Director of Public Prosecutions v Hancock
[2012] VCC 1219
•23 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No CR-12-00783 CR-12-00845 CR-12-01145 CR-12-01148
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DJ HANCOCK |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 13 August 2012 | |
DATE OF SENTENCE: | 23 August 2012 | |
CASE MAY BE CITED AS: | DPP v Hancock | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1219 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.A. Flynn | |
| For the Accused | Mr D. Gibson |
HIS HONOUR:
1 DJ Hancock, you can remain seated for the time being. You pleaded guilty to an Indictment charging you with two offences of criminal damage, one offence of recklessly causing injury, an offence of armed robbery, an offence of attempted theft, an offence of attempted armed robbery and an offence of possessing a drug of dependence. All of those offences took place during the latter part of last year between 22 November and 30 December.
2 You have also admitted a number of prior convictions which are set out in a document that was submitted along with the Indictment.
3 The prosecution tendered a Summary of Prosecution Opening which is Exhibit A on the plea. It was read out in open court and I do not propose to read it out again. It will be available to the press if the press seek access to it and I adopt and incorporate that document in its entirety into the reasons for sentence.
4 The prosecution also tendered a Victim Impact Statement from the victim, the subject of the attempted armed robbery offence, he being the driver of the pizza delivery vehicle who was subjected to an attempted armed robbery on 29 December of last year.
5 These are serious offences. The offences of criminal damage carry a maximum term of imprisonment of ten years. The offence of recklessly causing injury, a maximum term of imprisonment of five years. The armed robbery, a maximum term of imprisonment of 25 years. Attempted theft, five years. Attempted armed robbery, a maximum term of imprisonment of 20 years and for possessing a drug of dependence, a maximum term of one year imprisonment.
6 I was provided by your counsel with a document which outlines the plea that he presented on your behalf along with reports from a neuropsychologist, a Dr Simone Riley, the assessment having been made on 14 September 2010, and a report from a psychologist, a Mr Ball, dated 24 May of this year.
7 The way in which the plea was structured and presented was commendably ordered and it is a good example of how a plea may be structured and presented. It identified a number of significant mitigating factors which are relevant to sentence in this case.
8 It is noted, of course, that you are still only 18 years of age. These offences were committed after you had just turned 18 years of age. You pleaded guilty to each of the offences, and to the extent that your memory of the events permitted you, you made admissions to the police in relation to your offending conduct.
9 You have, I think in one way or another, expressed remorse, but the plea of guilty in itself requires me to reduce sentence on the basis of, not just of it being some indication of remorse, but also as a reflection of your willingness to facilitate the course of justice, and it avoids the cost of a trial or trials to deal with these offences.
10 The reports upon you, particularly that of Mr Ball, which is the more current report, sets out a deal of your background history including your education which was to Year 9. It is clear that you have not lived at home for quite some time and that you have fallen into bad company and into bad habits, in particular, into alcohol and drug abuse.
11 It seems likely that that course of conduct has led to you damaging your brain which poses further difficulties for you in exercising judgment and avoiding conduct of this kind. It seems that the offences were committed against a background of this drug abuse and also may well have been committed in circumstances where you were substantially affected by the drugs that you were taking. It is quite likely that they would have affected your judgment and disinhibited you as is suggested in the reports.
12 Mr Ball did not find any, or any significant, mental illness. He says of you on p.3 of his report under the heading, "Mental Status Examination", "He reported no depression or anxiety and described his mood in positive and stable terms. His presentation in clinical interview was consistently indifferent, oppositional, defiant and disinterested. He would often boast about his prowess at making 'gaol brews'" - referring obviously to your time on remand since December of last year. "Standing up for himself. Never backing down for anyone and his ability to manage himself as one of the few 18 year olds in an adult prison. He said that his appetite was good and that he was sleeping well. He reported no psychomotor agitation or retardation that might indicate a deeper underlying mood disorder. I observed no evidence of frank mental illness nor as psychotic ideation, hallucinations or delusions in Mr Hancock's speech or demeanour. He spoke lucidly at all times and was orientated to time, place and person."
13 I note that it was necessary for Mr Ball to engage in a number of sessions with you in order to properly prepare this report.
14 He said at the conclusion of this section of his report on p.3, "Mr Hancock impressed me as an immature, anti-social, defiant, oppositional and low-functioning individual prone to very poor judgment, aggressive acting out, rapid relapse into substance abuse, impulsivity and the failure to learn from previous mistakes. He lacks the capacity to plan and execute positive and self sustaining behaviour. He expressed no insight into his behaviour and minimal insight into his general psychological functioning”.
15 He dealt in some detail with your drug and alcohol history and referred to your prior offences. He says on p.4 in relation to your prior offences that, "When I asked Mr Hancock to broadly explain what had happened he said he was on drugs and living on the streets. He added, 'Moving out of home at such a young age and hanging out with older people. Leaving my family has hurt me the most. That's what's pushed me towards drugs and then offending. I felt like I have nothing to live for but being in gaol I now know I have my whole life ahead of me. I know I need my family and my life and I'm fixing that. I love my family.'"
16 He went on to say, "Mr Hancock expressed what I assess to be simplistically correct, remorse and victim empathy. He said, 'I regret what I did. If I had been sober I wouldn't have done it.' He said he believed the victims in this matter 'would have felt pretty scared.'"
17 On p.5 of his report Mr Ball says under the heading, "Rehabilitation and Management in the Community. In my opinion Mr Hancock's rehabilitation and management in the community presents with a number of challenges. He has a history of rapid relapse into drug and alcohol dependence in the community. His acquired brain injury has impaired significant aspects of his memory and reduced his ability to plan and execute positive and self sustaining behaviour. His dysthymic mood, while eminently treatable requires him to engage meaningfully in treatment programs and comply with many appropriately prescribed medication."
18 He went on to say, "Mr Hancock may have the capacity to rebuild his life essentially. Mr Hancock's management in the community is support intensive and structured treatment, supervision and monitoring. Such support and supervision in the community would be best afforded under conditional release such as a parole order."
19 Given your age and given the submissions that were made on your behalf of the last occasion and what I perceive to be the appropriate principles that need to be applied in cases where the offender is a young offender, as you are, it seemed to me that it was desirable, despite your criminal history, despite the seriousness of these offences and despite the submissions of the prosecution to the contrary, that I should obtain a report - a pre-sentence report - as to your suitability for a Youth Justice Centre Order. That report has been provided, dated 20 August 2012 and it recommends that you are not considered suitable for a Youth Justice Centre Order in relation to the matters which bring you before the court today.
20 It seems to me that that report was carefully compiled and well reasoned and I do not criticise in any way the content of the report or the assessment that is made. I have to say though, sitting here, that the balance in my mind still has to be for an 18 year old, particularly with an 18 year old who has lacked structure in his life for such a significant period, that rehabilitation will best serve the community in the long term.
21 It is, of course, to be noted that the offending conduct that you engaged in is unfortunately prevalent amongst young offenders and that is a factor which would ordinarily militate in favour of the prosecution position which is that a term of imprisonment in an adult prison was the only available sentence.
22 However, I am very concerned about giving up on an 18 year old who has, up to now, had such an unstructured life in circumstances where the specialist care surely is still to be found in the Youth Justice system in this State rather than in the adult prison system. It seems that it is highly unlikely, on my understanding of the available facilities, that if I was to pass an appropriate prison sentence upon you that you would receive kind of multi-faceted rehabilitative programs that might be available to you - and hopefully would be available to you - through the Youth Justice system.
23 Whilst I accept the propositions that it would seem your past history indicates that you are a poor candidate for rehabilitation there are, it seems to me, even in Mr Ball's report and indeed in the pre-sentence report, some glimmers of hope that - as I put it during the plea hearing earlier today - a light bulb has finally gone on in your head as to what must be required of you if you are to lead a happy life in the future which is not regularly punctuated by terms of imprisonment.
24 I note on p.6 of the pre-sentence report that the author notes that, "Over the past month his" - that is your - "attitude has improved. Ms Gillard advised that Mr Hancock had reported to her that he was bored and that upon being provided tasks to complete in the kitchen and yard" - that is whilst you were in remand in prison - "his interaction has been more positive. Ms Wheelan confirmed that Mr Hancock's attitude has shifted more recently and that he is being proactive in involving himself in programs whilst in custody such as a barista and occupational health and safety courses. Mr Hancock confirmed that he had an attitude of 'Fuck everyone, fuck the world' and realised that he was 'heading down the wrong path' and made efforts to change his attitude. Mr Hancock reflected that since this time his experience in custody has been more positive however stated that, 'That gaol is not a thing I want to be coming back to.' The writer also spoke with Brendan Bowe, acting unit manager, Malmsbury Youth Justice Centre in order to assess Mr Hancock's suitability for a Youth Justice Centre. The writer must agree that, despite Mr Hancock's expressed commitment to his rehabilitation and his acquired brain injury potentially increasing his vulnerability in the adult prison system, given his lack of family support, limited opportunities for employment, lack of compliance with previous Youth Justice Centre orders and a relatively lengthy period he has already spent in adult remand, Mr Hancock is not considered for a Youth Justice Centre Order."
25 It seems to me that if one takes into account your indication to Mr Ball that wish to re-engage with your family and the indications that you may have changed your attitude - which you exhibited in recent times whilst on remand -and given what seems to me to be, clearly, your vulnerability in the adult prison system - and I have to say despite the reasoning in the pre-sentence report - it seems to me that it is worth trying a Youth Justice Centre Order and that that is a preferable course for a man who is still only 18 years of age.
26 It may be that I am going to make life somewhat difficult for those who have to look after you, those who have to plan for your future and try and engage you in the system under a Youth Justice Centre Order, but I am persuaded that that needs to be tried. I note that you have not spent any significant period of time previously in a Youth Justice Centre under sentence and that an order, which I am about to make, which will require you to spend a more significant period of time may have better prospects of success.
27 You must realise that it very much depends upon your willingness to engage with the people who are responsible for helping you to rehabilitate yourself. You have a choice of going back to your "Fuck everyone, fuck the world" attitude or you have the choice of engaging in the programs that will be offered to you.
28 There will be an opportunity for you to be paroled. Your ability to achieve parole at the earliest reasonable opportunity may well depend much upon your willingness to hunker down and co-operate with those who are seeking to facilitate your rehabilitation. That is enough of a lecture from me but I hope that some of those words may stick in your mind.
29 There will be people who will do what they can to help you. I urge you to accept their help now because if you do not it is going to be very difficult for you, I think, in the future to make any sort of happy life for yourself.
30 Mr Hancock, would you stand please. On each of the offences on the Indictment to which you pleaded guilty I convict you and I remand you to a Youth Justice Centre for a period of three years.
31 I declare that a total of - how many days is it now?
32 MS FLYNN: Two hundred and thirty-seven, Your Honour, not including today.
33 HIS HONOUR: Right. Two hundred and thirty-seven days, not including today, be reckoned as time served on the sentence that I have imposed and deducted from your sentence.
34 But for your please of guilty I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.
35 I might say that I have, I think, sought to take into account and apply the principles that apply to young offenders and also have taken into account the history of drug abuse and the likelihood that you suffer from an acquired brain injury as a result of your drug abuse and alcohol abuse in reducing the sentence that would otherwise have been appropriate for offending as serious as this.
36 I hope you appreciate now that this offending was extremely serious and will result in the future in a substantial term of imprisonment if you repeat this kind of offending. I hope you now take the opportunities that are offered to you.
37 There are some other orders that I need to make, but before I deal with those, I will allow you to sit down, if I may, and I will look at the drafts that are about to be supplied to me.
38 MS FLYNN: Your Honour, there was applications for an order pursuant to s.464ZF(2), a disposal order and a compensation order and copies of those orders can be handed up now to Your Honour.
39 MR GIBSON: None of those orders are opposed, Your Honour.
40 HIS HONOUR: Thank you very much. I will make and sign those orders.
41 Mr Hancock, I am about to make an order that you undergo a forensic procedure, the taking of a scraping from your mouth and/or a blood sample. Do you understand.
42 PRISONER: Yes, Your Honour.
43 HIS HONOUR: You will be requested to provide a sample by a scraping from the mouth. If you co-operate with that there will be little difficulty, I think, but if you fail to co-operate or refuse to provide that scraping from the mouth, then the authorised officer requesting the sample may then use reasonable force to obtain a blood sample. Do you follow? I am sure you will co-operate. You can sit down again.
44 How many copies of the s.464ZF do you need - only three?
45 MS FLYNN: Yes, Your Honour, there's usually two versions, a custodial and a non-custodial so the non-custodial might be at the back but it's the front three - - -
46 HIS HONOUR: That has got the extra paragraph in it; has it not?
47 MS FLYNN: Yes, Your Honour, thank you.
48 (Orders signed.)
49 I have made and signed each of those orders.
50 MS FLYNN: As Your Honour pleases.
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