Director of Public Prosecutions v Blackburn and Huggins
[2014] VCC 111
•14 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01975
CR-13-01976
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT BLACKBURN ALLAN HUGGINS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2014 | |
DATE OF SENTENCE: | 14 February 2014 | |
CASE MAY BE CITED AS: | DPP v Blackburn & Huggins | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 111 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – Armed robbery – Attempted armed robbery – Knife – Ice - Parity
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Bhai | OPP |
| For the Accused (Blackburn) | Ms M. Goldberg | VLA |
| For the Accused (Huggins) | Ms A. Sharpley | Leanne Warren and Associates |
HER HONOUR:
1 Robert Blackburn and Allan Huggins, you have each pleaded guilty to one charge of armed robbery and one charge of attempted armed robbery. These offences were committed within an hour of each other, on 20 July 2013, in two different milk bars, in what I will refer to as the first and second incidents.
2 Mr Blackburn, you have pleaded guilty to a third charge, possession of a small quantity of a drug of dependence, three grams of methylamphetamine. That was found in your sock when police arrested and searched you two days later on 22 July.
3 Mr Huggins, you have also pleaded guilty to one charge of theft of magazines valued at approximately $20 which you stole as you left the first milk bar.
4 The first incident, the attempted armed robbery, occurred at a milk bar in Cranbourne Place, Cranbourne.
5 At about 1:30 pm, you, Mr Huggins, entered the milk bar with a woman. You browsed without making any purchases for about eight minutes before you, Mr Blackburn, entered and walked directly to the counter, where you pulled a large 30 cm knife from your pants. You pointed it towards the attendant, Jia Liu, demanding cash. In fear, and without handing over any cash, Ms Liu ran to the back of the store. The three of you then left the store. As you were leaving, Mr Huggins, you stole approximately $20 worth of magazines.
6 The second incident occurred less than an hour later at a milk bar in the haplessly named Lawless Place in Cranbourne. This time, the two of you entered the milk bar together. After browsing through the aisles for approximately two minutes, you both approached the cash register and Mr Blackburn, you again produced the large kitchen knife and pointed it towards the attendant, Yi Zhou, demanding cash.
7 She did not open the cash register. Mr Blackburn turned as if to leave the store, while Mr Huggins grabbed the cash register from over the counter. Although Ms Zhou was trying to keep hold of the cash register, you managed to pull it free and run from the store. As the CCTV footage shows, you, Mr Blackburn helped pull the cables free. You both got into a car and drove off. There was approximately $500 cash in the register. This conduct is the subject of the armed robbery charge to which you have both pleaded guilty.
8 Mr Blackburn, you were arrested the day after that, on 22 July. It was then the methylamphetamine the subject of Charge 3 was found in your possession. I accept for sentencing purposes, it was for your own use.
9 Mr Huggins, you were arrested the day after that on 23 July. In your selective no comment interview you made some admissions to committing the offences and said you had been using prescription drugs prior to the offending. You too said you went there to get money to ‘get on.’ Whilst you said you cannot remember much about the two incidents, you knew the first robbery was going to happen.
10 When interviewed, you, Mr Blackburn, admitted to committing the offences. You also said you had used a lot of alcohol and ice the night prior to the offending, and that you could not remember planning or doing it. You said that you wanted to ‘get on’ and that ice was expensive. When asked about the successful armed robbery, the second incident, you said you felt like you were going to die ‘coming down’. You said you spent the stolen money on alcohol and ice.
11 You were both remanded in custody and have remained there ever since.
12 These were frightening experiences for your victims.
13 Ms Jia said that she was pregnant at the time and so her fear was not only for herself, but also for her unborn child, and she spoke of the continuing fear that she had felt, nightmares that she has experienced since, particularly about being chased with a knife.
14 Ms Zhou also spoke of her fear and of the fact that this was the second armed robbery that she had been subjected to that year - last year, and the mental and psychological effect that that has had on her. She has had a medical condition of high blood pressure and the consequences for her of the fear of being held up by you and by somebody else have led to a significant increase in her blood pressure, a decline in her health and a need for much greater medication and medical control. She had to be admitted to hospital following this armed robbery as a result of her uncontrolled increase in blood pressure. She too has nightmares, replaying this and the other armed robbery, and has real difficulty even now so long after the event, sleeping. She and her husband actually own the milk bar business in Lawless Place. They have been trying to sell it. They have been unable to, and they believe, and quite understandably, that one of the difficulties in selling it is that it seems to be a soft target, and that having seen what they have gone through, no buyers want to expose themselves into feeling threated in the way that they have been. It is important for you to understand that those are just some of the consequences of your behaviour on that day, and the consequences are long lasting and significant for your victims.
15 It is clear therefore, that subject to consideration of matters personal to you, denunciation deterrence and just punishment are important sentencing considerations. Your primary victims, both young women, were confronted by two desperate men wielding a knife, when all they were doing was doing their job, at work, behind the counter of a small shop, in broad daylight. Being held up is not, and should not be seen to be an occupational hazard for those working in small suburban shops that service the basic needs of their local community. Those who threaten the safety of people who work in such shops, by brandishing a knife at them and stealing from them, or attempting to steal their takings, must understand they will be punished for such conduct, and in a manner which appropriately reflects the community’s denunciation of such conduct. Those who think of acting in a like manner must understand that they will be punished if they do engage in such conduct and punished in a manner that should make them appreciate that if they do engage in it, that engaging in it is simply not worth it. The prospect of meagre returns from a cash register from a convenience store must be weighed against not only bearing the guilt and responsibility for the harm caused to the victims, but a significant loss of liberty for the offenders.
16 Although each of you has admitted to previous convictions, this is for both of you the most serious offending you have committed and the first time that you have been in this court and the first time either of you has experienced imprisonment.
17 You, Mr Blackburn, at age 34, have one previous court appearance for what can be characterised as minor dishonesty and driving offences, for which you received a 6 month community based order in 2011, with unpaid community work as its only condition.
18 You, Mr Huggins, at age 25, have been sentenced on two occasions by the Magistrates' Court, and two relevant occasions by the Children's Court. You have a third Children's Court conviction but that falls just outside the ten year limit, or just over ten years ago, and therefore I do not take it into account as a relevant prior conviction. The relevant prior convictions, the two later Children's Court and the two Magistrates' Court ones were for various offences of burglary, dishonesty, property damage and one of making a threat to kill. It was only in respect of the most recent of those court appearances, a consolidated hearing which took place in May 2010 that a conviction was recorded against you. On that occasion you received an eight month community based order with conditions directed to drug and alcohol treatment, psychiatric and psychological treatment, and participation in programs to reduce reoffending.
19 Since your remand, you have been dealt with for breaching that community based order by non-compliance and I think for further offending. Although it is not raised before me as prior offending for these charges, but I am told you are currently serving a six month sentence in respect of the breach proceedings arising out of the community based order, imposed in 2010. That six month sentence was imposed in late November of last year.
20 So, whilst you, Mr Huggins were arrested within a day of Mr Blackburn, Mr Blackburn has on my count, 207 days of pre-sentence detention to his credit whereas you have on my count, 130. The earliest expiry date I am told of your current sentence is 26 May 2014.
21 Each of you followed the admissions that you made when arrested with prompt plea offers. They were accepted, and without a contested committal, or without any delay in court process, or court time, you have progressed through the Magistrates' Court through the plea stream into this court and to hearing before me. Your guilty pleas are to be regarded as pleas entered at the earliest opportunity. In addition to the utilitarian value that flows from them and the sparing of the victims of having to relive the incidents and give evidence about them, I accept that for each of you, your pleas of guilty also evidence an acceptance of responsibility and remorse. The value given to those pleas should not be reduced because there was, even without your guilty pleas, a strong case against you.
22 You, Mr Blackburn, have written letters of apology to the victims. Whilst it may be of little comfort to them, whilst they may well think, its all very well to say sorry now but you should have thought of the consequences for them before you pulled a knife on two defenceless young women, one of whom was pregnant, whilst they may also think that your drug addiction is no excuse for terrifying them as you did, I accept that from your perspective, it is a genuine statement of remorse, and acceptance of responsibility, an attempt to make amends for what you did to them.
23 Each of you has acknowledged a history of abuse of ice, and attributed your offending to a desire to get more money for drugs. Each of you through your counsel acknowledge that your ice abuse is no mitigating factor in terms of your moral responsibility for committing these offences. Each of you acknowledges that you will have to serve terms of imprisonment, and each of you has expressed a determination to use your time in custody to start to work towards a more productive and drug free existence, in custody serving your sentences, and upon your release. Each of you has, it would appear, taken time to reflect since your remand, to acknowledge the effect of your ice habits on your behaviour and on your lives, and to take steps to confront that. This is concrete evidence and much more meaningful that a bare bar table assertion of remorse. It shows you are prepared to try to address the behaviour that got you into the trouble you are in, and before this court, to address that behaviour and the drug abuse that led to your offending. So, I accept too, the evidence of what you have done since your remand as evidence genuinely expressing remorse, by an attempt to change your ways and take responsibility.
24 Your drug abuse though, is no mitigating factor, and does not excuse your behaviour. Without detracting from what I have said about the weight I give to your remorse, you must understand that a desire to get money for drugs is no excuse, and provides no justification for what you did or for the fear that you caused your victims.
25 You each have good family support. That is a factor which is also encouraging when considering your prospects for rehabilitation as well as showing that apart from your drug abuse, you are people who are loved and valued, and who continue to enjoy the love and support of your families. Your prior convictions are relatively minor, and each of you is confronted for the first time with the reality of imprisonment. It appears that that has been a salutary experience for both of you and I hope will continue to act as a deterrent.
26 You have each tried to use your time productively in custody, doing, or registering to do the courses that are available to prisoners on remand. I was struck Mr Blackburn by what I was told about the way you have engaged in group counselling sessions, and the way you have pushed yourself to confront accepting that drugs are the problem, not other things, and the benefit that you have been able to articulate from listening to other people and giving your experiences some context.
27 You, Mr Blackburn, have a past history of a long term relationship and marriage which produced 3 children, and a good employment history, until in your late 20's, an injury, alcohol and drugs took their toll on you and on your family. Your marriage came to an end when you acknowledged that your substance abuse was exposing your wife and the children to a risk of unacceptable harm. Your wife has sole custody of the children, and I am told that you understand and respect the decisions that she has made to protect herself and them. Until your remand, you had been unwilling or unable to accept or take advantage of the opportunities that had been put before you to address fluctuations in your mood and your substance abuse. Since your marriage came to an end, you have re-partnered, and had another child. That, I am told is a continuing relationship, and one which along with the continued support of your parents and your brother, provides the prospect of something to look forward to, something to sustain you whilst in custody, and to look forward to re-joining properly upon your on release. You have taken to working in the kitchen at the MRC with enthusiasm, and have expressed a desire to use the skills that you are acquiring there to get work as a pizza cook upon your release. That would be apparently be a job which would accommodate the back injury that put paid to the bricklaying and other work that you had been doing until now.
28 You Mr Huggins, have had a more troubled history, with developmental delay and behavioural difficulties evident from early childhood. That led to considerable disadvantages in social engagement, in education and employment, and that has made it much harder for you to hold employment or embark upon stable relationships. You have had one relationship as a result of which, you fathered a child. That relationship came to an end and your efforts to have contact with the child, or a reasonable relationship with the child's mother, have been fruitless. It is a matter that according to Dr Cunningham, has caused you great grief.
29 Dr Cunningham assesses your cognitive functioning as being in the extremely low range, and he diagnoses you with dysthymic disorder, that is chronic lowered mood. Those matters, coupled with your long history of substance abuse brought about in part by your almost non-existent educational history and poor employment history, indicate why you were always going to be vulnerable to substance abuse and offending. I accept that imprisonment will be more onerous for you, because of your lowered mood and your low cognitive functioning.
30 Dr Cunningham recommends that you be assessed for eligibility for services under the Disability Act, and I endorse that recommendation. Indeed, it is somewhat of a surprise, given the efforts that your mother so clearly went to whilst you were a child, and through the education system, to get help for you when you were exhibiting developmental delay and behavioural problems, that you had not previously been assessed and a determination made as to whether you were eligible for services. If indeed you are eligible for support and services under the Disability Act, then that too should provide considerable support and assistance for you upon your release. However, it is clear despite those significant matters that you understood what you were doing, and that you understood that it was wrong.
31 You too have family support. Your mother wrote a loving and eloquent letter, which was very moving, and like Mr Blackburn’s parents and brother, was at court during the plea and again today on sentencing. The family support that you have also, counts in your favour.
32 Each of you has, therefore, I consider, despite the disadvantages and the substance abuse history, nonetheless, what should be regarded as reasonable prospects for rehabilitation.
33 I accept that for each of you, the sentence should, whilst properly acknowledging denunciation, general deterrence and just punishment, also provide encouragement and incentive for you to continue on the path that each of you have already embarked upon to rehabilitate yourselves and to address your substance abuse. I propose to do that by acceeding to the submissions made to me on your behalves, to allow for a considerable gap between the head sentence and the non-parole periods I am imposing on each of you. It is my hope that by providing an opportunity for release upon parole, there will be a considerable period where you could have support of reintegration into the community, that that together with the commitment each of you express at the moment to change your ways, will provide you with the support that you need upon that tricky period after release, to remain on that course, and therefore to assist you to remain substance free when you are likely to be faced with greater temptations. The effect of imprisonment, the prospect of parole, the prospect of support on parole, the prospect of return to gaol if you relapse, or reoffend, and the prospect of disappointing the hopes that your families are investing in you, I hope, will serve the needs of specific deterrence.
34 So far as the offending itself, I see no basis for distinguishing between your roles. Although you, Mr Blackburn, had the knife, you, Mr Huggins, were there with him, shoulder to shoulder, and each of you must bear responsibility for the behaviour of the two of you.
35 Because of your low level of cognitive functioning, Mr Huggins, and taking into account the fact that it was your arrest on these matters that lead to the 2010 matters, and the breach for them catching up with you so far after the event and the subsequent sentence that has been imposed on you for that, you have as I have already indicated, fewer days of pre-sentence detention that I can take into account and direct the count as part of your sentence for these offences. In order to address that, what I am going to do is first make the sentences that I impose today, totally concurrent upon the sentence that you are currently serving, and second, to allow for a greater gap between the head sentence that I impose upon you, and the non-parole period I impose upon you than the gap that I am allowing in respect of your sentence, Mr Blackburn.
36 Could you now each please stand.
37 Robert Blackburn, on the three charges to which you have pleaded guilty, you are convicted. On Charge 1 of attempted armed robbery you are sentenced to be imprisoned for a period of two years. I direct that six months' of that sentence be served cumulatively upon the base sentence which is the sentence on Charge 2. On Charge 2 of armed robbery you are sentenced to be imprisoned for a period of three years. On Charge 3 of possess of drug of dependence, you are sentenced to be imprisoned for a period of one month. That makes a total effective sentence of three years and six months and I fix a period of two years as the time that you must serve before being eligible for parole. I declare that you have spent 207 days in presentence detention, and direct that that be counted and reckoned as part of the sentence already served. I declare pursuant to s.6AAA of the Sentencing Act1991 that but for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years imprisonment, and fixed a four year term as the non-parole period. You can take a seat while I pass the sentence on Mr Huggins.
38 Allan Huggins, on the three charges to which you have pleaded guilty, you are convicted. On Charge 1 of attempted armed robbery you are sentenced to be imprisoned for a period of two years and I direct that six months of that be served cumulatively upon the sentence on Charge 3. On Charge 2 of theft of the magazines from the shop, you are sentenced to be imprisoned for a period of one month. On Charge 3 the charge of armed robbery you are sentenced to be imprisoned for a period of three years. That makes therefore for you also a total effective sentence of three years and six months and for you I fix a non-parole period of 21 months. I declare that you have spent 130 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. I declare pursuant to s.6AAA that but for your pleas of guilty I would have sentenced you to a term of imprisonment total effective sentence of seven years and I would have fixed for you a non-parole period of three years' and nine months. I declare that the sentences imposed today are to be served concurrently with the sentences you are currently serving. Can you take a seat too, please.
39 There are ancillary orders that are required to be made, and they are all by consent. I'm sorry, could you stand just for a moment again, Mr Blackburn. So far as you are concerned, I am making an order for you to undergo a forensic procedure for the taking of a scraping of a mouth in order for a sample of your DNA to go onto the DNA database. I am doing so because of the seriousness of the circumstance of the offending, and noting that it is by consent. I must inform you that if you do not cooperate in the provision of that sample which involves the rubbing of a little swab like a cotton bud on the inside of your mouth until sufficient sample has been made, that the police are authorised to use reasonable force to obtain that sample and it is at least likely that they would use the more invasive means of obtaining it, namely taking a blood sample, do you understand that? Thank you. You can take a seat again.
40 I have also been asked to make, and I make a disposal order in respect of the knife and the clothing referred to in the schedule and compensation orders. There is a compensation order against each of you, Mr Blackburn and Mr Huggins, in favour of Yi Zhou, this is in relation to the armed robbery where obtained the cash register and the money, a compensation order in the amount of $400. Mr Huggins, so far as you are concerned, I am making a compensation order in favour of Jia Liu in the amount of $20, that is the value of the magazines that you stole from the first milk bar. Are there any further orders that are required to be made?
41 MS WILKINSON: No, Your Honour.
42 HER HONOUR: Do the orders that I pronounce reflect what I said I intended to do?
43 MS WILKINSON: Yes, I believe so, Your Honour.
44 HER HONOUR: All right, thank you. I hand down those orders. I have to remain on the bench for the time that Mr Huggins and Mr Blackburn are in court, but given the fact that the family members are here what I will do is remain here and allow the family members to go and speak to them briefly before they are taken out the back. You can speak to them, I am afraid you are not allowed to touch them, but you can certainly go and speak to them now briefly.
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