingly, with feelings of guilt and responsibility.

39The psychologist Alison Mynard who assessed you for the purposes of the plea indicated that in hindsight it is clear that both after your father's death and then your partners death you suffered from complex bereavement disorder, that you did not have the capacity to understand what was happening or why, nor were you in the right space to be able to seek appropriate counselling and treatment.  Instead, you turned as so many young people do to substance abuse.  And whilst you were more vulnerable to substance abuse and less able to recover from it because of the compounding effect of the complex grief reaction, your life then became essentially one that revolved around substance abuse. That led to a poor employment history. Whilst you had the capacity to work, you could not sustain it. You also, at times, had poor relations with your family, sometimes periods of reconciliation but sometimes a period of distancing. Essentially your life revolved around substance abuse and as you now describe it, self-absorbed angry behaviour.

40It was in the early stages of that cycle that you committed the offences that led to your sentencing in 2015. After that, you were not to set yourself on a path of sustained recovery. So, that was the position you were in at the time of this offending and that continued for the two months after that whilst you were at liberty until you were identified and found, charged with these offences and remanded in custody. It makes your turnaround whilst you have been in custody this time all the more remarkable, and the sustained nature of it is something that I see as very promising and a reflection of not just a desire to change, but a capacity and a commitment to sustain that change, that bodes very well for you.

41On the last occasion in my discussions with Mr McPhie, he ultimately disavowed reliance upon the first limbs of Verdins in seeing your complex grief disorder as bearing upon your moral culpability and therefore leading to a reduction in the weight to be given to general deterrence. It is clear that the real factor behind this offending was that you were substance impaired, and your judgment was clouded because of that.  So, whilst you might have been predisposed to abuse substances and to not be able to sustain abstinence, it was self-induced intoxication that clouded your judgment on this night and led to the offending.  However, that background of the complex grief disorder rendering you, a young person, vulnerable to substance abuse, and the number of losses that you have had in your life that are clearly part of a general background that should be properly taken into account as better explaining your vulnerability. That makes the recovery that you had made since your last remand in custody. and your reflections about yourself and your responsibility that you have expressed and experienced since then all the more impressive.

42It follows therefore, that what you said this morning when in effect giving an oral presentation of the letter that you had written but were unable to have printed out in the prison and presented to me, is something I give considerable weight to.  I accept that at the time of the offending you were on the outer edge of youthful immaturity in accordance with the generally accepted understanding of the neurological development of young people, particularly of young men, and that in the time that you have been in custody that has coincided with that maturation of the brain, the removal of the methamphetamine from your brain at the same time, and a capacity to reflect and mature, to learn from it and to show a capacity for longer term thinking and an understanding of the longer term consequences.  But it means that I treat you to some extent as somebody on that outer edge of impulsive young offender with a troubled background not of his own making. That bears on and reduces your moral culpability. It is really the change in the last 16 months since you have been in custody that is the remarkable thing that leads to the significant mitigatory factor in the overall sentences that are to be imposed. 

43On the material that was before me at the time of the sentencing indication, I indicated that I accepted what had been said by the Court of Appeal in Harrison[1] in relation to the need to reflect the gravity of offending such as yours by way of sentences higher than those which had been previously imposed, and I gave an indication having regard to that case as to where I thought the maximum I would impose for the major charge would sit. 

[1]Harrison v The Queen [2015] VSCA 349.

44Having heard the additional material today about the change in you and your acceptance of responsibility I have actually come down from that outer limit that I indicated last time because I consider that you have shown a great acceptance of moral responsibility that entitles you to a greater reduction in the head sentence as well as the non-parole period. 

45It is clear that being on that sort of outer edge of youthful offender and having seen the evidence of change, that yours is a case therefore where considerable weight has to be given to your prospects of rehabilitation, greater certainly than I would have thought at the time of the sentencing indication hearing. Although the material then was quite impressive, your prospects are greater now because of the additional material that was presented to me this morning. And that, together with the additional weight that must be given to COVID-related harshness of imprisonment mean that there is a greater balancing of your prospects for rehabilitation against the weight that must be given to those other sentencing principles that I have previously identified.  That is not in any way to detract from anything I have said about the objective gravity of the offending and the abhorrence with which such behaviour must be seen, but it is a recognition of the personal journey against a background of disadvantage that must be reflected in the sentence.

46In my view, you have now demonstrated that you have purpose in life, and want  to lead a lawful, meaningful, contributing life.You have shown the capacity to take advantage of opportunities offered to you and to actually develop skills and learn from them. That should stand you in good stead.  Your unflinching acceptance of responsibility and the fact that you are going to spend further time in prison, and it is as you put it a long time and one that you deserve, is also impressive and I take that into account. 

47I consider therefore that you have shown that commitment to developing yourself as a person that you should well be able to sustain whilst in custody and upon release on parole, and then ultimately release without any conditions upon you.  You have got the intelligence, the skills to be able to engage in meaningful employment and the desire to do so.  You have got stable accommodation available to you with a supportive, non-substance abusing friend and a child to whom you have already been a loving person in his life and to whom you want to be a good role model.  All of those are very powerful factors that count in your favour for rehabilitation, and as you yourself have said, you are much more fortunate than many other people in custody who do not have those supports and something to look forward to.

48Therefore, I propose to structure the sentence as I indicated I would on the last occasion to allow a significant gap between the head sentence and the non-parole period for you to continue not only to develop and entrench those resources you have shown whilst in custody before your release on parole should the parole authority see fit to release, but also to give you a considerable time in the community with the support of parole structure around you to help in that difficult transition back into the community so by the time your parole period expires you can properly say you are safe and the community will be safe, and you will be able to sustain the change that you have shown a desire and a capacity to achieve. 

49Brodie Hutchins, on the indictable charge and the four related summary offences to which you have pleaded guilty, you are convicted. On the charge of recklessly cause serious injury, you are sentenced to be imprisoned for a period of five years and six months. On related summary offence 7 of failing to stop, you are sentenced to be imprisoned for a period of 12 months, and I direct that three months of that be served cumulatively upon the sentence on Charge 1 and the other partial cumulation order that I am about to make. On related summary offence 11 of drive whilst disqualified, you are sentenced to be imprisoned for a period of nine months, and I direct that three months of that sentence be served cumulatively upon the sentence on Charge 1 and the partial cumulation order I have made in respect of related summary offence 7. On each of related summary offences 12 and 13, commit an indictable offence on bail and fail to appear on bail, you are sentenced to be imprisoned for a period of one month.

50That makes a total effective sentence of six years' imprisonment, and I fix the period of two years and nine months as the time that you must serve before being eligible for parole. 

51I further order in relation to related summary offence 7 that all licences held by you are cancelled and you are disqualified from obtaining a further licence or from driving for a period of eight years. 

52I declare pursuant to section 6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you to a total effective sentence of nine years' imprisonment, and I would have fixed the period of six years as the time that you would have had to have served before being eligible for parole.

53I declare that you have spent 501 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

54Mr Hutchins, I commended you at one of the earlier hearings for the way you had engaged in the process, for that acceptance of responsibility and the way you conducted yourself through the case conference when I was saying some pretty harsh things about the offending, and the sentencing indication when I was indicating the sort of sentence that I was thinking of.  It showed an increasing maturity I thought, and I told you so.  I want to thank you again for the way you have accepted responsibility and the way you've conducted yourself in the hearing, and I have great hope that you'll be able to sustain the expectations you have of yourself .  You just sound and appear like a very different person to that belligerent, angry, irresponsible young man you had been, and I wish you well.

55OFFENDER:  Thank you, Your Honour.

56HER HONOUR:  Thank you, let's adjourn.

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