DPP v. Doherty and Hassell
[2012] VCC 2220
•22 August 2012
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted Suitable for Publication
AT MELBOURNE CRIMINAL DIVISION
Case No. CR-12-00762
CR-12-00763
DIRECTOR OF PUBLIC PROSECUTIONS
v
TREVOR DOHERTY RICHARD HASSELL
JUDGE: Her Honour Judge Sexton
WHERE HELD: . Melbourne
DATE OF HEARING: 27 July 2012
DATE OF SENTENCE: 22 August 2012
CASE MAY BE CITED AS: DPP v. Doherty and Hassell
MEDIUM NEUTRAL CITATION: [2012] VCC 2220
REASONS FOR SENTENCE
Catchwords: Affray and criminal damage-relevant criminal history-periods with no offending-drug use-mental health issues-imprisonment for 3 months combined with 12 months' Community Correction Order
APPEARANCES: Counsel
. Solicitors
For the Crown Mr P.A. Stefanovic OPP
For the Accused Doherty For the Accused Hassell
Ms H.A. Bate X
Ms F.H. Todd X
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne- Telephone: 9603 2403
150526
HER HONOUR:
.1 Richard Hassell and Trevor Doherty, you have each pleaded guilty to a charge of affray which has a maximum sentence of five years imprisonment and to a charge of criminal damage which · has a maximum sentence of 10 years imprisonment.
Summary of offending
2An agreed summary of the offending was provided by the prosecutor and is Exhibit A. I was shown in court images taken from the CCTV of the 7 Eleven store where the offences were committed (Exhibit B). I proceed to sentence you both on the basis of the summary and the images.
3I will briefly outline your participation in the charges and the apparent reasons for your involvement.
4By your pleas of guilty you have accepted that you were involved together in unlawfully fighting and making an affray and also involved together in damaging a car.
5In brief you arrived at a 7 Eleven store shortly before 1 a.m. on 25 September 2011. You, Mr Hassell, immediately began attacking a man named. Graham Tyler. You had a baseball bat and hit him with it, as well as punching him and grappling with him. You, Mr Doherty, also began grappling with Mr Tyler.
6You then both moved to a car in which Mr Tyler and his friend Phil Payette had driven to the 7 Eleven store. First you, Mr Hassell, used the bat to damage the car then you, Mr Doherty, took it from him and also used it to damage the car.
7You, Mr Hassell, pursued Mr Tyler inside the store, where you assaulted him further by punching, kicking and pulling out his hair. Mr Doherty, you joined
them inside the store brandishing the bat in a threatening way. You both left the store and you, Mr Hassell, then attacked Mr Payet, knocking him to the ground while you, Mr Doherty, were nearby and put a hand on Mr Payet's back. Mr Payet ran off and you both chased him first on foot and then in a car. It seems you do not catch up with him.
aIt seems that you were told about Mr Tyler and Mr Payet being at the store by a woman named Michelle Fraser. You, Mr Hassell, were on the lookout for Mr Tyler to confront him and you, Mr Doherty, were on the look out for Mr Payet to get back the money you had paid him earlier that day for drugs.
9It is alleged that Ms Fraser was with the two men, although in a different car, and they travelled to the 7 Eleven store. She is alleged to have telephoned you, Mr Hassell, and told you where the men were. She has been charged after this incident, but her case is at a much earlier stage, still in the Magistrates' Court.
10Mr Hassell, I am told that your reason for wanting to confront Mr Tyler is that you believed he had committed an offence by doing, what is often called, a run through of the house of a friend of yours and you were told he had pointed a gun towards your friend's child. I do not know if this offence happened, but if it did it is not up to you to deal with a person who has committed an offence. It is for the police to investigate and if a charge is brought then for a court to decide penalty.
11Mr Doherty, I am told that you had only met Mr Hassell early on 24 September and through him met Mr Payet, also for the first time. You were consuming alcohol and drugs but wanted more and you paid Mr Payet $100 to get you some drugs. You had not seen him since earlier in the day and you were looking for him to get your money back I am told.
12So it ha'f)pened that you two were still together and the two men you were looking for were together and it all came together,· apparently, after a
phone call from Ms Fraser at the 7 Eleven store at 1 a.m.
Impact on the victims
13Neither Mr Tyler nor Mr Payet wanted to make statements to the police about the events or the impact on them of your attack. I take into account that they both received bruising and Mr Tyler also had a wound on his shin although it is not known exactly how that was caused.
14The owner of the car which you damaged is Elizabeth Lewis, the partner of Mr Payet. Ms Lewis made a statement in which she says the windscreen and driver's window were broken. In her statement she also says that you, Mr Hassell, had been apparently staying at her house leading up to these events as you had apparently asked Mr Payette for a favour. As she also says in her statement your actions in damaging her car were no way to repay that favour.
15In my view Mr Tyler, Mr Payet and Ms Lewis are not the only victims. An affray is about unlawful fighting which causes terror to innocent bystanders. Mr Saoud Sahid who was working in the 7 Eleven store, alone, was caught up in these events and it must have been frightening for him. He called triple 0 and witnessed the whole thing, both inside and outside of his store. Although he has not provided a victim impact statement I do not need one to tell me that your violent attack on people and property would have had an impact on him. Itake that into account in deciding the appropriate penalty.
Basis for sentencing
16Your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt.
17I find that there was a degree of preplanning as you had sought help from Ms Fraser to find Mr Tyler and Mr Payet and you arrived with a baseball bat.
18You both actively used the weapon either with actual contact or as a threat to
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Mr Tyler and to damage the car. You showed no regard for anyone who was or might have been in the vicinity when you launched these frightening attacks on people and property and there were a number of victims of your offending, both direct and indirect.
19note that although summary jurisdiction was refused in the Magistrates' Court, the prosecution is of the view that these crimes could have been appropriately dealt with in that court. I find that the crimes you have committed are certainly serious enough to be in this court and are in the middle of the range for these types of offences.
Principles and matters which apply to both
20I will deal firstly with the matters which apply to both of you, then I will turn to deal with factors specific to you, Mr Hassell, and then come to you, Mr Doherty.
21There are some mitigating factors which I must take into account. The first of these is the fact that you have both pleaded guilty. You are each entitled to have that fact taken into account in your favour and I do so. By your pleas the community has been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence. Your pleas of guilty are of some significance given that the main victims did not seem willing to be witnesses if the case had gone to trial.
22You both indicated at an early stage that you were willing to plead guilty. take that as a sign of remorse by both of you. As required by law the sentence I intend to impose on each of you is far less than would have been imposed had you been found guilty after a trial.
23The next matter I take into account in your favour is that it has taken longer for the case to reach sentencing stage than might otherwise have been because the case was in the summary stream of the Magistrates' Court before being transferred here, plus there may have been some uncertainty for you as a
result of that transfer. However the hearings in this court are within 12 months of your offending which is not a long time for court process these days.
24Finally, in respect of each of you, the principle of general deterrence is of great importance in offending involving violence and use of weapons and means that my sentences for each of you must seek to deter others from committing such crimes.
25To a lesser extent' my sentencing must also seek to deter you from reoffending for the reasons I will outline for each of you shortly.
Matters personal to Mr Hassell
26Mr Hassell, you are aged 39 years and were aged 38 at the time of the offending. Your background is contained in the written submissions provided to me by your counsel (Exhibit H5) and also in the neuropsychologist report of Isabella Walters (Exhibit H1).
27In brief, you had a difficult childhood and lived on the streets from the age of
13. You began using drugs and alcohol at a young age. You have had three significant relationships with a daughter born from the first of these. You had periods where you worked, had a loving relationship and a stable lifestyle, but after the breakdown of the last two relationships you have found yourself living on the streets again and abusing drugs and alcohol.
28In the year leading up to the offences for which I am to sentence you, you began using and became addicted to the drug "ice" and I am told that you began to self destruct, provoking others to act violently towards you to get yourse f injured or even killed. You received some serious facial injuries in an assault the month after these offences in one of these attempts to provoke others. I was provided with the hospital records of these injuries.
29The neuropsychologist Ms Walters assessed you and provided me with the opinion that you are very depressed which appears to influence your
decision-making and also that you have a very limited reasoning capacity compared to an average person. However she did not think that you had acquired a brain injury from the serious assault.
30Your counsel submitted that" I should take these factors into account in reducing your moral culpability and that I should also accept that these factors will make imprisonment harder for you.
31You have been in prison once before for three months in 2000 and you have been on remand for offences committed after the offences for which you are to be sentenced today. You have 17 charges in your criminal history committed before these offences from 1990 to 2000 and, according to the criminal record, you seem to have successfully completed two suspended sentences of imprisonment, a good behaviour bond and a community based order, although you did breach another community based order.
32The most significant and relevant matter in your criminal history for today's sentence is your first one; for causing injury in 1990. It is notable that you had not been in trouble for more than 10 years before committing the offences for which you are to be sentenced today.
33It is clear that when you are working and with a stable lifestyle and accommodation you are able to stop abusing drugs and alcohol and be a useful member of the community. Before you were arrested on these offences you took some steps by contacting the Peninsula Drug and Alcohol program, but I have no information that you went ahead with the appointment after you were released on bail.
34You also took steps to re-establish a relationship with your father and you lived with him before you were arrested on the next lot of charges in May 2012. Apparently he has confirmed that you can live with him again on your release.
35While on remand you have completed a number of courses and signed up for others and you have a billet; that part is good. What is not so good is that you are alleged to have been involved in some incidents while in custody, have tested positive on a urine screen and have told a corrections officer that you are not willing to give up cannabis use. I accept that the incidents may not ultimately be proved against you and they are minor in any event, however the last two matters remain of some concern to me.
36On 20 August, two days ago, your pending charges were dealt with in the Magistrates' Court and on the single charge of recklessly causing injury you were sentenced to five months imprisonment with 95 days declared as pre-sentence detention. Although that is subsequent offending, it is of relevance.
37On the charges for which am to sentence you you were assessed for a community corrections order, but found not to be suitable. It is still an order I can make if I decide it is the most appropriate sentence. I will return to sentence you at the end of these remarks.
Matters personal to Mr Doherty
38Turning now to Mr Doherty. You are now aged 42 years and were aged 41 at the time of the offending. Your background is contained in the written chronology provided to me by your counsel (Exhibit 01).
39In brief you also .had a difficult childhood. You were apparently sexually abused at the age of six by a family friend. You left school early and by the
·age of 17 you were in trouble and received a sentence of detention in a youth training centre in your first court appearance.
4bYou went on from there to commit more serious offences culminating in you receiving a sentence in 1992, when you were aged 21, of 12 years imprisonment with a minimum of 10 years for intentionally causing serious injury, aggravated burglary and criminal damage.
41 You have 24 charges in your criminal history, over 11 appearances from 1996 to 2011, with a number of injury charges being relevant to the sentence I will pass today.
42After your early release in 1996, there was a period of seven years with no offending. While you were in custody, you committed yourself to self improvement and you realised that this lay through education. You obtained a number of qualifications and certificates but most impressive of all you began a bachelor degree and completed your first year while still in custody. On release you transferred to the University of Melbourne and graduated in 2000. This is an outstanding achievement for any person who has previously only had a formal education to Year 8. It is even more remarkable for a person to achieve whilst undergoing a prison sentence.
43You published a paper, "The acquisition of cognitive skills as a means of recidivism reduction; a former prisoner's perspective" and presented it at a conference. However, as you now know, the acquisition of cognitive skills was not enough to keep you from becoming a recidivist.
44You committed offences in 2003, 2005 and 2010. I am told that you had periods of employment and stability but you struggled with basic life skills and returned to drugs and alcohol.
45Despite this you had periods when you were doing well and between 2006 and 2008 you were employed or volunteered in a variety of positions in which you spoke publicly. In particular you became involved in Whitelion, an organisation supporting young people in the Youth Justice system as you once had been. In fact early on, you met a Mr Richard Downing who is still a supporter of yours and he gave evidence on your behalf.
46Your adoptive father had died while you were in prison in 1993 and your adoptive mother became ill in 2009 and died in 2010. You lived with her as her physical health deteriorated, but apparently you were already not coping
and your mental health suffered. You stopped working and went on the disability support pension. By 2011 you had lost contact with your sister and went off the methadone program. By later that year you had relapsed again into drug use, you committed these offences and became increasingly unwell.
47In November 2011 you were admitted to Peninsula Mental Health Service where your admission diagnosis was bipolar disorder/hypomanic phase. On your release you were interviewed by the police about these offences. You are now managed with medication through Frankston Healthcare.
48A psychologist, Dr Cunningham, assessed you in March this year and thought your mental health assessment was consistent with the presence of bipolar disorder. He formed the opinion that this disorder would have impaired your ability to exercise appropriate judgment.
49I received a bundle of references from people who have known you when you are doing well and I have received a reference from your sister, with whom you have re-established a relationship, and, as I said, heard evidence from Mr Downing both of whom have known you through good times and bad. You also gave evidence.
50Through your connection to the Whitelion organisation there is a possibility of employment, ·but you recognise, correctly I think, that your first priority is to learn how to cope with living responsibly in the community.
51You were assessed for a community corrections order and found to be suitable. It is still a matter for me however as to what the appropriate sentence is.
Submissions
52The prosecutor submitted that for both of you an immediate term of imprisonment is the only appropriate sentence, but that this could be suspended in part.
53Counsel for Mr Hassell submitted that with your early plea of guilty, your mental health problems and reasonable prospects for rehabilitation based on your previous ability to live a stable, drug free lifestyle, together with the support from your father, any term of imprisonment should be suspended in part and moderated by your mental health issues.
54Because of your pending charges, a community corrections order was not originally put forward, but was submitted to be a possible option; that option was confirmed today after your charge have been dealt with.
55Counsel for Mr Doherty submitted that with your early plea of guilty, remorse as shown in your police interview, no offending since these events, your mental health problems and reasonable prospects of rehabilitation based on your managing your drug problem with medical assistance, support from your sister and long term friends and possible employment an appropriate disposition would be a wholly suspended sentence and · a community corrections order.
56As it happens, the law changed on 18 August and that combination of sentencing options is no longer available. A community corrections order riow can only be combined with a sentence of imprisonment if it is less than three months and is not suspended.
Co-accused and parity
57The prosecutor submitted that you should be treated equally for sentencing purposes on the basis that although Mr Hassell's role was greater, in that he was more directly involved in the offences, Mr Doherty has a more significant and relevant criminal history. Counsel for both men submitted that there were some differences between you.
58Counsel for Mr Hassell submitted that there were differences in that he had been offence free for more than 10 years, has a less significant criminal record and his sentence may be moderated if the Verdins principles apply. ·
59Counsel for Mr Doherty submitted that not only was his a lesser role, he had made full admissions and had not offended since.
Findings
60I accept the prosecutor's submissions on parity and I am satisfied that you should be treated equally in the sentences I am about to pass.
61I do not accept that the Verdins principles apply to moderate the sentence of Mr Hassell, nor make his imprisonment more onerous. While his limited reasoning capacity may be long standing, Ms Walter's assessment was in June and I have no direct evidence relating either that limited capacity or Mr Hassell's depression to the time of the offending in September last year. However these factors are relevant to my sentencing discretion in respect of the way Mr Hassell may be affected by further imprisonment and I will take them into account in determining the appropriate sentence.
62Counsel for Mr Doherty did not seek to apply the Verdins principles, submitting that his declining mental health was background to the offending and should be taken into account as a relevant factor also existing at the time of sentence. I accept these submissions ..
63In my view, the principles of specific deterrence are still of some relevance even though you have both had significant periods of time where you have not offended. In recent years you have both reoffended.
64Further, because of the level of seriousness of the offending, combined with the relevant criminal history of you both, I am satisfied that a term of imprisonment must be imposed on each of you. I have carefully considered whether that term should be suspended but I have decided that it should not.
65However I accept that for each of you, you require some treatment for your mental health issues and assistance to avoid getting into a situation where you could reoffend. Although you are both of an age where you should know
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· DPP v. Doherty and Hassell
better, your backgrounds are such that you both have difficulties in coping with life when things go badly for you. Further, I am satisfied that it is necessary for me to review the progress of each of you during the community corrections order.
66I therefore propose to sentence you both to three months imprisonment on one charge and release you on a community corrections order for 12 months on the other. In my view such a sentence meets the many purposes of sentencing each of you including general and specific deterrence, just punishment and the protection of the community by promoting your rehabilitation.
67I do not think that the legislation prevents me from making this order for Mr Hassell. Although he is undergoing a term of imprisonment of five months it is not a sentence imposed "on this occasion". 1 Further, with the pre-sentence detention that has . been declared it is likely that that term of imprisonment will be completed in three months or less from today.
68· In the event that I am wrong and the meaning of "the sum of all terms of imprisonment"2 includes terms I am not imposing today, to ensure the total sum is no more than three months for Mr Hassell I propose to order concurrency of today's sentence with the sentence he is undergoing. That is a generous outcome in my view.
69I need to explain to both of you the te'ims of the community corrections order as I can only make it if you agree.
70If I make this order there are certain things that you must do and certain things you must not do. What you must do is: first the order will ·start on the day you are released from custody; within two days of your release you must go to a
· Community Correction Centre closest to where you will be living. You will be
1 Seel s.44 Sentencing Act (as amended from 18/8/12)
2 ibid
given the address before you leave prison. It will be necessary for a community corrections order to be signed for the purpose of the documentation today as. that is unfortunately inflexible and that will be relevant to the assignment of a Community Corrections office. However I note that s.48P Sentencing Act provides that if it is not convenient that the offender should report to the place specified in the community corrections order, you may be directed to report to another place, so that will be determined on your release.
71Next you will be allocated a Community Corrections officer who will look after you for the period of the order. You must report to that officer when you are told to do so during the order. You must also tell that person if you change your address or if you get a job or change that job. You must also do what the Community Corrections officer tells you to do. So they are the things that you must do.
72What you must not do during the order is commit any offence which could result in a prison sentence; you must not leave Victoria without the permission of the Community Corrections· officer during the order and I am going to put some extra conditions on your orders. Those conditions will be that:
- for the duration of ·the order you be under supervision. of a Community Corrections officer;
- you perform unpaid community work in the amount of 100 hours over the 12 months;
- you undergo assessment and treatment, including testing, for drug and alcohol abuse and dependency;
- you undergo assessment and treatment as to your mental health which may be in a hospital or residential facility;. ·
- you undergo programs or courses aimed at addressing the factors relating to
your offending behaviour; and
- you must return to court so. that I can see how you are going about three months after you start the community corrections order.
73If you do not keep all of these conditions you can be charged with an offence and you will have to come back to court. If you commit another offence that will breach this order. Do you understand that, Mr Hassell?
74PRISONER HASSELL: Yes.
75 HER HONOUR: Do you understand that, Mr Doherty?
76PRISONER DOHERTY: Ithink so, Your Honour.
77HER HONOUR: That will almost certainly mean that you will get another term of imprisonment, so do you both understand what might happen if you commit another offence during the 12 months of the order or if you do not keep the conditions? Mr Hassell.
78PRISONER HASSELL: Yes.
79HER HONOUR: Mr Doherty.
80PRISONER DOHERTY: Yes.
81HER HONOUR: You are each convicted and sentenced as follows:
On Charge 1 of affray you are released on a community corrections order for 12 months with the conditions that I have outlined.
On Charge 2 of criminal damage three months imprisonment.
82By law the community corrections order will commence on your release.
Community Corrections are directed to notify me of the actual commencement date as that is dependant on when the corrections authorities release you from custody. The date for you to return to court for me to check on your
progress will be about three months after that. That is uncertain, but I will set the time and date as 9.30 a.m. on 20 March 2013.
83I require that the Community Corrections officer who is in charge of your case provide me with a report on the steps taken by them for fulfilment of the conditions and your progress. That report is to be provided by 18 March 2013. I do not require any other person to attend other than Mr Hassell and Mr Doherty, but, of course, you may be legally represented if you choose and the prosecution may attend if they wish.
84I declare that the time you, Mr Hassell, have already spent in custody for these offences is 16 days, not including today, and that is to be deducted administratively.
85I direct that the sentence imposed on Mr Hassell today be served concurrently with the sentence he is undergoing.
86In the event that it becomes necessary to revisit this sentence I note that, Mr Doherty, you have spent o days in custody for these offences.
87If you had not pleaded guilty but had been found guilty after a trial the sentence I would have imposed on each of you is three years imprisonment with a minimum of two years. Yes, are there any questions?
88MS TODD: Only one thing I feel I should just briefly mention. It doesn't make any difference, I don't think it presents any technical problen]S, but the matter Mr Hassell was dealt with for on Monday attracted a period of six months, Your Honour said "five months" in Your Honour's reasons. Five months on one offence, Your Honour, and there was another month.
89 PRISONER HASSELL: Yeah, two months, one month concurrent.
90HER HONOUR: Yes, I see. On the extract of order that I have there are a number of charges which are withdrawn which, of course, I have not taken
into account.
91MS TODD: Yes.
92HER HONOUR: On the recklessly cause injury there was a term of five months and then it says, and I see that now underneath, "effective total state term imposed is six months". I have no record of any charge before me on which that month was given and that's why I looked at the five months.
93MS TODD: I can see how that's happened, Your Honour, and it's for some reason not included in this bundle. There was another charge, Your Honour, and I understand it was tWo months with one month concurrent making that an effective total state term of six months.
94HER HONOUR: Yes, well, I'll amend my remarks to say "six months imprisonment", but, as you say, that should not make any difference because the period of 95 days that has been taken into account should still bring Mr Hassell's remaining term to be Jess than three months on that charge and there has been total concurrrency ordered in respect of the three months I have imposed today.
95 MS TODD: As Your Honour pleases.
96HER HONOUR: Yes, thank you. Yes, I thank counsel for their assistance and Mr Hassell and Mr Doherty may be removed.
97MR STEFANOVIC: If the court pleases.
98HER HONOUR: Just before they go we do need to have you sign the community corrections orders which are being printed out. I'll allow counsel to approach the Dock to explain those conditions to their clients if you wish to do so.
99MS TODD: Thank you, Your Honour.
100MS BATE: Thank you, Your Honour.
101HER HONOUR: Yes, I will now have my associate provide to Mr Hassell and Mr Doherty the community orders for them to sign. ·Mr Hassell and Mr Doherty, this is not for discussion. I am now providing you with orders, if you do not agree then I will be resentencing you. I can only put you on a community corrections order if you agree. The orders are now to be provided to you to sign and you can ask counsel questions about the conditions if you wish. Have those orders been signed?
102MS BATE: Yes, Your Honour.
103HER HONOUR: Yes, could I have no-one else approaching Mr Hassell and Mr Doherty, thank you. I will now sign those orders. Yes, thank you, Mr Hassell and Mr Doherty may be removed.
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