Director of Public Prosecutions v Hancock

[2016] VCC 393

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01395

DIRECTOR OF PUBLIC PROSECUTIONS

v

D.J. HANCOCK

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 April 2016
CASE MAY BE CITED AS:	DPP v Hancock
MEDIUM NEUTRAL CITATION:	[2016] VCC 393

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Offender	Mr J. Westmore

HIS HONOUR:

1D.J. Hancock, you are to be sentenced for one charge of armed robbery and one charge of intentionally causing serious injury.  The respective maximum sentences are 25 years and 20 years' imprisonment.

2You pleaded guilty before me on 17 November 2015.  When interviewed by police on 23 January 2015, you made admissions amounting effectively to a full confession of your role in the offending.  I find this an agreed position despite your denial to police at the offence of armed robbery.    The committal went by hand-up brief on 10 August 2015, after which you entered a plea of guilty.  The matter was then listed for plea hearing at the November sittings of this court at Geelong. 

3You receive the benefit of your plea of guilty and a high level of co-operation, both from an early stage. 

4At your plea hearing, also on 17 November, Ms Flynn, for the Crown, tendered a written prosecution opening and victim impact statements of your victim, Peter Rose, dated 27 May and 16 November 2015.  Mr Westmore, for you, tendered the neuropsychological report of Dr Simone Riley.  The date of her assessment was 14 September 2010 when you were aged 16, almost 17.

5On 17 November I requested a further neuropsychological report investigating the possibility of an acquired brain injury.  I have received a report of Dr Lauren Fitzpatrick dated 16 February 2016.

6Your offences are described in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.

7In the late afternoon of 19 January 2015 you were in the company of Natalie Boltar, Dale Collins, Kevin Gates and Danielle Strong.  You were driving about the Geelong area.  You were aged 21 and the others, as best discerned, are similarly aged.  Collins owed money for drugs and you were looking for a suitable vehicle to steal and sell or sell parts.  The main movers, and ultimately planners of what happened, were Collins and Boltar.  I accept that you had been heavily using drugs including methylamphetamine.  You state that you had not slept for two weeks.

8At about 5.30 pm, Boltar and Strong went to the front door of victim  Peter Rose's home, pretending to seek directions.  Your group then left but planned to return and steal his Holden utility.  There was discussion of the need to arm and, if necessary, deal with Rose physically.  At about 1 am on the 20th, you Boltar and Collins returned to his home.  The power was turned off at the external power board.  Paragraphs 6 and 7 of the Crown opening state as follows. 

9"The victim woke up at about 1 am on his couch in the lounge room and noticed the power going off.  He grabbed a torch and went outside to see what was going on.  He went out the back door.  He noticed a person come out from behind a thin tree in his yard and he was immediately hit from behind over his head with a metal baseball bat.  He noticed at least two males wearing dark clothing yelling at him.  He was being repeatedly struck to the head, back, shoulder and arms as he was trying to protect his face and body.

10He thought that he was going be killed and he was screaming for help.  He believes he lost consciousness a few times.  He was in a lot of pain and his face and head were bleeding.  He was trying to get up off the ground but each time he tried to get up he would be hit." 

11You stated to police in interview that you struck Peter Rose with a metal baseball bat at least eight times to his back and head.  You did so, you said, to stop him getting up.  That was your directed role.  It is conceded by the Crown that you were not the only person to so strike him.  You and at least Collins went into the home and took a wallet, cash and keys to the utility.  You drove away leaving Peter Rose badly hurt in his front yard.

12Paragraph 10 of the Crown opening states the injuries inflicted upon him. 

13"The victim suffered severe lacerations and bruising to his head, arms, shoulders and back.  He suffered fractured facial bones and eye socket.  He lost his right eye.  With it being so badly damaged, the surgeon had to remove it.  The victim suffered fractures to his hands and wrists as well as extensive bruising and swelling to his back, shoulders, arms and leg.  He remained in Geelong Hospital for 11 days before being transferred to the Grace McKellar Centre for rehabilitation.  He did not return home until 20 February 2015.  He requires further surgery to repair his eye socket and facial bone and to have a prosthetic eye fitted."

14Later,  on 20 January, the utility was recovered  with the hard top,  said to be the feature motivating the plan to steal, tailgate, taillights and front grille missing. 

15I have carefully read the victim impact statements of Peter Rose.  He will not get back vision of his right eye.  His first statement,  dated 27 May 2015  and therefore about four months after the offending, explains the far-reaching effects of that loss of vision.  It affects many aspects of his life.  This includes day-to-day tasks such as cooking, cleaning and other self-care. Important activities such as reading and his hobbies of drawing and model kit construction are impaired.  Corrective lens are necessary given formerly weak sight his left eye.  There is also the pain and distress of facial and bone damage to his eye socket.  Surgery has been necessary and,  as at November last year,  more was pending. 

16There were other significant injuries: a broken nose, serious head and scalp lacerations, bruising and related concussion.  These have caused pain, headaches and distress.  Memory has been affected, requiring work with a psychologist.  There were extensive defensive injuries to his hands, arms, shoulders and upper back, all causing pain and requiring rehabilitation.  Osteoarthritic symptoms in his knees and ankle were aggravated, causing pain and feared loss of mobility into later life.

17Emotional and psychological effects have also been extensive.  There are symptoms of post-traumatic stress disorder, problems with sleep, anxiety and hypervigilance.  There was a difficulty returning to his home.  There has been loss of trust and a feeling of safety.  There is anger and fear for the future.

18Financial costs have included being unable to return to employment, medical costs not covered by insurance and necessary adaptations to home security and because of vision loss.

19Peter Rose's more recent statement of 16 November 2015 states some slow improvement;  but problems related to sleep, dreams and distrust have continued.  He had still not returned to work.  Many of the symptoms stated in the first statement remain.  There have been three operations and other surgery is possible.  Peter Rose's view of life and people has been affected.

20I have not been complete.  The victim impact of your offence has been very considerable and must be taken into account in my sentence of you.

21You are now 22 years of age and are placed in remand custody awaiting this sentence.  You have been in remand since arrest on 23 January 2015, now over 15 months ago. 

22You have suffered a badly deprived and damaging early life.  Both of your parents abused drugs.  Your father was violent, including to you. 
Mr Westmore's outline describes daily beatings.  It states that you were surrounded by drug use.  You have two older and three younger brothers.  Since your remand for this, you have had some contact with your father. 

23You started using alcohol and drugs yourself at about 12 and first left home at 13.  You began using cannabis then moved to speed, ultimately intravenously, and in more recent times, ice amphetamine.  There have been long periods of daily use.  You have also abused, although not consistently, drugs such as ecstasy, cocaine and benzodiazepine.  It is apparent from the recent neuropsychological report of Dr Fitzpatrick, who assessed you in remand custody on 22 January 2015, that you are able to access drugs such as ice amphetamine and heroin.  Drugs and your dependence on them threaten to ruin your life and health. 

24In that context of a violent, dysfunctional family and then very early descent into drug use, schooling was not successful.  You left during Year 9.  Since, there has been some further education at Year 10 level at Malmsbury Youth Justice Centre.  You have had little significant employment, your longest job thus far being of four months.

25At 22, your criminal record is considerable and, it might be said, reflects your early life and drug dependence.  Between December 2009, when you had just turned 16, and May 2014  there are, given your age, a large number of court appearances.  Most are Children's Court appearances.  Offences of dishonesty predominate.  However, there are a number of violent offences.  These include appearances for attempted armed robbery in August 2012 and April 2010; robbery in July 2010 and armed robbery on the same date in April 2010.  In April and July 2010 you were aged 16.  You received a youth supervision order in December 2009 for offences including aggravated assault of a person under 18.  As I have stated, you had just turned 16.  Your first sentence of youth justice centre detention was in April 2010, also at 16.  Further such sentences followed.  You have spent significant periods in adult custody but have not yet been sentenced in that way.

26On 17 November Mr Westmore tendered and relied upon the September 2010 neuropsychological assessment of you, then almost 17, by Dr Simone Riley.  It raised the possibility, perhaps perceived probability, of acquired brain injury.  Accordingly, he sought a more recent assessment and report.  That has been by Dr Fitzpatrick.  Regrettably this and my obligations on circuit in March have caused a delay of now almost five months. 

27Dr Fitzpatrick's testing and consideration of a more complete history of head trauma and drug use has not led to a diagnosis of acquired brain injury.  You are broadly of low average intelligence with performance in some areas at the so-called borderline intellectual range.  Bearing in mind Dr Fitzpatrick's findings and the circumstances of this offending, I do not find that the principles stated in Verdins and like cases have application.  The factor acting on your ability to judge and consider what you did was drug use and intoxication. Of itself that does not mitigate the offending.

28Dr Fitzpatrick's report also states this.

29"It should be noted that while, at this stage, there is no real evidence to suggest the presence of a substance-related acquired brain injury,
Mr Hancock has a very long and substantial history of poly substance abuse and he is in fact very lucky to have not already sustained functional brain impairment.  Indeed, if Mr Hancock continues to abuse substances in the same manner, there is a high risk that he will begin to exhibit demonstrable signs of a substance-related brain injury in the coming years."

30These are serious examples of the offences, particularly, to my mind, that of causing serious injury to Peter Rose.  I do not find that you were actively involved in the planning of what happened.  However, you assisted a brutal crime and your role and input was brutal.  Your own description to police states participation in a mindless, vicious attack which has caused great harm.  You have relevant prior convictions.

31In such circumstances, the sentencing considerations of deterrence, in your case both specific and general deterrence, your moral culpability, that I sentence in a way to condemn what you did and the need for proportionate punishment are relevant and important. You and others must be deterred to protect the community.  There is no sentencing alternative but a sentence of imprisonment of considerable length.

32I must also take into account relevant moderating factors.  In your case these include the following.

(1) your early plea of guilty and co-operation.  These have facilitated the interests of justice.  It can be said that your admissions to police about your role were particularly candid.  Very often a lesser participation or more euphemistic description is attempted.  The tendered Crown opening states that your accused, Collins and Boltar, contest the charges against them.

(2) Your personal history and circumstances.  Mr Westmore directed me to the High Court case of Bugmy  and I seek to apply the principles stated in that case.  I accept that the deprivation and damage of your upbringing was, and is, very considerable.  I would find that has played a critical role in your early teenage decline into drugs and then the life you have since lived.  For example, this should impact to some extent upon my consideration of the role of your drug use in this offending.  Your still young age is also important to this. 

(3) As just stated, you are still young at 22.  I recognise the principle that very serious offending,  and the adverse sentencing considerations that makes relevant, requires proportionate punishment.  This makes youth a less powerful consideration.  However, I find that your young age must still be considered in the balance of competing factors.  It should still, to some extent, moderate your sentence. 

(4)       Your youth requires consideration of rehabilitation.  I find it difficult to be optimistic as things presently stand.  However, I still take into account the need for that attempt.  The alternative is a life ruinous to you and which will continue to threaten our community's welfare. 

Mr Westmore also raised the more onerous circumstances of your remand related to lockdown conditions brought about by riots at the Melbourne Remand Centre in July 2015. 

33I have found this a difficult sentence.  The offending and its impact require substantial punishment.  This must also be balanced against the factors, mainly personal to you, I have identified.  This relates to your head sentence, but also I have decided what minimum term I impose.  After considering and weighing what I see to be the relevant matters, I sentence you as follows.

34Stand up.

35On Charge 1, armed robbery, you are sentenced to four years' imprisonment.  On Charge 2, intentionally causing serious injury, you are sentenced to six years' imprisonment.  I direct that 12 months of the sentence for Charge 1 be served cumulatively upon the sentence for Charge 2.  That is a total effective sentence of seven years.  I direct a minimum term before eligibility of parole of four and a half years. 

36I declare, under s.18, pre-sentence detention of 439 days?

37MR WESTMORE:  Yes, 439.

38HIS HONOUR:  I indicate this.  Had you not pleaded guilty, I would have imposed a sentence of ten years with a minimum term of seven years.  Is there an application for a forensic sample?

39MR PICKERING:  There's not, Your Honour, because it's already been profiled.

40HIS HONOUR:  It's been taken, yes. 

41MR PICKERING: However, there is the serious offender provisions and under 6F of the Sentencing Act the status will have to be noted on the record.

42HIS HONOUR:  I need to reflect a short time on that.  Take a seat.  Is that because of earlier ‑ ‑ ‑

43MR PICKERING:  Yes, Your Honour.

44HIS HONOUR:  I don't think this was raised with me.  I presume you're not seeking a longer than proportionate sentence ‑ ‑ ‑

45MR PICKERING:  We're not, Your Honour.

46HIS HONOUR:  ‑ ‑ ‑ to achieve community protection.

47MR PICKERING:  No, Your Honour, and it's possibly because of the broken up way that the plea's been done.

48HIS HONOUR:  Yes, yes.

49MR PICKERING:  But, yes, that wasn't raised specifically, Your Honour, and ‑ ‑ ‑

50HIS HONOUR:  What brings him into that category that he's - those earlier matters?

51MR PICKERING:  Yes, the earlier matters.

52HIS HONOUR:  Yes.

53MR PICKERING:  And then the nature of the intentionally cause serious injury with those as prior matters, so no further consideration needs to be given other than what is required by legislation to ss.6C and 6D.

54HIS HONOUR:  Yes, well, I think people are very familiar with what that says.  It makes community protection the ‑ ‑ ‑

55MR PICKERING:  It does.

56HIS HONOUR:  I don't think I need to make any change to my reasons.  It's self-evident that ‑ ‑ ‑

57MR PICKERING:  Yes, Your Honour, the only ‑ ‑ ‑

58HIS HONOUR:  ‑ ‑ ‑  that the community protection is an important consideration.  The section requires that I treat it as the primary consideration.

59MR PICKERING:  Yes, Your Honour, and the other factor is that under s.6E the sentences are to be served cumulatively.

60HIS HONOUR:  Yes.

61MR PICKERING:  And that's unless otherwise directed by the court.

62HIS HONOUR:  Yes.

63MR PICKERING:  But Your Honour has partially cumulated the sentence, so it can be taken that ‑ ‑ ‑

64HIS HONOUR:  I mean totality has to be measured against the directions - the section under that part.

65MR PICKERING:  That's right.  The only consequence as far as your actual orders is under 6F, which is the noting of the status.

66HIS HONOUR:  Yes, it needs to be noted.  I will just sit a little longer reflecting on that.  I don't think I am being asked to change anything in my reasons.  I feel that the sentence I have imposed, including the cumulation, properly reflects the need to treat community protection as the primary consideration, although I did not state that specifically in my reasons.   I am not asked, nor I think in a case like this in which I am attempting to impose a sentence proportionate to very serious offending, that I need to give a longer than proportionate sentence to achieve it.   I think, as is often the case, the principle of totality needs to be applied, measured against what the section says about cumulation.  I am not minded to change what cumulation I have directed, which in the circumstances of this case is considerable in my view. 

67I have taken the view, and I think the plea went this way, that in terms of this man's involvement, the  more serious offence was intentionally - was the serious injury offence, and my sentence reflects that.  So that he is sentenced as a serious offender.  It will be noted in the records of the court. 

68I make this comment, and it reflects what I said earlier, if you are released after your minimum term, upon reaching that, you have got two and a half years of parole.  That is a long time.  I have not taken into account the possible or likely Parole Board action on your case.  I am not permitted to do so.  It seems clear that modern parole requires that that Board  be satisfied that you should be released.  It is to be hoped that you develop the insight and capacity to behave in a way in custody to achieve that.  That, in fact, may prepare you for a long parole term and help you serve it successfully.  Continued drug use will not help you.

69Is there anything else I need to do or say?

70MR PICKERING:  No, Your Honour.

71HIS HONOUR:  Mr Hancock can be taken into custody.

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