R v Hare
[2012] VSC 386
•4 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 90 of 2011
| THE QUEEN |
| v |
| JUSTIN HARE |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 25-29 June, 15 August 2012 | |
DATE OF SENTENCE: | 4 September 2012 | |
CASE MAY BE CITED AS: | R v Hare | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 386 | |
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CRIMINAL LAW – Sentence after jury verdict – Intentionally Causing Serious Injury – Serious offending – Sustained attack on the victim - Prospects of rehabilitation reasonable - Sentence of 8 years imprisonment – minimum term of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr D Hallowes | James Dowsley and Associates |
HIS HONOUR:
Justin Michael Hare, on 29 June 2012 a jury found you guilty of the offence of intentionally causing serious injury to Catherine Wilkinson. You had also been charged with the attempted murder of Catherine Wilkinson. The jury found you not guilty of that offence. It is clear that the jury found that in fact you inflicted serious injury on Catherine Wilkinson, despite you disputing that, but that when doing so you did not have an intention to kill her. I must now sentence you for the offence for which you have been found guilty. The maximum penalty for intentionally causing serious injury is 20 years imprisonment.
Your offending arose in the following circumstances. You and Ms Wilkinson were living together at the time of the incident and had been for more than 12 months. The incident occurred on Christmas Day 2010 at 46 Centre Road, Morwell. In the afternoon of that day, you purchased a slab of beer and after visiting a neighbour, a Mr Vernon Ayres, you and Catherine Wilkinson returned to where you were living. You were drinking the beer. Ms Wilkinson said in her evidence she was not drinking and I accept that she was not.
She gave evidence that at some stage in the evening she went to bed and was later woken by the sound of a nail gun going off and three nails passing into the pillow at which you had fired. At that stage you were in the doorway demanding that she get you something to eat. She got up and prepared some food by adding boiling water to noodles.
You discarded the food and then punched her in the face saying she was a “dirty rat” and that you should have shot her long ago. Those blows caused her to bleed and with the nail gun you shot her in the thigh. You then shot her several other times and she had one nail in her neck and several to her legs and thighs.
After that had happened, you picked up the television and threw that over her head. The television, which was an older type of unit, had been in the lounge room and you took it into the bedroom for the purpose of using it as a weapon against Ms Wilkinson. You then obtained an electrical cord and wound it around her neck tightly. As you were was doing that, you were calling her a “bitch, whore, slut” and saying that you were going to kill her. She managed to put her hand between her throat and the cord to stop it from being pulled any tighter and you let go of it. You then pushed her to the bed and climbed on top of her, rolled her onto her side and tried to force the noodles she had prepared down her throat. She said in her evidence that you were very drunk at the time you were doing these things. You then told here to get out of your sight. She told you that if you let her get dressed she would go and ultimately she did so.
Ms Wilkinson had three serious cuts to the top of her head, two black eyes, a cut over the bridge of her nose, split lips, bruising to the face, bruising around her neck and she was numb. Dr Chow, who treated Ms Wilkinson at the Latrobe Valley Hospital, said in her evidence that left untreated the wounds to Catherine Wilkinson’s head were life threatening. Ms Wilkinson also had nail holes in her left and right thigh and her lower left leg and right foot and left foot. The wounds that she suffered were catalogued on 29 December 2010 by a doctor in Moe. I take into account only the physical injuries that were medically identified but I regard them as very serious injuries. The emotional trauma of what occurred also has significant relevance and I will come to that topic shortly.
At your trial, at which you did not give evidence, the issue raised based on your record of interview with police was whether you inflicted these injuries on Catherine Wilkinson as the Crown contended or whether, because of her fragile emotional history, she inflicted them on herself. On any view it is very difficult to imagine how that could have happened. Thus, on the evidence the jury must have accepted this was an unprovoked and sustained attack by you on her and I will sentence you accordingly.
In the Victim Impact Statement filed on her behalf, Ms Wilkinson has graphically described the effect of your attack on her. She was, in any event, an emotionally fragile person and your actions have worsened that difficulty. She says she has physical as well as emotional scars as a result of what happened and they are a constant reminder for her to deal with. She also fears retribution from you on your release. Whether or not there is any basis for her fear, I would strongly advise you to treat your release as the first day of the rest of your life and get on with the things that Mr Hallowes told me you wanted to do. You should stay out of Ms Wilkinson’s life.
Whatever mental health issues Catherine Wilkinson might have, and she accepted she has some, that is no excuse for your conduct. Mr Hallowes accepted that your conduct was inappropriate. He also accepted that that was putting it lightly. To treat as you did a person with such significant physical disadvantage as exists between you and Catherine Wilkinson, is both vicious and cowardly.
You are aged 40 years. Your younger life was in Frankston and your education finished at Year 9 when you took up an automotive apprenticeship which you completed. At the age of 21 years you were involved in a serious motor cycle accident and suffered very serious injuries. As the result of one relationship you have a son aged 18 years and of another, a daughter aged 9. You have contact with your son but none with your daughter.
A report on you was prepared by clinical and forensic psychologist Carla Lechner. Based on her testing she concluded you were mildly or moderately depressed, although she appears to conclude that this condition is a product of your present predicament. I will take her assessment of you into account in the sentence I impose on you.
By your own assessment, your relationships have been a source of stress and the relationship with Ms Wilkinson was, obviously, no exception. You are assessed by Ms Lechner as being impulsive and your personal circumstances are obviously a source of frustration to you. Your criminal history is further evidence of that, with the most significant and relevant matter being an incident also involving Catherine Wilkinson in June 2009. That also concerned an assault by you on her but it was of a significantly lesser nature than this offence. The offence charged was intentionally causing injury. In December 2009, you pleaded guilty and, as I understand, were sentenced to six months' imprisonment which was suspended for 18 months. This incident was the subject of evidence in your trial for this matter.
Earlier, in 1995 whilst you were in a different relationship, you were before the Frankston Magistrates’ Court for the offences of wilful damage and discharging a missile. That was also an incident involving a relationship and occurring as the result of you losing your temper.
To their very great credit, your parents have supported you throughout this case and have been present in court at all stages of proceedings. They provided a written document summarising your life and an undertaking to continue to support you. You are obviously close to your family and they seem to me to be your best hope after your release from custody.
A written reference was also provided by Ms Betty Jones who is a person you have known for 20 or so years and who speaks of your passion for your work and the closeness of your family. She wants you to have a second chance which she is confident you would capitalise on.
Whether you fully understand it or not the consumption of alcohol is obviously a significant problem for you and, as I observed during the course of Mr Hallowes’ submissions, something you will need to think very carefully about when you are released. If drinking alcohol makes it harder for you to stop from being angry then you must do something about the amount you drink.
This conclusion seems to be supported by the fact that since your imprisonment you have apparently been a model prisoner. Mr Hallowes has informed me that early in your time you began work in the metal department of the Metropolitan Remand Centre and have subsequently obtained “essential working prisoner status”. You are clear of drugs and that has been documented and presented on your plea. In prison so far you have also completed several courses. You are also apparently a football player within the prison and play at every opportunity.
Upon your release you hope to resume your career in the automotive industry, take proper advantage of your family’s support of you and improve and develop your relationships with your children.
I do accept that your prospects of rehabilitation are reasonable or better, subject to your issue with alcohol. Your conduct in custody so far has apparently been very good and that is a positive sign. Your criminal record, such as it is, is limited to your apparent inability to keep your temper in a domestic setting. You must deal with that. This offence is the latest and by far the most serious example and if this kind of conduct continues after you are released the punishments imposed on you will, in all likelihood, become more and more severe.
The prosecutor put forward a range of sentences that, in his submission, was appropriate for your conduct. He submitted that the head sentence should be between 8 and 9 years and the minimum term should be between 6 and 7 years. Mr Hallowes submitted that the range put forward by the prosecutor was too high but made no other submission. Given that the range of head sentences is less than half the maximum sentence, that is a difficult submission to maintain.
This is a serious example of the kind of offending that amounts to intentionally causing serious injury. It is important for me to make it clear that this kind of severe and unprovoked domestic violence will be met with severe punishment. Further you need to have it brought home to you that the consequences of such conduct will result in significant punishment.
Given the sustained nature of your attack on Catherine Wilkinson, in my opinion a maximum sentence of 8 years is appropriate. Given that there is some reason to be optimistic about your prospects for rehabilitation and your period of parole is likely to be of some real assistance to you, I fix a minimum term of 5 years before you are eligible to apply for release on parole.
Your pre-sentence detention is 618 days and I direct that be noted in the records of the court and reckoned as time already served.
I have made the disposal order and the order for retention of a sample under s 464ZF of the Crimes Act 1958.
Mr Hare may be removed.
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