Director of Public Prosecutions v Espagne

[2023] VCC 1703

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02202

CR-22-02377

CR-23-01335

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN ESPAGNE

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2023
DATE OF SENTENCE:	20 September 2023
CASE MAY BE CITED AS:	DPP v Espagne
MEDIUM NEUTRAL CITATION:	[2023] VCC 1703

REASONS FOR SENTENCE

---

Subject:  Criminal Law

Catchwords:

Legislation Cited:

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160

Sentence:  32 months imprisonment non-parole period 21 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms MacDougall	Office of Public Prosecutions
For the Accused	Mr Morgan	Clancy Solicitors

HIS HONOUR:

1Hayden Espagne, you have pleaded guilty to the following charges, which carry the following maximum penalties:

Charge No.	Offence	Maximum Penalty	Additional
Indictment N10712140A.1
1	Common assault contrary to Common Law	Level 6 imprisonment (5 years maximum)
Related summary charge 7	Drive whilst disqualified contrary to s 30 Road Safety Act1986	240 penalty units or 2 years imprisonment
Related summary charge 8	Possess a prohibited weapon without an exemption contrary to s 5AA Control Weapons Act 1990	240 penalty units or 2 years imprisonment
Indictment N10712140B
1	Prohibited Person Carry Imitation Firearm contrary to s 5AB(2) Control of Weapons Act 1990	1200 penalty units or 10 years’ imprisonment
2	Possession of a Drug of Dependence contrary to s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Small amount of Cannabis)	Subject to s.73(1)(a) 30 penalty units or level 8 imprisonment (1 year maximum) or both
3	Assaulting an Emergency Worker on Duty contrary to s 31(1)(b) Crimes Act 1958	Level 6 (5 years’ imprisonment maximum)
4	Threatening to Assault Emergency Worker contrary to s 31(1)(b) Crimes Act 1958	Level 6 (5 years’ imprisonment maximum)
Related summary charge 4	Commit indictable offence whilst on Bail contrary to s 30B Bail Act 1977	3 months imprisonment or 30 penalty units
Indictment M12639756
1	Theft contrary to s 74(1) Crimes Act 1958	10 years imprisonment (Level 5) .
2	Blackmail contrary to s 87(1) of the Crimes Act 1958	15 years imprisonment  (Level 4)

2You have admitted your criminal history. I shall say more about that later in these remarks.

Circumstances of Offending

Indictment M12639756

3The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:

4At about 3.00 am on 21 December 2021 you arrived at the home of Drew Ann McArdle.  You arrived with Dalton Espagne and Lee Armstrong and another two unknown offenders.  Ms McArdle was at home with Zachary Cogger and Jorja Dempster.

5The victim, the three accused and Mr Cogger were all known to each other. The victims saw you and others drive up the street in a blue Holden Commodore and park across the driveway.

6You and the two co-accused then started kicking at the front door of the house but you were unable to get access. Ms McCardle dialled Triple 0 and saw Dalton Espagne standing at the kitchen window saying to Ms McArdle 'pay me my money'.

7When Mr Cogger opened the door, he saw you and the two accused putting Ms McArdle's golden retriever dog, Milly, into the back of the Holden Commodore. 

8Mr Cogger questioned what you were all doing.  A fourth man then got out of the front passenger seat of the vehicle holding a pistol. Mr Cogger then ran back inside the house and shut the door.

9You and the co offenders then drove away in the Holden Commodore with Milly (Charge 1 theft).

10Ms McArdle then drove to Dalton Espagne's house.  On the way Ms McArdle telephoned Dalton and asked if he had the dog, to which he said that he did.  He stated that he wanted $2,000 (part of Charge 2 – Blackmail). Ms McArdle also heard Lee Armstrong state 'I want my money as well'.

11At the property, Ms McArdle asked to see the dog.  You stood close to Ms McArdle and stated 'you’re going to have to pay now or I'm gonna slit your throat'.  (Part of Charge 2 blackmail).  Ms McArdle saw the dog and made an unsuccessful attempt to transfer the money by phone.

12Throughout the day Ms McCardle and Mr Cogger telephoned and sent messages to Dalton Espagne and to Lee Armstrong. Lee Armstrong threatened to harm Milly.

13Ms McArdle then went to Lee Armstrong's house on the afternoon of 21 December to speak to him about the dog. Whilst they were together, she transferred $2,000 to secure the return of the dog.  Lee Armstrong then told you and Dalton Espagne to bring the dog to his house.

14You and the two co-accused then went to an ATM and withdrew $2,000.  You returned to Mr Armstrong's home address with the dog and it was handed over to Ms McArdle.

15You were arrested on the afternoon of 21 December 2021 and made a no comment record of interview.

16You have not spent any time in custody for this matter.

17Dalton Espagne was sentenced to 11 months' imprisonment for this offending. Lee Armstrong was sentenced to 4 months' imprisonment in combination with a CCO.

Indictments N10712140A.1 and N10712140B

18Again, the Crown tendered the summary of prosecution opening, this time as Exhibit B. A summary of your offending is as follows:

19Your co-offender in the previous matter, Lee Armstrong, lived at an address in Benalla. Behind the house was a large tin shed which was accessed by a driveway running down the side of the house.

20On 9 April 2022 in the mid-afternoon, you went to Armstrong's address with co-offenders Benjamin and Finnis. You drove there at a time when you were disqualified from driving (Summary Charge 7 drive whilst disqualified).

21As you had served a period of imprisonment in the qualifying period, you were prohibited from possessing a firearm. You walked down the driveway with Benjamin and Finnis and you produced an imitation firearm (Charge 1 on indictment N10712140B).

22Also present on the property was a mutual friend William Gipp. You shouted at him, asking him where Lee Armstrong was.

23Armstrong was in the shed. Your assault was constituted by putting Armstrong in fear by coming up the driveway and producing the firearm (and on the other indictment N10712140A.1 Charge 1 common assault).

24Benjamin was carrying a baseball bat and physically assaulted Armstrong with it. Armstrong suffered an injury to his nose and face. Benjamin was sentenced to 3 years with 18 months to serve on charges of aggravated burglary and assault. You are not charged with those offences, and you were not charged as being complicit in his assault.

25You, Armstrong and Finnis returned to your car and drove away.

26Neither Gipp nor Armstrong made a complaint to police. The matter was reported to police by a neighbour, and it was captured on CCTV footage.

27You were arrested about an hour later. You were searched by police and found to be in possession of a small amount of cannabis (Charge 2 possess a drug of dependence) and a flick knife (Summary charge 8 possess prohibited weapon).  Due to a health concern, you were taken by police to the Wangaratta Hospital. You became aggressive and violent towards staff and police. You refused to be handcuffed and you spat at a police member (Charge 3 assault emergency worker on duty). You were remanded in custody after that time.

28At the Wangaratta police station, you became aggressive and violent towards the informant. You uttered racial abuse and threatened to assault him (Charge 4 threat to assault emergency worker on duty).

29These circumstances together constituted committing an indictable offence whilst on bail (Summary Charge 4).

30You have now spent 528 days in custody by way of presentence detention, excluding today. I will reckon that period as already served.

31I turn now to consider the objective gravity of your offending and an assessment of your moral culpability. 

Objective Seriousness / Moral Culpability

Theft / Blackmail

32The objective seriousness of the offence of blackmail is marked by the maximum penalty of 15 years' imprisonment. By this alone, Parliament has intended that the offence is viewed as a serious one.

33In your case, your offending involves the removal, that is the theft of a pet dog, unless the demands of your co-offenders were met. In this way, you, that is all of you, held all the cards. The animal was in the possession of you and your co-offenders, so whether you actually intended it or not, (and I was told on the Armstrong plea that no harm was ever intended to the dog) you had the power of the perception to make good on your threats to have harmed the dog.

34Furthermore, the offending ran over several hours.

35The threat that you made to Ms McArdle is particularly serious. I accept that you had no intention of actually causing harm to Ms McArdle and I further accept that you were not armed and you did not make a move towards her.

36When Ms McArdle attended at your co-offenders' house to check on the condition of the dog, it was made apparent to her that she did not have the power or means to take the dog back unless the money was paid. This is the only conclusion that can be drawn from the threat of violence you made to Ms McArdle. I do not use this threat to aggravate the circumstances of your offending, but to simply make it clear what I meant when I said that you held all the cards. Ms McArdle believed that she could not secure the release of the dog without paying the money demanded by your co-offenders.

37I note that your role was not as prominent as that of your brother Dalton or that of Lee Armstrong. You were not found in possession of money and although you made a threat to Ms McArdle, you did not demand money for yourself.

Imitation Firearm/Assault/ Emergency Worker offences

38There is a strong public interest in keeping firearms and imitation firearms out of the hands of criminals. Your unexplained possession of this weapon and your use of it on this day must be met by principles of deterrence, denunciation and a measure of protection of the community.

39Beyond that, the circumstances surrounding the assault are serious but must be kept in perspective: that is, your victim was an associate of yours with whom you had previously committed the dog/blackmail offence; but there is no evidence or information from him, or objective evidence from the CCTV footage, or from the neighbour who reported the matter, as to the effect or level of fear or apprehension instilled in him by your assault. Moreover, he was actually assaulted by your co-offender Benjamin and not by you; Benjamin hit Armstrong to the face with the baseball bat; causing his nose to bleed.

40I will be careful not to double punish you for being a prohibited person in possession of the imitation firearm and the assault which was perpetrated by brandishing the weapon.

41Armstrong and Gipp did not cooperate with the police and, in light of the footage obtained, it is apparent that they told out and out lies about what occurred when you and the others arrived.

42The more serious assault was perpetrated on the police officer who tried to control your violent outburst at the Wangaratta Hospital. Further, the racial abuse of the informant and the threat to assault him constitute appalling behaviour.

43Mr Morgan, who appeared on your behalf, submitted that I should see the offending as having occurred in the context of a cycle of ongoing mental health issues where you suffered from drug induced psychosis and drug induced schizophrenia. Given the police concern for your health at the time, and that the first assault took place at the hospital, I consider it is likely that your mental health was compromised at the time of that assault.

44The medical records produced to me and complemented by Mr Morgan's submissions on the issue provide some real basis for concluding this, and I note that you were admitted to hospital with drug induced schizophrenia after the blackmail and before the assault matter.

45This cannot however excuse your appalling behaviour. I will however take into account the whole of the circumstances in which your conduct occurred.

46Nevertheless, to a real extent, your offending must be met by principles of deterrence, denunciation, a measure of protection of the community and just punishment.

Personal Circumstances

47You are now a 27-year-old man and enjoy a close relationship with your mother and siblings who reside in Benalla. You intend to reside with them upon your release from custody.

48Your counsel describes your childhood as chaotic. You grew up with an abusive stepfather, both physically and emotionally. You only ever had intermittent contact with your biological father whenever he decided to 'drop in' to spend time with you. He committed suicide when you were 17 years old.

49Due to the difficulties at home, you always struggled with your schooling. You told your counsel that you spent most recesses and lunch in the principal's office due to behavioural issues.

50You have limited education, and you were expelled from school in Year 8 due to assaulting the principal. Your counsel instructs that your first appearance in the Children's Court may relate to this incident. You managed to complete Year 11 in juvenile detention.

51You were first introduced to drugs at age 12 using cannabis. By 15 you were using ice and by 17 using heroin. You describe yourself as a frequent drug user since the age of 12 up until your remand for this offending.

52Your drug use, and consequent mental health issues, together with your offending, have combined so that you have never engaged in any sustained or meaningful work.

53You have been admitted to psychiatric institutions on numerous occasions due to diagnoses of drug induced schizophrenia and psychosis. Mr Morgan described a long‑term cycle of drug use, mental illness, medication, non-compliance and relapse into offending which has usually been met by periods of imprisonment.

54You have now been in custody for almost 18 months, and I was told that you have remained drug-free for the longest period of your life since you were 12. In that time, you have been medically treated in the confined environment. Remarkably, your schizophrenic symptoms and psychosis have resolved. You still receive regular high dose of methadone but you are no longer prescribed any medication for mental health issues.

55Mr Morgan expressly does not rely on the principles in Verdins,[1] as you have benefited from the drug-free period of your imprisonment. Rather, Mr Morgan submits that this turnaround speaks of your prospects for rehabilitation.

[1] R v Verdins & Ors [2007] VSCA 102.

56You have a five-year-old son who lives in Wagga Wagga with your former partner. Although in the past no contact intervention orders were in place, you instruct you are currently on good terms with her and your former partner makes regular visits and contact with you in custody.

Sentencing Submissions

57Mr Morgan submitted that the following factors should operate to mitigate your sentence:

(a) You indicated an early plea of guilty to theft and blackmail. You always intended to plead to the assault on Lee Armstrong. The plea in that matter was made after the more serious charge of aggravated burglary was withdrawn. I accept that your pleas to all matters have a utilitarian benefit;[2]

(b) A sustained period of remaining drug-free, Mr Morgan submits you are developing insight and take responsibility for your actions in these offences and the role of drug using in your offending;

(c) You have renewed contact with your son’s mother. You are now in a position where you both wish to positively cooperate in co-parenting your son;

(d) Although your relationship with your mother and siblings has been strained over the years, now that you are drug-free whilst in custody, you have been able to rebuild your relationship with them and you have their support and visits on a regular basis. You intend to return to live with your mother on your release from custody; and

(e) You are drug-free, and free of your mental illness. As long as the cycle of drug use/mental illness/offending is not resumed, your prospects for rehabilitation must be enhanced.

[2] Worboyes v The Queen [2021] VSCA 169.

58Ms MacDougall who appears for the Crown submitted that the only appropriate sentence is a term of imprisonment to be served by way of a head sentence and non-parole period.

Analysis

59I consider that each of the matters raised on your behalf in submissions should be taken into account in the sentencing consideration.

60In my view, your background and upbringing ought to give rise to the application of the general Bugmy[3] principle, enunciated in Hermann[4] - that is, that your profoundly disadvantaged background can be taken into account in the sentencing consideration. This means that your sentence should be mitigated to some extent because the hardship and deprivation you experienced as a child have shaped the person you have become. You are fortunate to now have the loving support of your mother and siblings. You will need to rely on such support going forward.

[3] Bugmy v The Queen [2013] HCA 37.

[4] DPP v Herrmann [2021] VSCA 160.

61A real issue for concern is the assessment of your prospects for rehabilitation. After battling with drugs and mental health issues for most of your teen and all of your adult life, you now present as drug-free and free from mental illness as a consequence of your prolonged period in prison. It is apparent that your prospects for rehabilitation hinge largely on remaining drug-free. You will also need to build positive social supports in the community – that is friends, family, professional support networks and perhaps even employment.

62Your prospects for rehabilitation remain guarded but they have not been extinguished.  The real test will come on your release from prison. It is then that your new-found determination to remain drug free will really need to really kick in; otherwise you will certainly lapse back into crime, mental illness and prison for the rest of your life.

63Your offending on this occasion must be met by a term of imprisonment. The overall sentence I impose must take into account the principle of totality. In other words, I do not intend to impose a crushing sentence – rather I will have regard to the whole of your offending and moderate the periods of accumulation in order to achieve an overall just sentence.

64I can only have very limited regard to the sentence imposed on Kane Benjamin as he was sentenced for different charges. Whilst I consider the sentences imposed on Lee Armstrong and Dalton Espagne in relation to the dog theft and blackmail, I was told that your prior criminal history is more extensive and more serious than either of those offenders. When I take into account the sentences given to others, it does not mean that you will get the same sentence yourself. It depends on the role you played and your personal background. I must make an assessment of the appropriate sentence to impose on you; not just according to what sentences other people received.

Orders

65So accordingly, I make the following orders.  I will run through the sentences first, and then I will do the orders for cumulation.

Indictment N10712140A.1

66On Charge 1, common assault, you are convicted and sentenced to 6 months' imprisonment.

67On Charge 2, drive whilst disqualified, you are sentenced to 6 months' imprisonment.

68On Charge 3, possess a prohibited weapon without an exemption, you are sentenced to 4 months' imprisonment.

Indictment N1071214B

69On the charge of being a prohibited person carrying an imitation firearm, you are convicted and sentenced to 15 months' imprisonment.  That will be the base sentence.

70On the charge of possession of a drug of dependence, being the cannabis, you are fined $100 without conviction.

71On the charge of assaulting an emergency worker, you are convicted and sentenced to 9 months' imprisonment.

72On the charge of threatening to assault an emergency worker on duty, you are convicted and sentenced to 9 months' imprisonment.

73On the charge of committing an indictable offence on bail, you are convicted and sentenced to 1 month imprisonment.

74On the charge of theft on Indictment M12639756, that is theft of the dog Milly, you are convicted and sentenced to 6 months' imprisonment.

75On the charge of blackmail, you are convicted and sentenced to 9 months' imprisonment.

76Now, as I say, the base sentence is the sentence appearing on a prohibited person carrying an imitation firearm. 

77So going back to Indictment N10712140A.1, on the common assault, I order that 3 months of that sentence be served cumulatively on the base and all other sentences.

78On the charge of drive whilst disqualified, 2 months of the sentence is to be served cumulatively and your licence will be cancelled for 12 months.

79On the charge of possess a prohibited weapon without exemption, 1 month cumulative.

80On the charge of assaulting an emergency worker, 3 months' cumulative.

81On the charge of threatening to assault an emergency worker, 3 months' cumulative.

82On the charge of theft, 2 months cumulative.

83On the charge of blackmail, 3 months cumulative.

84The total effective sentence is a sentence of 32 months' imprisonment.  I order that you serve a non‑parole period of 21 months before you are eligible for parole.

85I declare the period of 528 days pre-sentence detention, excluding today, reckoned as already served.

6AAA declaration

86The 6AAA declaration is but for the plea of guilty, I would have sentenced you to a term overall of 45 months with 33 to serve.

87Ms MacDougall, were there ancillary orders?

88MS MACDOUGALL:  Yes, there were, Your Honour.  There is a forfeiture order concerning the imitation firearm and a disposal order concerning the drug of dependence.

89(Ancillary orders were made).

90HIS HONOUR:  All right, thank you. That being the case, I will adjourn.

‑ ‑ ‑