STATE OF TASMANIA v JOHN ROBERT HILZINGER 14 DECEMBER 2021
COMMENTS ON PASSING SENTENCE GEASON J
Mr Hilzinger you have pleaded guilty to four counts of assault contrary to S 184 of the Criminal Code, (the indictable matters), and you have pleaded guilty to four charges of destroy property, six charges of common assault, and one charge of doing an act which caused pain to an animal which I am dealing with pursuant to s 385A of the Criminal Code.
The complainant in this matter is known to you. At the time of the offending she resided in Penguin. You also resided there. The Property was arranged in separate shack-like buildings. There were some shared areas at the property, including a kitchen, and an open fire area.
You were not in a relationship at the time.
On 22 August 2020 you and the complainant were at your respective residences. During the afternoon, you became aggressive. You threw multiple items of crockery from the sink area into a plastic tub, causing the crockery and tub to break and you accidently smashed your bong which caused you to become aggressive.
At about 6pm you and the complainant left the property to drive to Hobart, so that you could buy a new bong. You got into the complainant’s car and she began driving. You were seated in the front passenger seat.
As you drove past Turners Beach, you became angry and you kicked a speaker into the windscreen, causing it to smash. The complainant continued to drive. You hit her to the face and ear with a mobile phone two to three times, and pinched her on the chin with your fingers. You continued to be aggressive during the drive to Hobart. You threw your ugg boots and a speaker out of the car window.
When you arrived in Hobart you drove to Kmart. The complainant bought you some new shoes and another speaker, because you had forgotten your wallet.
You both drove back to Penguin. During the drive you began to kick the windscreen again, and you pushed the speaker into the complainant’s ear, pushed her head into the driver’s side window, and you pulled her hair. After you had finished a cigarette, you held the hot butt of the cigarette on the complainant’s left forearm for three to five seconds which caused a burn mark. You continued to smoke during the drive back to Penguin, and used a half smoked cigarette to burn the complainant to the left side of her face. She managed to continue driving the car. At this stage she was very afraid of you. At one point in the journey you bit the complainant to the face, pulled her hair and nose, and pushed her head around while holding her hair. She had to pull over as she could not see well enough to drive.
You arrived back in Penguin early in the morning of 23 August 2020. Once at the property you went into your shack, and then you went to the complainant’s shack with a bong you had found. You laughed and told the complainant that you knew that you had a spare bong the whole time, and that the trip to Hobart was a test. You then smashed one of the complainant’s lounge room windows and began to throw furniture around. You took some of the complainant’s clothing and you burned it using a fire pot. You then then took a broken wooden table leg and put one end of it into the fire. Once it was burning, you removed it and pressed it into the complainant’s left arm. This caused a burn. She went into her bedroom. You followed. You picked up her dog and threw it against the bedroom wall. The dog landed on the bed and ran away.
At around 4am the complainant tried to speak to you and to calm you down. You were near the fire pot at this time. You put a cast iron fire poker into the fire, and when it was hot, you removed it and you pushed it the hot end of the poker into the left side of the complainant’s face.
Later that morning, you and the complainant left the property in your car, to purchase another bong. Your car was used because the complainant’s car had been damaged by you.
You drove into Penguin. You became agitated and began throwing clothing out of the car. You were drinking an energy drink, and you spat this into the ear and nose of the complainant. You told her that you would spit the drink into her mouth and that she had to spit it out of the window. You did that and she spat it out of the window as you had directed. You then grabbed her vagina over her clothing, and punched her to the pelvis and grabbed her around the neck.
You went to the Burnie BP petrol station, where you told the complainant that she was to stay outside and watch the car, she entered the store at the service station and sought assistance. Police were called and attended. She was observed to be highly distressed and police noted that she had visible injuries to her face. You were arrested and conveyed to Burnie Police Station. You participated in a video interview where you made statements to the effect that you had had an episode the previous night and did not feel comfortable talking to police about it. You said you had put your foot pretty much through the windscreen of her car, which had shattered but that your foot did not go through the window completely; you admitted burning the complainant with a cigarette butt for three to five seconds on a single occasion; you admitted using the burning table leg to burn the complainant as you described it “like a tattoo”. You said that you just stuck it in her arm a single time. You admitted that you may have burned the complainant with a fire poker, claiming that you were twirling it around. You thought you may have thrown one of the dogs, and said that you had been awake for three or four days. You were charged processed and detained for court. You were released on bail in December 2020 having spent 100 days in custody.
There is a number of detailed reports prepared in relation to you.
You have been diagnosed with a mental health condition and you suffer manic episodes. The report from Ms Lennan reports periods of hospitalisation in Queensland in response to psychotic episodes with erratic and paranoid behaviors. She records a diagnosis of bi-polar disorder with psychotic features. In her report she describes prolonged marijuana usage in the period prior to the offending and a failure to use a stabilising anti-psychotic medication. Sleep deprivation is also noted. Relevantly she advises that these episodes of delusion and psychosis were ended by your resuming appropriate medication. You have apparently not shown similar symptoms since. She suggests that there is a reduced culpability in this case as a result of your psychosis and the delusional episode during the offending. The reduced moral culpability she describes, engages, in her opinion the first of the Verdins principles. She further opines that regard should be had to your condition for the purposes of determining the kind of sentencing that is imposed and the conditions attaching to it. She says that general deterrence should be moderated as a sentencing consideration based upon the nature and severity of your symptoms at the time of the offending. Each of those expressions of opinion is in terms of the language of principles 2 and 3 of Verdins. She expresses an opinion that each of the Verdins principles 1 – 6 is in fact engaged. As such it is her opinion that the need for specific deterrence is moderated, and that the impact of imprisonment will be greater in your case than in circumstances where a person is not suffering from your particular mental health condition. More specifically she considers that imprisonment could trigger the development of further mental disturbance and psychological disorders prolonging your recovery and destabilising your current level of life control. It is her opinion that a community based sentence such as a home detention order where you have a capacity to access ongoing physiological and psychiatric therapy in a stable environment is an important objective, with the result that the court should avoid exposing you to what she describes as the destabilising adverse impacts that imprisonment may bring.
I also have a report from Dr Reid. He also refers to those periods of hospitalisation in Queensland in response to psychotic episodes and his diagnosis is that your suffer a major psychotic illness. He describes your history as one of episodic periods of sleepiness and psychosis. Bi-polar 1 disorder with manic episodes is his primary diagnosis, and he describes schizoaffective disorder (or schizophrenia) given the deterioration in occupational and social functioning over time.
In particular from his report I refer to page 8.8 where he expresses the opinion “I think Mr Hilzinger’s mental health should be considered when determining sentencing. Returning to imprisonment would not facilitate improved mental health or rehabilitation. I feel he would be a reasonable candidate for home detention or community service orders. His current living arrangements appear stable. He has been compliant with treatment and he has the support of his mother”. Those factors compliance with treatment and family support are critical matters in my view. They are relevant for sentencing purposes as well.
I have also received a home detention report which provides further detail and the nature of the pre-sentence report and I have regard to the content of that report. It also supports principally based upon the medical evidence which I have received, the appropriateness of a home detention order in the circumstances of your condition, Mr Hilzinger.
I have received a victim impact statement. Your victim, describes having worked as a manager at St Vincent de Paul Society for about five years, a job she loved. She intended to stay there for the rest of her working life. However after your assaults when she went back to work everything there reminded her of you. She became anxious and would suffer panic attacks. This affected her work performance. She tried reducing her work hours initially to see if she could cope but it did not help and eventually she made the decision to resign. She describes no longer being able to function properly, and being unable to engage in structured employment because she is still trigged by things and cannot go into a new workplace because she does not want to have to explain why it is that she is unable to work some days. Driving her car can trigger flashbacks because a lot of this offending occurred in her motor vehicle. She has lost weight. The scar on her left arm continues to trouble her. Her ear causes her discomfort. She does not believe she can hear as well as she did before. She has lost trust in people, and she describes losing her friendship with you. She is attending counselling and continues to do that on a regular basis.
You appear before me without prior convictions and in my view that is significant because in the context of the medical evidence it becomes much easier to understand the relevance of your condition as a trigger for your offending. It seems to me and it is supported by the evidence that properly medicated and managed, you are not likely to reoffend. It emphasises the importance of submitting to appropriate treatment.
There can be no doubt about the seriousness of your conduct.
Conduct such as yours, Mr Hilzinger would in the ordinary course require a long term of imprisonment in my opinion. Such a penalty is necessary to vindicate your victim, to punish you, and to deters others. The sentencing principles that I identify, at least in so far as specific and general deterrence is concerned, do require modification on the basis of the reports that I have received. I will ameliorate the sentence accordingly. However offending such as yours requires a term of imprisonment. But the medical evidence cannot be ignored and the Court cannot proceed to sentence as if that medical evidence had not been received. Medicated you do not pose the same risk. I accept the thrust of the evidence that a term of actual imprisonment will destabilise your recovery and ultimately it is your recovery that is the objective.
The Court of Criminal Appeal has identified such order as a sentence which does carry a punitive effect, and which does have a deterrent effect.
Having given the matter careful consideration I have determined that in this instance, the imposition of a home detention order will satisfactorily and appropriately address the relevant sentencing considerations in your particular circumstances. I have determined that you should be sentenced to a period of sixteen months’ home detention. That will be subject to the usual conditions including electronic monitoring. The core conditions apply and I make the further special conditions referred to in the report, which are as follows:
- you must, during the operational period of the order, remain at [address] all times unless approved by a probation officer;
- you must attend the Community Corrections office at Burnie for induction onto this order. You must attend this service for induction during normal business and no later than 10:00 am on the business day after this order was made;
- you must, during the operational period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times;
- you must submit to the supervision of a Community Corrections officer as required by that officer; and
- you must not, during the operational period of the order, take any illicit or prohibited substances. Illicit and prohibited substances include:
- Any controlled drug as defined by the Misuse of Drugs Act 2001
- Any medication containing an Opiate, Benzodiazepine, Bupropion, Hydrochloride or Pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication.
In relation to the summary matters I intend to simply record convictions.
I make a compensation order in amount of $2,350 to the complainant.
To give effect to that sentencing order you will need to attend today the Community Corrections office in Burnie. If you fail to do that, then you are not complying at the outset with a very important part of the sentence.