Director of Public Prosecutions v Hutchins
[2020] VCC 755
•1 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-00176
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMYIE LEIGH HUTCHINS |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2020 | |
DATE OF SENTENCE: | 1 June 2020 | |
CASE MAY BE CITED AS: | DPP v Hutchins | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 755 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of aggravated burglary – One charge of intentional criminal damage – Two summary charges of unlawful assault – Offender in company entered residential home at night and assaulted victims – Serious example of the offences –Prior criminal history – Genuine remorse – Reasonably good prospects of rehabilitation – Circumstances surrounding COVID-19 pandemic taken into account.
Legislation Cited: Crimes Act 1958; Summary Offences Act 1966; Sentencing Act 1991.
Sentence: Imprisonment for a period of 3 years with a non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov | Office of Public Prosecutions |
| For the Accused | Mr C Marshall | C. Marshall & Associates |
HIS HONOUR:
Introduction
Jamyie Leigh Hutchins, you have pleaded guilty to one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1), and one charge of intentional damage to property contrary to s 197(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2).
You have also pleaded guilty to two related summary charges of unlawful assault, contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 15 penalty units or three months imprisonment on each charge (Summary Charges 4 and 7).
You have also admitted your prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 12 November 2019 at approximately 8.15pm, you drove in a white Nissan Navara Utility from Bendigo to Serpentine with Bailey Danaher-Copping, who was 21 years of age at the time and the co-accused in this matter.
At approximately 10.20pm, CCTV at Serpentine Caltex Roadhouse captured you and Mr Danaher-Copping arriving at the location. You put fuel in the vehicle before entering the store to pay. Your then girlfriend, Laura Yule, was working at Serpentine Caltex Roadhouse that evening. You and
Mr Danaher-Copping then left the service station in the vehicle.
At approximately 10.30pm you and Mr Danaher-Copping arrived at 6 Chapel Street, Serpentine. Craig Fazulla, the primary victim in this matter, lived at this address with Shane Vernal, the secondary victim and owner of the premises.
Your ex-girlfriend, Shannon Zimmer, lived across the road from Mr Fazulla with your two children and it seems that your motivation for the offending was in relation to being told that Mr Fazulla had been around your children in the context of you believing that he had been sentenced in the past for some form of sexual offending.
When you arrived at the victims’ address, Mr Vernal was in bed in the front bedroom and heard a male voice screaming ‘Where are you Bull?’, Bull being
Mr Fazulla’s nickname. You and Mr Danaher-Copping then entered the house by forcing the front door. It is these facts that relate to Charge 1, aggravated burglary.
As Mr Vernal was getting out of bed, he heard a loud bang and was confronted by you and Mr Danaher-Copping at his bedroom door. You said ‘Where the fuck's Bull?’ and hit Mr Vernal twice to the left side of his face with your right clenched fist. You then grabbed Mr Vernal’s arms and screamed ‘Where the fuck's Bull?’ Mr Vernal suffered soreness to the right side of his face and both his upper arms. It is these facts that relate to Summary Charge 4, unlawful assault.
Mr Vernal told you that Mr Fazulla was out the back. You and Mr Danaher-Copping walked to the backyard of the property and approached a caravan. You pulled the caravan door off its hinges. It is these facts that relate to Charge 2, intentional damage to property.
Christopher Noy was sleeping inside the caravan. He heard a loud bang and crash before two males entered the caravan saying ‘Where’s Bull, where’s Bull?’ You and your co-accused then exited the caravan.
Mr Fazulla was in a small bedroom attached to the back of the residence and heard someone yelling out ‘Bull’. He walked out to the veranda and saw you and Mr Danaher-Copping, who was unknown to him, approaching.
You punched Mr Fazulla to the face and ribs a number of times and then
Mr Danaher-Copping started punching him in the face. Mr Fazulla stated that the punches to the face were hard and he received cuts to his top lip, a bloodied nose and a bruise to his left eye. It is these facts that relate to Summary Charge 7, unlawful assault.
During the struggle Mr Fazulla picked up a piece of wood to defend himself and hit you over the head with it. As a result, your baseball cap fell off and you sustained a cut to the top of your head.
You and Mr Danaher-Copping then walked down the driveway. Just prior to leaving you told Mr Fazulla to stay away from your kids.
CCTV shows you and Mr Danaher-Copping returning to the Serpentine Caltex Roadhouse at 10.50pm and Ms Yule providing you with a napkin for your bleeding head.
After the incident you sent a Facebook message to Mr Fazulla which read ‘Next time I come up I will be sure to bring my tools’ followed by laughing faces.
The victims contacted police on the morning of 13 November 2019. Detectives from Central Goldfields Crime Investigation Unit and Crime Scene Services attended the address. Drops of blood were located on the concrete footpath in the rear yard and your blue cap was located in the backyard of the premises.
On 13 November 2019 at approximately 2.05pm, detectives attended
9B Farnsworth Street, Eaglehawk, and located you and Mr Danaher-Copping. You were both arrested and transported to Bendigo Police Station where you made a ‘no comment’ interview.
Nature and Gravity of the Offending
Aggravated burglary is recognised by Parliament as a serious offence which is reflected in the maximum penalty of 25 years imprisonment. However aggravated burglary offences are committed in a wide range of circumstances. In this case, the aggravated burglary was committed on the basis that you entered the victim’s home with an intent to assault knowing or being reckless to the fact that a person was present.
In this instance, it is clear from the prosecution summary that once you had entered the house you were very determined to find Mr Fazulla and persisted until you achieved your aim of assaulting him. In the course of that endeavour, you assaulted another victim and damaged property by pulling a caravan door off its hinges and entering the caravan where there was a third occupant.
What is clear is that this whole event would have been extremely frightening for the people who were in the house when you and your co-accused entered. While your aim was to find Mr Fazulla, there were two other persons on the property who had nothing to do with you or your concerns with Mr Fazulla. When you confronted Mr Vernal, rather than just asking him where Mr Fazulla was, you gratuitously assaulted him by hitting him twice to his face with a clenched fist.
Ultimately, once you did find Mr Fazulla, both you and your co-offender punched him a number of times to his face resulting in the injuries described. Shortly after the commission of the charged offences you sent Mr Fazulla a threatening message via Facebook.
In assessing the seriousness of the aggravated burglary charge I also take into account that you entered a residential home at night where people were sleeping, that you were in company and that the offence involved a degree of planning in that you travelled some distance from Bendigo to Serpentine in order to confront Mr Fazulla.
In all the circumstances in my view the aggravated burglary is a relatively serious example of the offence. The assault charges, while summary offences and thereby not at the serious end of the criminal calendar, are in my view serious examples of the offence of unlawful assault.
A victim impact statement was prepared by Shane Vernal. Mr Vernal makes the point that your conduct had nothing to do with him, yet he has had to now deal with it. He notes the inconvenience this has caused including that he had to make repairs to his home. Mr Vernal has been worried about the event enlivening previous Post Traumatic Stress Disorder he had suffered in the past.
Personal circumstances
You are 31 years of age and you grew up in Casterton. Your father left your mother when you were very young. You have four older siblings now aged 39, 37, 36 and 33. When growing up you were particularly close to your maternal grandmother and you describe a very positive relationship with her.
You attended the local primary school and state that you struggled until
Grade 6. You were diagnosed with ADHD at the age of seven and commenced on medication in relation to that disorder. You attended the Casterton Secondary College however you left school in Year 7 when you were offered employment.
After leaving school you have had a good history of employment in labouring work including seasonal work, predominantly as a shearer.
You have been involved in a number of long-term relationships the first of those beginning when you were 18 years of age. From that relationship you have a son now aged 10 with whom you have intermittent contact.
You have two children with your current partner, aged four and one, and while that relationship has had its difficulties in the months leading up to your remand, it appears that the relationship is now on a better footing and that your partner continues to support you.
As to your drug history, you were introduced to cannabis at the age of 12 and were smoking the drug two to three times a week. By the age of 15, that use had increased to daily where you indicate that at its peak, you were smoking up to seven grams a day. You state that you continued to use cannabis until about three years ago when your partner confronted you about your use and you ceased. You have also used methamphetamines commencing at the age of 15 which you were injecting about once a week initially, again increasing to daily use. However in 2015, you also ceased using methamphetamines.
In the months leading up to the current offending you commenced taking Valium as a result of an initial prescription from your general practitioner to treat anxiety however you began abusing the drug. In a psychological report prepared by Warren Simmons, he opines that the use of Valium in the period leading up to the offending may have disinhibited you to some extent.
The report of Mr Simmons provides a detailed history including your medical and psychological background. Mr Simmons observed you to present with symptoms of depression and anxiety at the time of the interview however he did not make any connection between your psychosocial state and the offending. Mr Simmons does observe that you have some insight into your offending stating that you acknowledge the victim did not deserve what occurred and that you appreciate that your conduct has repercussions. I have taken the contents of Mr Simmons’ report into account.
You wrote two letters that were tendered on the plea. The first of those is directed to the Court reflecting your feelings in relation to the offending and your personal circumstances. You state that you would respect any disposition of the Court allowing you to enter the community. You also refer to courses you have completed in custody and I note that certificates were tendered in that regard. The second letter is addressed to the victim Shane Vernal. In that letter you apologise for your conduct which you described as ‘unacceptable behaviour’. I was told on the plea that this letter has not as yet been passed on to the victim, however I take it into account as to your appreciation of the impact of your conduct on the victim.
Sentencing considerations
I take into account your plea of guilty which was entered at the earliest opportunity at the committal mention. By your plea you have saved court time and the need for the victims to give evidence. As such your plea has utilitarian value and has facilitated the course of justice.
In addition to your plea of guilty in my view there has been some evidence of genuine remorse. You have expressed in the letter that you have written to the victim Shane Vernal that your behaviour was unacceptable and you apologise to him in that letter. Further, I note that you indicated to Mr Simmons that your actions were inappropriate and that you stated to him that the victim did not deserve what occurred.
As noted above, aggravated burglary is a serious offence which most commonly involves an invasion of private residences where people are entitled to feel safe and secure. In this instance you entered a private home at night and in company and assaulted two people in the house. As such general deterrence and denunciation of your conduct are primary sentencing considerations.
Specific deterrence must also be given some weight in this instance. While your prior criminal history suggests that your offending in recent times has decreased to some degree, you have a number of violent offences in your past including recklessly causing serious injury. You have also been given opportunities in the past including community correction orders and suspended sentences.
As to your prospects of rehabilitation, I note that you have had a relatively stable work history, that you are repairing the relationship with your partner and that you have two very young children that you wish to reconnect with. Further, while there is some history of drug use in the past, you do not struggle with an addiction to methamphetamines. In my view in all the circumstances your prospects of rehabilitation may be assessed as reasonably good.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. Applying these matters to your specific personal circumstances, including the fact that visits with your young children have ceased, allows for a discount in sentence.
You have been on remand for just over six months and it was submitted on your behalf that a combination sentence pursuant to s 44 of the Sentencing Act is a sentence that is able to meet the relevant sentencing considerations. The prosecution submitted that even taking into account the days you have served; the available prison component of a s 44 sentence is inadequate to meet the applicable sentencing considerations. In my view, taking into account all the relevant circumstances including the seriousness of the offence and your prior criminal history, the only appropriate sentence is a term of imprisonment that includes a head sentence and a non-parole period. However, I am also of the view that as I have assessed your prospects of rehabilitation positively, you would benefit from a longer than usual parole period in order to facilitate your ongoing rehabilitation.
Sentence
Mr Hutchins please stand.
Jamyie Leigh Hutchins, on Charge 1, aggravated burglary, you will be convicted and sentenced to 3 years imprisonment.
On Charge 2, criminal damage, you will be convicted and sentenced to 3 months imprisonment.
On the related summary Charges 4 and 7, you will be convicted and sentenced to 6 weeks imprisonment on each charge.
I direct that you serve 20 months imprisonment before becoming eligible for parole.
Pursuant to sb18 of the Sentencing Act 1991, I declare that 201 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 4 years imprisonment with a non-parole period of 2 years and 6 months.
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