Director of Public Prosecutions v Hyland
[2024] VCC 1852
•18 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00923
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW HYLAND |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2024 | |
DATE OF SENTENCE: | 18 November 2024 | |
CASE MAY BE CITED AS: | DPP v Hyland | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1852 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of causing injury intentionally – plea of guilty – victim vulnerable elderly mother of offender – unprovoked attack in victim’s home – lack of post-offence remorse – offending of high objective seriousness – limited prior criminal history – reasonable prospects of rehabilitation – general deterrence as important sentencing consideration – offending too serious to warrant combination sentence
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:DPP v Gareth [2022] VCC 999; Harvey v The Queen [2021] VSCA 84; Rivera v The Queen [2020] VSCA 5; Latina v The Queen [2015] VSCA 102
Sentence: Total Effective Sentence: four years
Non-Parole Period: two years and ten months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Walker | Office of Public Prosecutions |
| For the Accused | Ms C. Marthick | Victoria Legal Aid |
HER HONOUR:
1Andrew Hyland, you have pleaded guilty to one charge of causing injury intentionally contrary to s18 of the Crimes Act1958, which carries a maximum penalty of 10 years’ imprisonment.
Circumstances of Offending
2The circumstances of the offending are set out in a Summary of prosecution opening on plea dated 5 August 2024.
3The victim is your biological mother, Betty Hyland, who was born in August 1941 and is now 83 years old. She was 82 at the time of the offending. You were aged 55.
4At the time of the offending, you were residing with Mrs Hyland in a self-contained bungalow at the rear of her address in Reginald Court in Broadmeadows. You had been living in the bungalow since approximately 2013 and you relied upon your mother for accommodation due to being unemployed since 2012. You paid her a nominal amount of rent.
5On Wednesday 10 January 2024 at approximately 4.10 pm, your mother returned home after taking your pet cat to the vet to be desexed. Mrs Hyland handed you a list of post-operation requirements for the cat. She observed that you were alcohol affected. The victim left the pet cat in your care. She then returned to the rear bungalow approximately 30 minutes later where she observed that the cat had not been cared for. Mrs Hyland told you that she would take the cat into the house and care for it for the required two weeks. She requested that you obtain food for the cat and then returned to the main house.
6A short time later you entered the victim’s house through the front door using a key that you had in your possession. Your mother met you at the front door of the address. You began screaming in her face. You picked up your mother, throwing her to the ground in the doorway which connects the main living area and bathroom. Mrs Hyland hit her head on the architrave, causing a laceration and bleeding. Using force, you rolled the complainant onto her back whilst she was on the floor and commenced punching her in the face multiple times with both hands. She was screaming at you to stop.
7Mrs Hyland managed to manoeuvre back onto her stomach and started crawling away from you towards the couch in the living room. You continued to punch her to the back of the head while she was trying to escape. During the assault you were screaming at your mother saying, 'You fucking bitch'. The victim was begging you to stop during the assault saying, 'Stop, I’m sorry, please stop - help me'. You then walked out of the address. You told police that you returned and then kicked the complainant before leaving again.
8At 4.47pm, your mother called 000 using her mobile phone to request an ambulance. Eight minutes later police arrived at the address. You were seen standing on the footpath in Reginald Court in Broadmeadows and subsequently placed under arrest.
9At 5.15pm, paramedics arrived and began assessing and treating the victim. Police observed injuries to her face and blood on the carpet in the living room. Photographs were taken of the scene and of your mother’s injuries. She was conveyed to the emergency department of Royal Melbourne Hospital via ambulance. She was admitted to the trauma ward for the principal diagnosis and management of bilateral haematomas to the periorbital eye socket region, and bilateral conjunctival haemorrhage (broken blood vessels within the eyes). X-ray imaging of the right knee, right elbow and left humerus was completed with no fractures identified; however, soft tissue swelling was noted to the inner region of the right knee. CT imaging of the chest, abdomen, pelvis, brain and cervical spine indicated no abnormal findings relating to the traumatic assault.
10Your mother was ultimately discharged from the Royal Melbourne Hospital on 12 January 2024.
11Upon arrest you were taken to the Broadmeadows police station. At 6.46 pm, a forensic medical officer conducted a fitness for interview examination. You were found to be fit for interview, with a recommendation that a third independent person be present during the interview for the purpose of providing general support.
12At 8.52 pm the record of interview commenced. During the interview you told the police a number of things:
(a) When asked why you were in custody, you stated: 'I bashed me mother';
(b) In relation to the events during the day you stated:
(i)'I was supposed to take the cat down to the vet to get her desexed and vaccinated';
(ii)You said: 'My mother took me cat to the vet today';
(iii)You said: 'And then she comes home and she won’t even say the cat’s well and safe and sound and healthy.'
(c) As regards any conversation prior to the incident, you stated: 'I understand she started the passive aggressive communication … she loves conflict by the way';
(d) When asked what happened when you entered the victim’s house to look for the cat, you stated: 'I just started smashing her, I really smashed her, I really beat her around … she was lying on the ground, I’m still hoeing in';
(e) As to the assault you indicated:
(i)'Well, I think I punched her a couple of times to the face and she went out … yeah I – I started smashing her in the face';
(ii)You said: 'I probably threw about eight strong punches … I was about to walk out and I … gotten really angry again … and I started kicking her while she was on the ground';
(iii)You said: 'She’s got blood pissing out of her face, I went back and kicked her, she - that was disgusting, I- I- I just reckon she’s had it coming for years';
(iv)You told police: 'I don’t want to say she enjoyed it but I bet she did';
(f) When questioned about what occurred as you were leaving the address, you stated: 'Well, I don’t know if she wanted more of it, and so I went back and gave her another dose … I went back in and I kicked her … while she was on the ground … I think I kicked her up the arse';
(g) As to your actions following the assault, you stated that you decided to go to the shops and you were going to get a cup of coffee when you saw police;
(h) When asked what you were trying to achieve by assaulting your mother you stated: 'I had no intention, I wasn’t trying to achieve anything … I think she was asking to be beaten up'.
Victim Impact Statement
13There is no victim impact statement tendered.
Procedural history
14A filing hearing took place on 11 January 2024. On 4 April 2024 at committal mention, the matter resolved and you indicated your intention to plead guilty to the charge. The matter was then listed for a summary jurisdiction application which took place on 15 April and adjourned part-heard to 6 June 2024. The application for summary jurisdiction was refused and you were committed to stand trial. Your plea hearing took place on 28 August this year. Following that hearing, after raising the matter with parties, I determined that a Forensicare assessment would be appropriate. The matter was further adjourned to enable the assessment to take place and a report provided. A report by psychiatrist Dr David Trainor was received on 7 October this year. I take into account that the preparation of the report delayed the finalisation of this matter, and the stress associated with the uncertainty of the delayed outcome.
Prior criminal history
15You have admitted a prior criminal history from 5 September 2014, which concerned a charge of indecent assault and a charge of fail to answer bail. Your counsel advises that this relates to you groping a retail assistant on the behind. On that occasion you were sentenced with conviction to undertake a community correction order for a period of 12 months. This order included conditions in relation to treatment and rehabilitation with respect to your mental health and an offending behaviour program.
16You returned to the Broadmeadows Magistrates Court in May 2016 in relation to a breach of that contravention order which was ultimately found proven and the order varied. You have not come into contact with the criminal justice system since then.
Personal circumstances
17You are now 56. You were born in Tasmania and your family relocated to Melbourne when you were a child. You have recalled an unstable childhood marred by verbal abuse from your parents and frequent arguments between them. Your family often moved addresses. You have four siblings with whom you have had no contact for 10 to 15 years. You were raised by your mother following the breakdown of your parents’ relationship. Your father left the family home when you were 10 years old. You saw him yearly until you were 18 but then had little contact with him.
18You completed Year 12 and continued your education with a teaching degree at university. You have also completed a graduate diploma in geography and sport and recreation. After graduating from your degree, you worked as a teacher in Australia, South Korea and the Solomon Islands. You most recently worked at the Maribyrnong Council between 2000 and 2009 as a sports and recreation manager, however, you were made redundant in 2009 and since then you have struggled to return to the workforce. You have received Centrelink payments for the past 14 years.
19You were married at the age of 27 and that relationship ended amicably after eight years. You are single and have no children.
20After you were made redundant, your home in Kensington was repossessed by the bank and you moved into the bungalow at the rear of your mother’s property where you have resided until your remand. You have recalled that you and your mother used to spend time together attending church and going out for meals or watching films. However, more recently the relationship became strained with increasing complaints about your various habits. You had a perception that your mother was not respecting your privacy and space. You have told Dr Trainor that when you committed the offending you had been concerned for your cat and felt your mother had not involved you or communicated with you as well as she could have. You described to him that you 'responded to a stressful situation regrettably' but you declined to give any further insight as to how you felt about your behaviour. You said you were likely still intoxicated when you were interviewed by police.
21Your counsel submits that your life has been marked by significant loneliness and withdrawal from society. Alcoholism has become an increasing feature of your life since losing your job, your home and consequently much of your social life. You have instructed that you would often drink three litres of wine per day, multiple days per week on your own. You estimate that you may have drunk almost four litres of wine prior to the assault on your mother. This is not said to reduce your moral culpability, nor provide any justification for your actions, however, it provides the context for an otherwise inexplicable assault. You have told psychiatrist Dr Trainor that you drank four litres a day, six days a week.
22Specifically, your counsel put that this assault was fuelled by personal life stressors and alcoholism, those stressors being the sadness and frustration with where you have found yourself in life.
23Clearly for many years you were a productive member of society with a strong employment history until your redundancy. Your life appears to have fallen apart since then and you have had significant problems with alcohol. This is inextricably linked with your offending. Fortunately, for the most part you have had the support of your mother.
24As a result of what you did, you will not be able to return to your mother’s address and you will require support in finding alternative accommodation upon your release. There is a full non-contact intervention order protecting your mother which was put in place in May 2024 and is operational for a period of five years.
25Whilst in custody you have worked in horticulture and completed the Atlas training program and a resume writing course. You have reportedly engaged in other courses including an OH&S course. No certificates have been provided but I am prepared to accept that you have engaged in further study whilst in custody. You are said to have had no contact with family and friends.
Mental Health
26You were diagnosed with bipolar affective disorder in 2012 at the age 37. In your discussion with Dr Trainor, you indicated that you did not agree with the diagnosis. You last had contact with a mental health service in 2012 when you had been subject to a compulsory treatment order. Your last contact was with the Inner West Adult Mental Health Service in December 2012. At the time of this offending you were not receiving any mental health treatment nor medication. You still currently take no medication. Dr Trainor was unable to confidently comment on the diagnosis of bipolar affective disorder without seeing your historical records, but he notes the factors supportive of this diagnosis in terms of your hospital admissions and treatment under a CTO.
27You have not engaged in any formal counselling or rehabilitation programs with respect to your alcohol issues, however, you have reportedly been participating in an Alcoholics Anonymous group within the prison. I was informed today that you have begun engaging with ACSO some two months prior to your assessment, but this relates more to your post-release program. I have also been told that you have engaged in an alcohol and drug course six weeks ago but there is again nothing to confirm this.
28As I said, you have indicated your preparedness to continue group counselling upon your release from custody. However, concerningly, you have told Dr Trainor that you intended to resume drinking alcohol upon release, though you are open to engaging in treatment. He has determined that you meet the criteria for alcohol use disorder in remission. Alcohol intoxication is considered by Dr Trainor to have had a role in the offending by increasing your levels of impulsivity and reducing disinhibition and impairing judgment. Dr Trainor notes that the offending is unusual given its nature and your lack of prior physical violence and 'almost indifference' to the charges when asked to reflect on your conduct. He concludes that it is possible you were experiencing increased irritability and impaired judgment secondary to unmedicated bipolar affective disorder, which has not yet reached a clinically significant level but influenced your behaviour such that you were less able to regulate your emotional state.
29In Dr Trainor’s opinion, your insight into your mental health, problematic alcohol use and offending behaviour appeared poor.
30You are not said to have any clear delusional beliefs and there is no evidence of hallucinations, and your thoughts were said to be largely coherent and easily understood.
Plea of Guilty
31I take into account that you entered a plea of guilty at the earliest opportunity. Indeed, you were candid with police about your conduct and I take this into account, particularly given that you disclosed that you returned to kick your mother, something that had not been readily apparent to investigators.
32In pleading guilty you have accepted responsibility for your offending. Importantly, you have spared your mother from having to give evidence against her own son and having to re-live the experience. Your plea of guilty has a utilitarian value as you have saved the courts and the community the time and the expense of a trial. You have demonstrated a willingness to facilitate the course of justice. I do note, however, that your plea of guilty comes in the face of a reasonably strong prosecution case. Nevertheless, your plea attracts a discount in sentence.
Nature and Gravity of Offending
33
The offence of intentionally causing injury is capable of capturing conduct that ranges from a minor injury to something just falling short of a serious injury.[1] In this case it is extremely fortunate that your mother’s injuries were not more significant. It is the gross display of violence that makes this offending serious. This was a particularly serious example of this crime. It is still unclear why you, then a
55-year-old man with no history of violence, in a fit of rage brutally attacked your mother in this way. Your outburst was totally unprovoked, violent and somewhat protracted. Throwing your elderly mother to the floor is, in and of itself, a most horrendous thing to do to a lady of her age. She was bleeding from the laceration that she sustained when she hit her head on the architrave. To continue by punching her to the face and head, and then by your own admission, kicking her when she was on the ground pleading with you to stop, is reprehensible. There is no excuse for that sort of violence against anyone, let alone your 82-year-old mother.
[1] Harvey v The Queen [2021] VSCA 84.
34Being intoxicated does not excuse your behaviour. Indeed, it does not even really explain your conduct given that you have described drinking to excess daily. Possibly you have harboured some hidden resentment towards your mother over the years, but family violence, indeed this sort of family violence, will not be tolerated. Your wanton violence warrants significant punishment.
35Your victim was vulnerable, being elderly, and you beat her in her own home, a place where she was entitled to feel safe. Your conduct represents a breach of the trust that she had reposed in you as her son who was free to come and go from her home, evidenced by the fact that you had a key. There is no victim impact statement, but it is not a stretch to conclude that this must have been a terrifying experience Mrs Hyland. I accept that the offending was spontaneous and unplanned, which distinguishes it from some of the matters that the prosecution have brought to the court’s attention as being comparable sentences.
36Moreover, it is extremely disturbing that when interviewed by police you showed absolutely no remorse for what you had done. You callously described beating her, and at times you were almost gloating about what you had done. Not only did you blame your victim as being somehow deserving of your violence, but extraordinarily you told police you thought she enjoyed it – a most bizarre and frankly disturbing thing to say.
Prospects of Rehabilitation
37
Unfortunately, Dr Trainor does not provide any opinion as to your risk of
re-offending, which is perhaps explained by the fact that there appears to have been no psychometric testing conducted by a psychologist. Dr Trainor makes a number of recommendations including treatment in a residential rehabilitation setting. Your lack of insight into your offending is troubling, however, I accept that your preparedness to engage in a course, and indeed what I have been told in relation to your engagement with both ACSO and an alcohol and drug course, demonstrates that you have some, albeit I still consider at this stage limited, insight into the role that alcohol has played with respect to your offending. Even accounting for the possibility of intoxication at the time of interview, you appeared to have little empathy for your victim and indeed expressed callous indifference. This does not bode well for your prospects of rehabilitation.
38Having said that, you have very little prior criminal history, and you have accepted responsibility for your offending. I consider your prospects of rehabilitation to be reasonable and they are vastly improved if you remain abstinent from alcohol and seek and adhere to appropriate treatment with respect to your mental health.
Sentencing Purposes
39To be clear, I have had regard to each of the sentencing objectives set out in the Sentencing Act1991 (Vic). These include both general and specific deterrence, just punishment, denunciation, rehabilitation and protection of the community. In determining the appropriate sentence, I have taken into account the gravity of the offending - your culpability for which I consider to be high – and the maximum penalty applicable, and I must balance these with your personal circumstances and matters in mitigation.
40I have also had regard to current sentencing practices with respect to the charge before me. Three cases were raised by the prosecution. Although one of them relates to family violence perpetrated by an accused against his mother, that case of DPP v Gareth[2] involved an offender with an intellectual disability and a lengthy history of psychological trauma and there were significant matters in mitigation. The other two matters,[3] both of which were serious examples of intentionally cause injury, did not have many parallels with the facts here. Self-evidently, no two cases are alike. Current sentencing practices is just one of the matters to be considered.
[2] [2022] VCC 999.
[3] Harvey v The Queen [2021] VSCA 84; Rivera v The Queen [2020] VSCA 5.
41General deterrence looms large here. Other members of the community must understand that this sort of offending, this sort of family violence, will not be tolerated. It is important that the court denounces your conduct, and I do so. I also consider that specific deterrence has some application, albeit limited as you do not have much of a prior criminal history. It seems that the previous sentence you received from the courts did little to deter you from offending here, but I accept that that offending was different. I also take into account the need for just punishment, and importantly, community protection.
42I take into account the principle of parsimony, which dictates that the sentence imposed must not be more severe than necessary to achieve the sentencing purposes.
Sentencing submissions
43On the plea hearing in August the prosecution submitted that the offending warrants a term of imprisonment but that a combination sentence would not be outside the range. This appears to pay regard to the fact that you have already spent some time in custody - at that point over seven months on remand. Your counsel submits that a combination sentence would allow you the opportunity for a supported release program which would enable you to potentially receive some assistance in finding alternative housing, pro-social community programs, counselling and employment. Therapeutic conditions would help address your alcoholism and issues of violence, thus adhering to the importance of the protection of the community, namely, protecting your mother from further offending.
44There is of course utility in you having some support upon your return to the community. It is in the community’s interests to see you rehabilitated and reintegrated back into society where possible. A head sentence with a period of parole may enable your release to be supported by conditions of parole, but I cannot assume that you would get parole, indeed, I must sentence you on the basis that you would be required to serve every day of the sentence imposed. For avoidance of doubt, I take into account rehabilitation.
45The prosecution submits that the seriousness of the offending here is very high, if not at the highest level. Yet, the prosecution also submits that a combination sentence would not be outside the range, which, as I expressed during the plea, is somewhat puzzling.
46I agree that this is a very serious example of the offence of intentionally cause injury having regard to the circumstances of the offending, namely family violence, an unprovoked assault on an elderly and vulnerable woman in her own home, and one for which in the aftermath you were entirely unrepentant. You admit that you left the house and returned to give her a kick. On this I take into account that the police would not have had this information but for you volunteering it.[4] However, it is not something that materially elevates the gravity of the offence, but it does elevate it to some extent.
[4] Latina v The Queen [2015] VSCA 102
47Ultimately, I am not bound by any of the parties’ submissions on sentence, including the prosecution. It is a matter for the court to determine the appropriate sentence and I consider the offending here to be too serious for a combination sentence.
Sentence
48Mr Hyland, on the charge of intentionally cause injury, you are convicted and sentenced to four years' imprisonment.
49I fix the period before which you become eligible for parole at two years and 10 months.
Pre-Sentence Detention
50I declare 313 days pre-sentence detention as time served to be deducted administratively from the sentence that I have just imposed.
Section 6AAA
51I indicate, pursuant to s6AAA of the Sentencing Act, that but for your plea of guilty I would have sentenced you to four years and 10 months' imprisonment with a non- parole period of three and a half years.
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