Director of Public Prosecutions v Hutchins

[2017] VCC 999

IN THE COUNTY COURT OF VICTORIA
AT WANGARATTA
CRIMINAL DIVISION

Case No. CR-17-00684

DIRECTOR OF PUBLIC PROSECUTIONS  Prosecution

v

DARREN HUTCHINS  Defendant

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JUDGE:  His Honour Judge Murphy
DATE OF HEARING:  25 July 2017
DATE OF SENTENCE:  25 July 2017
CASE MAY BE CITED AS:  DPP v Hutchins
MEDIUM NEUTRAL CITATION:                 [2017] VCC 999

REASONS FOR SENTENCE

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CRIMINAL LAW – Sentence – Charges of criminal damage and intentionally causing injury – Related summary offences – Whether 250 days of pre-sentence detention sufficient as sentence – Whether combined sentence of imprisonment and a Community Corrections Order appropriate – Whether head sentence with a non-parole period appropriate – Sentence of 15 months with a non-parole period of 9 months imposed – Director of Public Prosecutions v Hutchins [2011] VCC 345, referred to.

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APPEARANCES:                Counsel  Solicitors

For the Crown  Mr A Moore      Office of Public Prosecutions

For the Defendant                Mr J Lowy  Stuthridge Legal

HIS HONOUR:

1. Darren Hutchins, you have pleaded guilty to one count of criminal damage and one count of intentionally causing injury to Matthew Prentice.  You have also pleaded guilty to two summary counts, one of entering a private place as a trespasser and a second count of committing an indictable offence whilst on bail. 

2. The circumstances of the offending, and the applicable maximum penalties, were set out in the Crown opening which was read in open Court and which I incorporate by reference.

3. The offending all occurred on 17 November 2016 at Nathalia in the early hours of the morning while you were living in a caravan just next door to the location of the offending, which was where the complainant and his partner, Teagan Marshall, were living. You were a regular visitor to their house, and in fact had been a long-time acquaintance or friend of the complainant. 

4. You had been drinking that night with Mr Prentice.  You went over there at some stage on your assertion to protect Ms Marshall who you believed was about to be assaulted or thrown out by Mr Prentice.  You, in fact, had called triple zero in the early hours of the morning but before that, the police had been called where you had been excluded from the house by Mr Prentice. The police had earlier instructed you not to return to the premises.

5. Notwithstanding that instruction, which you conceded you received from the police, you in fact returned to the premises an hour or so later in the early hours of the morning where you barged into the house.  You had with you an extendable steel pole and then proceeded to use that pole to bash a door inside the house, attempting to get in the room where Mr Prentice was located with Ms Marshall. The damage to the door constitutes charge 1.

6. After you achieved entry into the room, there was a struggle between you and Mr Prentice. You hit Mr Prentice on the head with the pole, causing injury to him consisting of bruising and swelling to the forehead and lacerations. At this stage, the police were called. This constitutes charge 2, intentionally causing injury to Mr Prentice.

7. You then left the property and were seen on the road yelling in an intoxicated and distressed state. Police arrived at 3.30am. You smelled strongly of alcohol and gave an erratic account of what had occurred that morning.

8. Ms Marshall denies the account that you gave in the record of interview, where there was various allegations about the use of drugs, and that in fact you had been assaulted or that a knife had been pulled on you by Mr Prentice. Given that you have pleaded guilty to intentionally causing injury, the assertions in the record of interview that you were in fact were engaged in some form of self-defence, I set aside and give them no weight.

9. The offence of trespass is constituted by the fact that you were told not to attend that property by the police and you did.  You had no right to go in there. 

10. The second summary offence of committing an indictable offence on bail was constituted by the fact that you had been the subject of some form of Intervention Order taken out by the police on behalf of your mother. You were on bail for a breach of that Order.

Seriousness of the offending

11. The offence of criminal damage here has some seriousness because it occurred inside a house, and was constituted by a violent episode where you damaged the door with the pole. The actual amount of damage, in terms of cost, is not clear. The fact that no compensation order is sought does not detract from the seriousness of the offence.

12. The offence of intentionally causing injury here is at the lower end of the range, as was submitted by your Counsel, on the basis that the injuries are at the lower end of the range given that the complainant did not go to a doctor and recovered in a couple of days.

13. The trespass was a blatant trespass in the middle of the night on property where you had well and truly been told you were not to enter, and so that is a serious example of the offence of trespass. The offence of committing an indictable offence whilst on bail is also serious, as you were aware that an Intervention Order had been taken out against you, and you were aware that you were on bail.

14. Your explanation for the offending, as given by your Counsel, was your loss of inhibition due to intoxication.  You had called triple zero in relation to this altercation that you said was taking place in that property.  As your Counsel put it, you should have waited for police, but rather you went in there and engaged in some self-help and committed the assault against the complainant and broke the door down.  That provides no excuse for the offending, but it does provide some explanation.  The troubling thing about the explanation, to which I will return, is that you have in a sense a prior history of doing this type of thing.

Prior convictions

15. You have admitted an extensive criminal record.  I will not summarise your record – it is summarised in the sentencing remarks of His Honour Judge Wood delivered on 1 April 2011 when he dealt with you in this Court (at Shepparton) for the offence of recklessly causing serious injury.[1] Judge Wood summarised your prior offending which dates back to 1981, when you were 18 years of age. Most significantly, your serious offending seems to have commenced in about 2005. There is an explanation for that, in that you did have some form of health breakdown in 2003.

[1] Director of Public Prosecutions v Hutchins [2011] VCC 345.

16. Your Counsel in a frank submission noted that you have four prior convictions for unlawful assault, four for recklessly causing injury, three for intentionally causing injury and one for recklessly causing serious injury.  So that is a formidable record of violence against the person.

17. Your Counsel put that your current period of pre-sentence detention is the second longest period of incarceration that you have served. After receiving the sentence of four years with a minimum of two and a half years from Judge Wood, you in fact you served the whole of that sentence.  My calculations indicate that in fact that sentence had expired about one and three-quarter years prior to this offending.  This indicates that notwithstanding a significant period of imprisonment, you have fallen back into offending within a period of less than two years, which is a similar type of offending.

18. Your prior convictions as set out and analysed by Judge Wood indicate that you have a serious problem of impulse control and, in particular, when under the influence of alcohol.  Judge Wood, in describing the particular offence for which he was sentencing you for, in those sentencing remarks indicates:

34. It is of particular concern that your offending overwhelmingly involves violence and not only on this occasion but on others, serious violence.  Moreover, your offending is largely unprovoked…

…

35. On this occasion, it would seem on all other occasions when you have exhibited violence…[that it] provides an explanation of your aberrant behaviour, though it does not justify or mitigate it.  At the time of your commission of this offence, you well knew that you had difficulties with alcohol when stressed, which could lead you to act with violence.

19. So this is a case where you have attacked the complainant in the matter when you were under the influence of alcohol with a metal instrument, which you have done in the past. Weighing against that is the fact that there is a lack of a victim impact statement.  The photographs of the injuries indicate they are in the lower end of the scale.  The aggravating features of this offending are that you were on bail at the time, it happened at night, you were intoxicated and it occurred in the home of the complainant and, as you have done in the past, you were using a weapon.

20. Your Counsel put that you pleaded guilty at the earliest opportunity, particularly as the prosecutor noted that originally you were charged with aggravated burglary.  That was resolved, so there was an early plea.  You cooperated with the police and saved the community a need for a criminal trial and you are entitled to the benefit of that and I do give you credit for that.

Personal circumstances

21. Your personal circumstances were set out in Judge Wood's sentencing remarks and also set out in your Counsel's outline which I incorporate by reference.  You are aged 54.  Your father passed away some time ago, and you have since had issues with your mother. You are one of four siblings, however, one of your brothers also passed away some time ago. You were raised in the Nathalia area.  You left school at 16.  Importantly, you had a history of work in the community up until about 2005 in a variety of rural jobs.  So you had contributed to the community by being in work.  You were also in the army for a period of time.

22. The most significant matter in your personal circumstances is that you did suffer as a secondary victim of a motor vehicle accident in about 2003.  As a result of that, you have suffered significant mental illness and, in particular, you have been on antidepressant tablets for the last 11 or so years.  As a result of coming across a very serious car accident, you developed severe mental consequences which resulted in you being treated by Dr Lester Walton, psychiatrist. All of this, late in your life where there is no history of mental illness in your family, forced you out of the workforce which you have not returned since about 2005.

23. Your Counsel indicated that in the period that you have been on remand, a period of 250 days, that you have kept out of trouble, kept your head down in prison and you have been working as a billet and upon your release, you are hoping to resume a normal life in the community in this caravan that you were living in previously that has now been moved to another location in the Nathalia area.

24. You have got three children.  Your son has had previous involvement with the police, and is now serving time is prison. Your 22 year-old daughter, who has a child of her own, is happy to resume her relationship with you upon your releases. You do not have regular contact with your other daughter.

Purposes of sentencing

25. The basic purposes for which a Court may impose a sentence is punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

26. As I have indicated, and as I did during the course of the plea, specific deterrence is a very significant factor given the number of prior convictions you have.  You have four prior convictions for offences of violence with a weapon. On the other hand, your rehabilitation into the community is an important factor.  The prosecution submitted that a parole sentence is required here with a non-parole period. The learned Crown prosecutor, in a helpful submission, indicated that the period of your pre-sentence detention is close to what might be regarded as a suitable non-parole period.

27. Your Counsel on the other hand submitted that the sentence of the Court should effectively be the pre-sentence detention.  Your Counsel did, however, submit that you may benefit from some supervision.  He indicated also in terms of your health that you've had a number of prior health problems, which I have previously mentioned.  You have also got some problems with a rotator cuff and your knee.  He indicated that you had been on antidepressants for the last 10-11 years. 

28. You are aware that alcohol is a problem.  It leads to lack of inhibition. Your amount of drinking has reduced over time, but on that particular occasion, you had been given a bottle of scotch by someone and that led to the drinking and then led to this overreaction, which led to the offending on this particular night.

29. I have weighed the issue of a sentence for you.  In sentencing you, I have got to work on the basis that you may have to serve every day of a particular sentence, even though I might set a non-parole period.  The fact that you have continued to re-offend after earlier sentences, including suspended sentences, is very troubling because there is obviously an inhibition or an impulse control problem.  On the other hand, questions of proportionality are relevant, particularly given the level of seriousness of the offending.

30. Although you have a number of prior convictions, the sentence has got to be proportionate to the actual harm/damage that was done to the complainant, which the prosecution concedes in the lower end of the scale.  Weighing against all that is the issue of protection of the community. 

31. I have taken into account all the matters that were put on your behalf.  I have taken into account your plea of guilty.  I have taken into account that this was really a single event that night without any premeditation.  I also take into account the consequences to the complainant, and also the lack of a victim impact statement and a lower level of injury.  On the other hand, it was not the first time you have used a weapon to commit an assault against the person. 

Sentence

32. On charge 1, the charge of criminal damage, you are sentenced to three months' imprisonment. 

33. On charge 2, the charge of intentionally causing injury, you are sentenced to 12 months' imprisonment. 

34. On the summary charge of trespass, you are sentenced to two months' imprisonment.

35. On the summary charge of committing an indictable offence on bail, you are sentenced to one month imprisonment.

36. Charge 2 is the base sentence.  I direct that two months of the sentence imposed in relation to charge 1, and one month of the sentence imposed in relation to the summary charge of trespass, be served cumulatively upon each other and upon the base sentence.

37. The total effective sentence is, therefore, 15 months' imprisonment. 

38. I direct that you serve a minimum period of nine months' imprisonment before being eligible for parole.

39. I declare 250 days of pre-sentence detention, excluding today.

40. I declare, pursuant to section 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, I would have imposed a head sentence of 20 months' imprisonment with a non-parole period of 12 months' imprisonment.

41. I also made the disposal order sought in relation to the metal pole.

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