Director of Public Prosecutions v Eddy

[2018] VCC 1986

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01594

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE EDDY

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2018
DATE OF SENTENCE:	28 November 2018
CASE MAY BE CITED AS:	DPP v Eddy
MEDIUM NEUTRAL CITATION:	[2018] VCC 1986

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Attempted aggravated car-jacking – Intentionally causing injury – Possess drugs of dependence – Relevant criminal record – Breach of Community Corrections Order in the course of offending – Extremely deprived childhood background – Long history of poly-substance abuse

Sentence:Convicted and sentenced to Total Effective Sentence 5 years’ imprisonment with 3 years’ non-parole period – 196 days’ pre-sentence detention already served – Ancillary order Disposal Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy (Plea) Ms C. Tulloch (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr W. Barker	Slater & King Lawyers

HER HONOUR:

1Jake Eddy, you have pleaded guilty to the following charges:

2One charge of attempted aggravated carjacking which has a maximum penalty of 20 years' imprisonment; one charge of intentionally causing injury, which has a maximum penalty of ten years' imprisonment and;

3Two charges of possessing a drug of dependence.  This offence has a maximum penalty of one year imprisonment, as I am satisfied that you were in possession of the drugs on the day in question for a purpose unrelated to trafficking.

4The maximum penalties reflect the seriousness with which Parliament regards these offences, and is one of the matters to which I must have regard.

5You were 25 years old at the time of the offending and you are now 26.

6The victim in this matter, Shu-Hua Hung, was 23 years old at the time of your offending and you were not known to each other.

7At about 5.25 am, on 16 May this year, you attended McDonald's in Hoppers Crossing.  You approached a number of customers, asking for the use of their mobile phones, as you needed to contact someone who would help you travel to Cobram.  Police were contacted because of the disturbance you were causing and you were escorted from the premises by police and told to use public transport.

8At about 6.35 am, Mr Huang parked his car in a car park near the Hoppers Crossing train station.  You opened the driver's side door of his car as he removed the key from the ignition and asked him how you could get to Frankston.  He replied that he did not know.  You then demanded that he give you his keys, and the victim refused. You then produced a flick knife.  This conduct gives rise to Charge 1, attempted aggravated carjacking.

9Without any provocation or warning, you then stabbed the victim in the leg.  The victim told you that he needed to go to hospital but you repeated your demand for the car.  The victim said, "I need help", but you left him, spitting in his direction before heading towards the train station.

10Police and ambulance attended and emergency first aid treatment was administered.  A segment of the victim's quadriceps muscle had been severed and needed to be surgically reattached.  He was required to remain in hospital for four days.  Your conduct and the consequent injury gives rise to Charge 2, intentionally cause injury.

11At about 9.50am, you were found hiding in the Werribee Hospital carpark area, which is across the road from where you committed the offences.  You were initially co-operative with police but then tried to run away.  Police arrested you shortly thereafter.

12A search of you, produced a silver coloured flick knife as well as 3.59 grams amphetamine and 85 Xanax tablets.  The latter two finds gives rise to Charges 3 and 4 on the indictment.

13You later took part in a record of interview, where you said the following things:

14You said you went up to the victim and asked to use his phone but the victim would not let you, that you went to grab it and there was, to quote you, "a tug of war" over the phone and you then gave the victim, to quote you, "an earful";

15You said that you spat towards the victim and told him quote "fuck off where you came from";

16You had been staying with your friend nearby and had just been kicked out after you and he had had a fight;

17You were asking people for a lift to Cobram to go to your dad's house;

18You called the victim a "putrid cunt" and said that "Asians are fucking hard to deal with".

19You denied demanding the victim's keys or cutting him with a knife;

20You admitted having a knife, needles, speed and Xanax in your possession when you were arrested.

21You had last used drugs before leaving your friend's house, having used a point and a half of speed.

22You said that you got your dad to sharpen your knife.

23Mr Eddy, your offending is serious and is deserving of a punishment which is just in all of the circumstances, and your conduct must be firmly denounced.  You approached a young man who was minding his own business, having just parked his car in a public car park, and you behaved in a most frightening and, quite frankly, barbaric fashion.  What is more, after you stabbed the victim, you continued to demand the car, even after he told you that he needed help.  You then spat in his direction as you left and made offensive remarks about him in the record of interview.  This aspect of your behaviour was callous and despicable.

24It is an aggravating feature of each of the offences on the indictment, that they were committed whilst you were subject to a community corrections order.  

25In sentencing you, I factor in that the attempted aggravated carjacking was rather unsophisticated and of brief duration, and there is an absence of pre-planning.  

26However, the intentionally causing injury is a most serious example of this offence.  It was entirely unprovoked, involved the use of a weapon, and the injury that was caused falls toward the more serious end of the definition of "injury".  I have viewed the photos of the injury that you caused and they were sick making.

27There is no victim impact statement and no update on the victim's condition following his surgery.  However, it takes no imagination to know that the victim would have been highly traumatised and in a good deal of pain from what you did.  I have little doubt that he will endure a good deal of anguish at the very least for some time to come.

28You have prior convictions dating back to August 2008 in the Children's Court.  You have prior matters for dishonesty, including burglary, driving offences, drug offences, offences in respect of damaging property and, most concerning, you have prior matters for violence:  In April 2015, you were sentenced to an aggregate term of six months' imprisonment, plus a 24 month community corrections order for three charges of intentionally causing injury, affray, committing an indictable offence whilst on bail, and contravening a conduct condition of bail.

29You were dealt with for contravening the community corrections order in January 2016, with the community corrections order being confirmed and continued.  However, you breached the community corrections order once more in October 2016.  Again the community corrections order was confirmed, and you were also fined in respect of breaching an interim family violence order.

30In January this year, you were dealt with for intentionally causing injury and two charges of recklessly causing injury, for criminal damage, two charges of committing an indictable offence whilst on bail, unlicensed driving, possessing a controlled weapon without excuse, possessing methylamphetamine and possessing a Schedule 4 poison, as well as failing an oral fluid test within three hours of driving.  Further, you were dealt with for breaching a community corrections order.  You were sentenced to an aggregate term of 126 days, being time served, in combination with another community corrections order, which was to be of 12 months' duration.

31It is quite breathtaking that less than four months after the sentence for the last mentioned offences was imposed, you committed the offences for which I now sentence you.

32I understand that before taking the decision to come to Melbourne in breach of the community corrections order that you were subject to at that time, you had been doing rather well on the order.  In this regard, I take into account the community corrections contravention report dated 25 May 2018.  The author states that you had found completion of the order a challenge, noting that, as at that time, you were a young adult offender as defined by the Sentencing Act 1991.

33It noted that you appeared not to be ready to address the needs that were apparent from a Forensicare report which was, apparently, to hand, including ongoing emotional trauma from past experiences, nor were you prepared to address your drug abuse issues.  The report observed that your offending had escalated, referring to the attempted carjacking offence, but based on your youth and "significant unresolved trauma", it recommended that you be placed on a community corrections order once more, upon completion of a custodial sentence which was of sufficient duration for you to engage in a transitional process.  At the plea hearing, your counsel sensibly conceded that a return to a community corrections order was not within the range of sentences available to me in view of the seriousness of your current offending.

34Annexed to the community corrections breach report were summaries of the offending which gave rise to the sentence imposed in January this year.  Your conduct which gave rise to the offences for violence were most concerning.  You behaved as a marauding hoodlum, terrorising and harming people for no particular reason.

35In making these observations, I am very conscious of the fact that you were previously dealt with for these matters, but the nature of your prior offending in fairly recent times gives me grave concern for your prospects of rehabilitation and protection of the community, in circumstances where your current offending marks an escalation in your violent behaviour.

36In your favour, I allow for a significant discount in the sentence that you would otherwise receive because of your plea of guilty at the earliest opportunity.  In taking this course, you have saved the witnesses, especially the victim, the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings.  You also made some admissions in the record of interview which saved police and prosecution the time and trouble of having to prove identity.

37Your counsel also submitted that you were remorseful for your offending, which you came to appreciate once you came down from the substances affecting you.  Your counsel told me that one of the reasons that you were in the Werribee car park was that you regretted your actions and you wished to visit the victim in hospital in order to apologise.  This is not something that you told police in your record of interview and, in my view, was a revisionist version of events that you have come up with later in order to give a good or better account of yourself.

38The fact of the matter is that the Werribee Hospital was opposite the crime scene and you were hiding there in the car park, in my view, in a bid to evade police.  It was not as if you were making enquiries at hospital reception in respect of the man you had just stabbed.  I reject your explanation for being in the car park; you were doing nothing more than trying to save your own skin.

39You wrote a letter to me which indicated some remorse and you have expressed this to Mr Cummins, psychologist.  On the other hand, you have repeatedly offended in a violent fashion, and your troubled disposition, born of your deprived upbringing, tends to militate against your capacity to feel heartfelt contrition, in my view.  

40In the end, I accept that you have some remorse for what you did, and you are certainly sorry that you are now in gaol but, in my view, you have quite a way to go in order to have heartfelt remorse and insight into the seriousness of your offending and how it impacted the victim.

41In sentencing you for the offending, I accept that there was no pre-planning involved.  I was told that you carried the knife with you for protection.  This is of particular concern in view of the fact that you have previously been dealt with for carrying a weapon.  However, I accept that the offending lacked sophistication and planning.  I take into account, and give full weight to your background, which is a most deprived one, and one for which I allow in assessing your moral culpability.

42You are one of seven children.  You grew up in the Cobram area and both of your parents struggled with alcohol abuse.  Your mother also struggled with drug abuse.  Your parents separated when you were still young, and you lived with your mother.  Your mother is now deceased, but she was extremely emotionally and physically abusive toward you when you were a child.  Some of the ways in which this occurred are set out in Mr Cummins' report, and I was also told this by your counsel in some respects, and they are most disturbing.

43You have very recently disclosed that when you were five or six and in foster care, you were sexually abused. You have not told anyone about this prior to telling Mr Cummins, psychologist, and your solicitor.  I was told that your father is still alive and is a retired fruit picker and pruner, living in Cobram, and indeed he provided a letter attesting to your deprived background, which is one of the matters I have taken  into account in sentencing you.

44You had limited schooling and, as a result, you are not literate.  After being expelled from high school in Year 7, during your second attempt to complete that year, you discontinued education until about two years later when you did TAFE for about six months.  You have worked for 12 months at a bakery in Cobram when you were 19, and you have worked on and off at Murray Goulburn, loading and unloading shipping containers since you were 23.  You were working in this capacity at the time that you were arrested.  You have been offered further work in this area when you are released from gaol, evidenced by a letter from your employer which was tendered at the plea hearing.

45As Mr Cummins has noted, you have some significant underlying issues to deal with, and while you have no formal mental illness diagnosis, you certainly have had significant well-being issues which are, no doubt, tied to your deprived and most difficult upbringing.  This helps to explain your disposition at the time of your offending before me and in respect of prior offending, complicated by your ongoing substance abuse.

46Again, I have little doubt that your substance abuse is related to your bid to self-medicate in respect of underlying issues from your childhood.  Therefore, I allow for a fairly substantial reduction in your moral culpability when sentencing you.  This is a relevant circumstance to consider when determining the weight that I ought attribute to imposing a punishment which is just in all of the circumstances. 

47I was told that you had been in a relationship with a woman who had a baby, and claims that you are the father.  The child is now in the care of DHHS as the mother also has substance abuse issues.  Subject to DNA test results coming back, you are keen to be involved in the child's upbringing.  I was told that on the day of the offending for which I now sentence you, you wished to return to Cobram urgently as you had heard that the child was to be placed in foster care. You were very concerned that this did not happen for fear that the child might be abused as you had.

48Further, I must say that if you were so concerned about the child, I would have thought that you  might have stayed put rather than travel to Melbourne in the first place.  But having said this, I factor in that you travelled to Melbourne and returned to drug abuse in circumstances where your well-being was declining, albeit that you have no formal mental health diagnosis.  

49However, I must say that your explanation for wanting to return to Cobram, again, smacks of a revisionist approach.  You did not give this explanation to the police; there was no need to be telling them about your own experience of abuse in order to express these concerns about your or the child, I should say.  Rather, you told police that you needed to go to Cobram in order to go to your father's house, having been kicked out of your accommodation in Melbourne.  In any event, whatever the reason for your return, it does not mitigate what you did.

50In terms of your drug use, you commenced this by using cannabis when you were 16.  You began drinking alcohol when you were 18 in a social context.  When you were 18 or 19, you began using ecstasy and methylamphetamine, having been introduced to these by so called friends at parties.  I was told that you have used these drugs on and off since that time, and that you were affected by these drugs as well as cannabis and alcohol at the time of the offending.  You had been using cannabis and methamphetamine in the days leading up to the offending.  According to Mr Cummins' report, you are a polysubstance user and abuser, reporting a history of dependence on amphetamine/methamphetamine, cannabis, alcohol and Seroquel, a prescription drug, which I understand you were never prescribed.

51I put you on notice, Mr Eddy, that there is a definite link between your offending and substance abuse.  If you choose to take substances in the future and commit criminal offences, then your decision to take substances may well be treated as an aggravating factor by a judge or magistrate.

52I take into account the report of Mr Cummins in a general way.  He found no evidence of mental illness, save that he observed that at interview with you, you presented as being mildly anxious and moderately depressed.  However, he remarked that you presented as being significantly psychologically damaged at interview.

53There is no impairment of mental function which would reduce the weight that I would otherwise impose on relevant sentencing principles.  Mr Cummins made an assessment of your likelihood of re-offending being moderate, remarking that the likelihood was very much linked with your ability to remain substance free when you return to the community.  He said that you told him that you had undergone an anger management course when last in prison but you could not recall much about it, and said that you needed to take part, and he said that you needed to take part in an intensive course in this regard.

54You are also in need of intensive assistance in respect of dealing with the scars of your upbringing and remaining abstinent from substances.  A copy of my sentencing remarks will be provided to the prison authorities to ensure that your needs are catered for sooner rather than later.

55You are 26 years old, and although not a youthful offender any more, you are still fairly young and, hopefully, capable of turning around.  I have done what I can to allow for this aspect but, in view of other sentencing principles, I do not give it the primacy that I would have given it if you had been younger, your offending had been less serious, and your criminal history had been less serious.

56You have a job to go to when released and some family support from your father.  You may also have a child to take care of in the event that you are found to be the father and DHHS regard you as a suitable caregiver.  I understand that you have behaved well whilst in custody, and I have also taken into account the initial positive engagement that you demonstrated with community corrections before you committed the offences now before me.  I have also taken into account the letter from your father and employer, your early plea of guilty, admissions in the record of interview, and remorse, such as I found this to be. 

57On the other hand, I must consider the seriousness of your offending, your criminal history, your apparent violent and angry disposition, albeit that this is largely due to your background and your substance abuse issues.  In the end, I find that your prospects of rehabilitation are guarded, and I must place fairly strong weight on specific deterrence and the need to protect the community.  I place strong weight on general deterrence in a bid to deter others from offending as you have.

58I have taken into account submissions from the prosecution and your counsel on sentencing and current sentencing practice; sentencing practice is but one matter to take into account in sentencing you.

59The only appropriate sentence in your case, in my view, is a term of imprisonment.  I do hope that you are able to be released on parole in a timely fashion so that further supervision can ensue in the community, but this will be up to you and the Parole Board and of course, and I cannot speculate about such matters.

60I am most mindful of the fact that Charges 1 and 2 occurred as a continuing course of conduct, and I have been careful not to impose double punishment.  However, these are separate offences with separate elements, and  warrant a level of cumulation and, as I have said, I regard the intentionally causing injury as a most serious example of this offence.

61You are convicted of the offences.  I make the disposal order which is sought by the prosecution and not opposed by you.  You are sentenced to the following terms of imprisonment:

62Charge 1, three years;

63Charge 2, four years;

64Charge 3, three months;

65Charge 4, three months.

66I direct that 12 months' imprisonment from Charge 1 be served cumulatively with the sentence on Charge 2, but that otherwise all sentences be served concurrently, producing a total effective sentence of five years' imprisonment, and I direct that you serve three years' imprisonment before becoming eligible for parole.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years' imprisonment, with a non-parole period of five years.  I declare that you have already served 196 days by way of pre-sentence detention.  Is there anything arising from the remarks, counsel? 

67MS TULLOCH:  No, thank you, Your Honour.

68MR BARKER:  No

69HER HONOUR:  All right.  Yes, thank you.  Yes, if you could please remove
Mr Eddy.  Yes, we will now adjourn, thank you.

‑ ‑ ‑