DPP v Hopkins [2019] VCC 1699 (18 October 2019)

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IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK HOPKINS

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2019
DATE OF SENTENCE:	18 October 2019
CASE MAY BE CITED AS:	DPP v Hopkins
MEDIUM NEUTRAL CITATION:	[2019] VCC 1699

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Solicitor for the Office of Public Prosecutions

For the Accused	Ms C. Tripp	Balmer & Associates

1 Patrick Hopkins, you have pleaded guilty to one charge of recklessly causing serious injury, a maximum penalty 15 years’ imprisonment, and one charge of burglary, a maximum penalty 10 years’ imprisonment. These offences occurred on 3 March 2019.

2 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to say that the facts in this case are most serious and disturbing.

3 I turn to a background to your offending. You were born in 1990 and are 29 years of age at sentence. At the time of your offending, you were 28.

4 The victim of your offending, Jake Fleskens, referrable to the recklessly causing serious injury charge, was 25 years of age at the time of the offending.

5 Fleskens was within the apartment of his girlfriend, Luka Schoeman, immediately before the assault. Both those persons were known to you.

6 You and Fleskens had had a disagreement a few days prior to your offending when you were at the Keysborough Hotel.

7 During the afternoon and into the early evening of Saturday, 2 March 2019, you and Fleskens sent a number of messages to each other over Facebook. Both you and Fleskens also called each other over the same platform with both calls lasting less than a minute.

8 The tenor of those messages was that you were both continuing your posturing from a disagreement a few nights earlier.

9 At approximately 11.58 pm, Schoeman and a female friend were walking through Ross Smith Lane towards Schoeman’s apartment after being at a local poker machine venue. Schoeman saw you in the laneway ahead of her and called to you asking what you were doing in Frankston. You had a blue and white cloth pulled over the lower part of your face. You turned, pulled down the cloth and spoke with Schoeman.

10 You told Schoeman you wanted drugs from Fleskens, otherwise you were going to go to Schoeman’s apartment where Fleskens was. Schoeman told you to stay where you were in the lane and agreed to tell Fleskens to come and meet you.

11 Schoeman then left the laneway with her friend. You stood behind some bins for a short period before leaving the laneway and following her from a short distance behind her.

12 At approximately 12.01 am on Sunday, 3 March 2019, Schoeman and her friend entered the lobby of Schoeman’s apartment building in Clyde Street Mall. They then exited the lobby and entered through a vacant office which allowed access to the apartment building without the need for a security pass.

13 When Schoeman and her friend entered the apartment, they told Fleskens you were downstairs wanting to 'get' him. Fleskens left the apartment arming himself with a knife, which he put in his pants.

14 At approximately 12.12 am, Fleskens made his way to the front of the apartment building carrying part of a handrail from the apartment building’s lift, the handrail having previously been broken and had been left in the back of the lift for some time. Fleskens walked through Clyde Street Mall and up to the entrance of the apartment building.

15 Whilst that was occurring, you entered the vacant office and gained access to the apartment building. This was heard by Fleskens. As Fleskens was about to use the intercom to request Schoeman let him back into the building he saw your back as you entered the lift. (Charge 2, burglary.)

16 Fleskens used the intercom to warn Schoeman you were in the lift going up. Schoeman used the intercom system to allow Fleskens to re-enter the building and he took the stairs up to the apartment on Level 3.

17 Once on Level 3, Fleskens heard you banging on the apartment door threatening to kick the door down. Fleskens took the stairs back down to Level 1, got out of the stairwell and went into the car park to hide. He stood there waiting, hoping you would not go there.

18 While looking at the stairwell, Fleskens saw you look into the car park from the stairwell. You saw Fleskens and demanded Fleskens enter the stairwell with you. You were waving a large meat cleaver and had covered the lower part of your face with the blue cloth.

19 I note the prosecution does not suggest nor allege you entered the apartment building with the meat cleaver, it being conceded it was obtained by you after entry. I accept that was so, although that in itself raised further questions, as I discussed with counsel.

20 You ran at Fleskens, who attempted to run away. When doing so, Fleskens dropped the knife. He continued to hold onto the pole and turned to face you. You ran at Fleskens, caught up to him and swung the meat cleaver at Fleskens while he swung the pole at you. Your knife connected with Fleskens’ forearm, leaving a deep laceration. Fleskens followed through with the pole that connected with your head. Fleskens dropped the pole, ran again as you continued to swing the knife at him. (Charge 1, recklessly cause serious injury.)

21 Fleskens ran towards a woman in a red car who was leaving the car park and attempted to get her to stop and help him but she drove off and called the police.

22 Fleskens turned and realised he could no longer see you. He grabbed the pole again and went into the lifts and back to Schoeman’s apartment. When he got to the apartment, you were behind him with blood on your face. You asked to be let in so you could wash up as the police were coming.

23 Schoeman let both Fleskens and you into the apartment. Fleskens went to the balcony where he wrapped his arm in a T-shirt and you went to the bathroom and washed your face. Fleskens told you to leave, which you did.

24 At approximately 12.30 am police went to the car park at Clyde Street Mall in response to a report of two males fighting. They found a trail of blood leading them to the kitchen knife, with no blood on it, near the lifts lying on the ground. Police followed the blood trail into the stairwell and eventually through the vacant shop saw you as you left the area.

25 You were spoken to by police who noticed you had a cut on your head and a small amount of blood on your forehead. Police entered the apartment complex and noted blood on the lift floor and a smear on the third floor button.

26 Police attended Schoeman’s apartment and found Fleskens sitting on a couch on the balcony. Police took a photograph of his injuries. Fleskens was treated by ambulance officers.

27 You were spoken to by police and said you received the cut to your head when you 'fell over'. You were arrested.

28 During the search of the apartment complex, police found a large silver coloured meat cleaver with blood on one side of the blade.

(a) an 8 centimetre laceration to the back of the right mid-forearm through a muscle valley;

30 You participated in a recorded interview and largely gave “no comment” responses, which of course that was your right to so answer. You did, however, state the injury to your head was caused when you fell over. You said you had not had drugs but had drunk four Cruisers on Saturday night at Frankston. You said you did not know Fleskens. You said the backpack you had when arrested was yours, as were the red shorts in it and the blue rag. You used the blue rag to stop yourself bleeding after you had fallen over. You said you never entered the apartments and had never seen the meat cleaver before.

31 You were arrested on 3 March 2019 and have spent 222 days in custody by way of pre‑sentence detention up to and including 10 October 2019.

32 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. By your pleas of guilty, the victim of your offending has not been required to give evidence upon your trial. The prosecution summary contained a chronology. You were charged and remanded on 3 March 2019. At a second committal mention on 22 June 2019 you pleaded guilty to these two charges.

33 The prosecution conceded your plea was entered at the earliest stage, as do I, it seems upon receipt of the Report from Dr Schreiber. I accept your pleas of guilty indicate some remorse for your offending, although I am somewhat concerned by the arguable minimisation of your offending referred to by Ms Lechner in her Report to which I shall shortly refer.

34 The report of Dr Jason Schreiber dated 24 May 2019 was contained within the depositions and further details were set out therein of the injuries sustained by Fleskens (see paragraphs 2.1 to 2.5). Dr Schreiber referred to surgical treatment being required on 3 March 2019. Thereafter there was emergency specialist plastic surgical repair on 6 March 2019 as described in paragraphs 3.2.1 to 3.2.5 of his report. A number of medications were also prescribed. Dr Schreiber, I note, did not actually examine Fleskens, rather relied upon other material provided to him for his assessment. Ms Tripp on your behalf conceded the accuracy of the report referable to the treatment of Fleskens.

35 Your counsel, Ms Tripp, provided a written outline of submissions for the purpose of your plea hearing and addressed them during the course of it.

36 Ms Tripp relied upon your early pleas of guilty to these charges and your lack of prior criminal history and prospects for rehabilitation. I am very much aware of your lack of any prior criminal history and that you therefore come to the court as a person of otherwise good character to be sentenced for this very serious offending.

37 Ms Tripp submitted you had a support network and employment opportunities available to you upon your release.

38 Ms Tripp submitted that whilst in custody on remand you had used your time productively which was, she urged, relevant to your insight and prospects of rehabilitation. Before me were three Certificates of Achievement: (1) ‘Alcohol and Me’, (2) ‘Cannabis and Me’, and (3) ‘Ice and Me’. These courses are a good start to your rehabilitation and I urge you to continue to seek out courses in custody to address your drug use. You are, as I discussed with counsel, yet to be tested regarding your abstinence when back in the community.

39 Ms Tripp also referred to a report prepared by Carla Lechner dated 11 September 2019, a letter from Robert Riches dated 24 September 2019, correspondence from Kevin Ramsay and your Aunt Moeroa Rigbye dated 10 October 2019.

40 I was told something of your background and history. You are the eldest of three children. Your parents live in Queensland. They and other family members were in court to support you at your plea hearing and I accept their support is continuing.

41 You described a strained relationship with, in particular, your father but that your relationship with your siblings was 'close'. I was told your father acknowledged the home situation at times was tense. He was, however, offering his support to you. I accept you have support from family in Queensland and in Melbourne and you generally describe an unremarkable childhood.

42 You completed half of Year 10 at St James College in Bentleigh before leaving school. You said you were bullied and did not feel at peace as a student.

43 You nevertheless had a strong work ethic, it was urged, and you estimated working 80 per cent of the time since you left school. You had worked as a labourer for Probuild and in construction for CBI Construction Services. In 2013 your employment involved managing a large building. You then, however, began ice use and at the time of this offending you were not employed.

44 Ms Tripp urged you met the criteria for major depressive disorder and stimulant use disorder as noted by Ms Lechner. You were also being treated for depression and for the first time in your life you were in custody.

45 Ms Tripp was not relying upon the principles in R v Verdins & Ors,[1] and that was an appropriate concession on the material before me. All citations will be provided, counsel.

46 You reported using party drugs on a weekly basis from about the age of eighteen and falling heavily into drug use following your return to Melbourne from Queensland. You instructed there were various catalysts to that: the breakdown of a long term relationship, suicide death of your uncle, death of your grandmother and a girl who became pregnant to you and later had an abortion.

47 Whilst on remand, this is the first time you have been incarcerated and I accept there have been no 'incidents' of concern in custody.

48 You receive visits every second weekend from family, be it from Melbourne or Queensland.

49 Ms Tripp urged your prospects for rehabilitation were very good, that you did not have any criminal convictions and that you had stable accommodation and support. I am aware of those matters. Regarding your prospects of rehabilitation, they are good if you do not return to drug use. It is concerning you did not seek counselling for your drug use prior to this offending, however, you have now completed some courses, which is to your credit.

50 You have expressed remorse to Ms Lechner and others and said you had a strong desire to distance yourself from exposure to drugs by peer groups and social settings. I hope you can 'live up' to those intentions.

51 If you obtain treatment for drug use and mental health, it was submitted by Ms Tripp, you were likely to develop more socially adaptive behaviours and reintegrate into society. I agree, although that will ultimately depend on you and your abstinence from drugs.

52 Specifically addressing your offending behaviour, Ms Tripp urged that you and your victim through various messages and contact had indicated a willingness by both of you to engage in some form of physical confrontation at a point in the future. She urged that despite some premeditation on your part, this was a mutual confrontation of sorts and, she urged, fell at the lower end of the spectrum in terms of seriousness. I disagree with that assessment and place your offending closer to the mid-range or the low-range side of the spectrum, but, as I said, closer to the mid-range.

53 Ms Tripp conceded Fleskens suffered a serious injury, however urged there was no evidence of any permanent impairment. In support of her submission Ms Tripp relied upon the report of Dr Schreiber (see paragraph 9). I did not understand the statement relied upon to specifically state that there had not been any permanent sequelae of the injury. I do, however, accept there is no update regarding Mr Fleskens injury. I do not draw any conclusions one way or the other regarding any permanent impairment. I do not speculate about that.

54 Ms Tripp submitted that this matter may never have come to the attention of the authorities if it was not for the call to ‘000’ by others. Well, that may, however, have depended upon the victim seeking assistance at hospital which would have been necessary ultimately for his injury. Again, I do not speculate.

55 Ms Tripp submitted the injury you sustained could be taken into account in sentencing as 'extra-curial' punishment. I discussed that submission with her. There was no medical material to support your self-report of the sequelae of your injury. Also at best it seems any injury you sustained was at the same time that you injured Fleskens.

56 Ms Tripp relied also on the offer of employment when you were eventually released.

57 Ms Tripp conceded general deterrence, denunciation, just punishment and protection of the community were important sentencing considerations. She is correct.

58 She conceded specific deterrence was a consideration but urged that, due to your lack of prior criminal history and the insight you had shown post-offence, that need not loom large in the sentencing process. I note with some concern Ms Lechner’s reference to your lack of insight regarding the need for psychological treatment (see page 5 of her report).

59 Ms Tripp submitted whilst you were not a young offender, and not specifically relying on R v Mills,[2] you were still relatively youthful with a lack of criminal history which, she urged, led to good prospects of rehabilitation. This as I have said will depend upon your continued abstinence from drugs.

60 Ms Tripp’s primary submission on sentence was that a combination disposition involving a term of imprisonment of the time already served together with a Community Corrections Order was appropriate in all the circumstances. She submitted you had expressed motivation to engage with the Office of Corrections and a willingness to comply with any conditions the court imposed.

61 Ms Tripp’s secondary submission, without abandoning her primary submission, was a term of imprisonment of 222 days as at 10 October 2019 with a further 12 months’ imprisonment with a Community Corrections Order could be imposed.

62 I turn to the report of Carla Lechner, clinical psychologist, dated 25 September 2019.

63 She assessed you as currently presenting with symptoms of stimulant use disorder and major depressive disorder. She noted, as do I, you have never had treatment for either condition.

64 At the time of this offending, you were using ice on a regular basis and on this occasion reported also having consumed alcohol in an effort to 'stay calm'.

65 You reported that both you and Fleskens were armed with weapons. You said you struck the victim with the meat cleaver after Fleskens hit you in the head with the pole.

66 You expressed regret to Ms Lechner for your actions and injuries to the victim.

67 Further details were provided in relation to your background and history, much of which I had previously been told by your counsel.

68 You have never married, nor do you have any dependents. You were previously in an eight-year relationship but separated in 2017.

69 Your parents moved to Brisbane approximately five years ago and you lived with them in Toowoomba for three years, returning to Melbourne in 2018, finding work through your uncle.

70 You met another young lady. She became pregnant and terminated the pregnancy and you said you became very distressed and got into drugs as a result.

71 Your presentation at interview confirmed a diagnosis of major depressive disorder, which Ms Lechner concluded was in no small part due to you feeling anxious and distressed about being in custody.

72 Ms Lechner concluded you impressed as quite cognitively immature. She thought it likely your anxiety and depression often undermined your ability to think reflectively and consequentially.

73 You had kept in contact with your family via phone, such confirmed before me despite difficulties within the various relationships (see p.4 of her report; I will not further refer to them here).

74 You describe using ecstasy at age 15, last using that four months prior to being remanded. You used ice at the age of 18, then used daily after your partner’s termination of the pregnancy. The death of your grandmother also led to a further escalation of your drug use.

75 Turning to your offending behaviour, Ms Lechner noted, as do I, whilst you acknowledged your role in it, you gave a different version of events (see p.5 of her report).

76 Regarding your symptoms of stimulant use disorder and major depressive disorder, Ms Lechner concluded you would benefit from ongoing medical supervision to ensure efficacy of the medication you should be taking.

77 In addition Ms Lechner strongly recommended psychological treatment to assist you to develop adaptive mood management strategies. Your use of drugs as a form of self-medication required counselling and drug rehabilitation counselling upon release from custody.

78 In summary, Ms Lechner again referred to you presenting a different version of events to that in the police summary, admitting to causing serious injury to your victim but claiming it was in an effort to defend yourself.

79 Also before me was correspondence from Robert Riches, site manager, Probuild Construction Australia, dated 24 September 2019. He met you on a construction site he was managing approximately two years ago. You stood out from the rest of the work crew as a hard worker with a strong focus on site safety. You were responsible for general labouring duties on the third tower of the project. He worked closely with you on a daily basis over the following year.

80 He said you ensured deadlines were met, materials were ordered and on site as required, ensuring public safety and that the work crew completed all tasks in a safe and timely manner.

81 He said there were many occasions you stayed back on your own time to help Mr Riches or returned to site after you had left to rectify safety problems. He described you as calm, level headed and that requests he made of you were never too much to ask of you even when you were under a lot of pressure. He described you as an asset to the project. He would employ you again.

82 There was correspondence from Kevin Ramsay, undated, the director of KPI Construction Pty Ltd. You were an employee from May 2018 to February 2019. He described you as extremely hard working, diligent and loyal. Your work ethic was one that he would implore in all his employees. You always presented on time and tidy. You were constantly requested to return to job sites.

83 He would not hesitate to re-employ you should you decide to re-enter the labour hire industry.

84 A reference from Moeroa Rigbye, your Aunt, dated 10 October 2019. You returned to Melbourne from Queensland in 2018. You used to live at her home and at the time of this offending apparently you were living at her home, as I understood her correspondence.

85 She described having a great relationship with you; that you were respectful, considerate and helpful at home. She treated you as her own son. You were known for being comedic, stubborn and very loyal to family and friends.

86 Mr Harrison on behalf of the prosecution submitted the prosecution position on sentence was that a combination disposition of a term of imprisonment together with a Community Corrections Order would not be an appropriate disposition in all the circumstances.

87 Mr Harrison submitted that the offences were too serious for such a disposition. He referred to the need for general deterrence when sentencing you, as well as specific deterrence, and in his submission the only appropriate disposition was a head sentence with a non-parole period.

88 Turning to the circumstances of your offending, he submitted the burglary was premeditated. You entered the building, clearly without invitation. The victim armed himself when he was advised of your presence. You demanded entry. You charged at Fleskens and he received a serious injury.

89 Regarding the injury charge, Mr Harrison submitted it did not fall at the lower end of the recklessly cause serious injury spectrum, rather was towards medium. As I have said, I agree with that categorisation.

90 Mr Harrison referred to the report of Dr Schreiber, including the victim’s injuries severing of thumb stretching muscles and thumb abducting muscles (see 2.3.1 to 2.3.6 of his report).

91 Regarding Ms Tripp’s submission of 'extracurial punishment', he submitted this was not a case where you had over-defended yourself. Rather, you ran towards Fleskens with the cleaver and, at best, your injuries occurred simultaneously with those of Fleskens.

92 Regarding the extracurial punishment, Mr Harrison referred to the lack of medical material to support that submission.

93 Regarding your self-report to Ms Lechner of this offending, you gave a different version of events that did not accord with the CCTV evidence, that you minimised your involvement in this offending. Your minimisation, he submitted, was relevant to your remorse and the need for specific deterrence. I agree.

94 Mr Harrison conceded you did not have any prior history of violence nor any prior criminal history and he accepted your offending was out of character. I have already referred to my opinions in relation to this also.

95 From the report of Ms Lecher, Mr Harrison submitted there were issues regarding your insight into treatment you required. You had limited capacity to reflect on your behaviour towards others.

96 The prosecution accepted you had good rehabilitation prospects. You had family support and were youthful, albeit not young.

97 Your depression and anxiety, he submitted, was in part due to you being in custody.

98 Regarding the offence of burglary and recklessly cause serious injury, Mr Harrison conceded appropriately that there is some overlap in the criminality reflected in that offending; however, some cumulation was warranted. I agree.

99 It is always difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender.

100 DPP v McKay [3] was a Director’s appeal involving the use of a knife. Mr McKay, who was intoxicated at the time, used a knife and tried to stab one of his friends. Another friend, the victim, intervened and was stabbed once in the thigh. The court said as following:

102 As I say, facts vary case to case and it is very difficult comparing facts, but those statements I consider to have some relevance.

103 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, which I consider to be good should you abstain from drug use and receive counselling for it, I must also consider matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.

104 There is also the need for specific deterrence when sentencing you, although I note you do not have any prior criminal history. Specific deterrence, whilst still applicable, need not loom large in the sentencing process.

105 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. This is most likely tied to your ability to abstain from drug use when in the community. I remain concerned about the need to protect the community from you until such time as you become abstinent.

106 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

107 Taking into account all sentencing consideration, in my opinion to impose either the primary or secondary submissions of Ms Tripp would not appropriately reflect the gravity of your offending, notwithstanding all the matters that are personal to you and in mitigation of your sentence.

108 In my opinion, the only appropriate disposition is a head sentence with a non-parole period.

111 Charge 1, convicted and sentenced to two years and nine months' imprisonment.

113 Charge 1 is the base sentence and I direct that three months of Charge 2 be served cumulatively upon Charge 1.

114 Now, that should, if the maths is there, result in a total effective sentence of three years' imprisonment and I direct that you serve a period of 24 months, i.e. two years, before you are eligible for parole.

116 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years and six months.

117 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 229 days in custody up to and including yesterday, 17 October 2019, I want that checked, by way of pre-sentence detention in this matter, and I direct that it be entered into the records of the court. I will check with counsel in a moment.

118 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. Your counsel Ms Tripp consented to that order being made and I make the order in the terms sought. It will be for a saliva sample and I do so on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.

119 The prosecution also made application for a disposal order. Your counsel, Ms Tripp, consented to the order being made on your behalf and I make the order in the terms sought.

122 HER HONOUR: Yes, I'm not asking if you like them, just did you get them.

132 HER HONOUR: Yes, have to be entered into the records of the court. The orders, I think they've been signed, have they? No. All right. So it's an oral swab and, what, was that opposed or not?

138 HER HONOUR: No, you consented to the order, a big difference. I've got to tick a different box. You consented. All right, so it is by consent. You'll have to fill in the details, prosecution, of the judge name and so on. It's apparent there.

140 HER HONOUR: On the disposal order, that is. All right. Anything further? No, all right.

142 HER HONOUR: Thank you, you'll have to leave. All right, thanks, Mr Hopkins, out the back. Thank you.

County Court of Victoria

DPP v Hopkins [2019] VCC 1699 (18 October 2019)