Director of Public Prosecutions v Hanson
[2017] VCC 742
•11 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-17-00166
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAKYN HANSON |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 March, 2 May 2017 | |
DATE OF SENTENCE: | 11 May 2017 | |
CASE MAY BE CITED AS: | DPP v Hanson | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 742 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Robbery – recklessly cause serious injury - recklessly causing injury - possessing a controlled weapon without excuse
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of 12 months detention in a Youth Justice Centre and $200 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill | Office of Public Prosecutions |
| For the Accused | Ms C. Lynch | Mel Walker |
HER HONOUR:
1 Lakyn Hanson, you have pleaded guilty to five counts of robbery (for which the maximum penalty is 15 years' imprisonment), one count each of recklessly causing serious injury (for which the maximum penalty is 15 years' imprisonment), and recklessly causing injury (for which the maximum penalty is 5 years' imprisonment). You have also pleaded guilty to an uplifted summary charge of possessing a controlled weapon without excuse, in relation to a knife found in the bag you were carrying when arrested. The maximum penalty for this offence is 120 penalty units or one year imprisonment.
2 The offending arises from a series of robberies committed against strangers in the Federation Square/Birrarung Marr area of the CBD during the evening of Sunday, 12 June 2016, by various members, including yourself, of a group of young people. You are the eldest of the group and were just 18 years old. The remaining members of the group were or are being dealt with in the Children’s Court.
3 The circumstances of the offending are set out fully in the Crown Opening on the Plea which was tendered at the plea hearing and I sentence you on the basis of the facts contained in that document. I will refer to them only briefly here.
4 At around 9.15 pm on 12 June 2016, you were with a group of co-offenders including Adrian Taiatini, Tahu Brooke, Kallen Taylor-Ratapu and Toni Matahiki. Brooke suggested robbing some people, and you and others agreed. Brooke was to choose the victims. There were three incidents.
5 Charges 1 and 2 concern the offending against the group’s first victims: Teagan Mihailovic (aged 16) and Callum Brown (aged 18). Your group surrounded them; Brooke demanded Mihailovic’s phone and money, Matahiki hit her across the face when she refused and took her phone. One of you hit Brown on the back of the head, and one of you stole his phone and his backpack. Then you and three others punched him continuously to the head. He tried to protect himself and you all pursued him up and then down the stairs. Matahiki and a male co-offender held Mihailovic’s hair and punched her to the head, then when she fell, kicked her in the head and stomach. Brooke held her down and Matahiki took her phone and demanded her password. Brown and Mihailovic ran away, but your group pursued them and kept hitting Brown in the face. The offending ceased when interrupted by a couple passing by, who offered assistance to the victims, and you ran away. You stole their phones and two mobile phone powerbanks.
6 The victims reported the incident to police the next day. Ms Mihailovic stated that as a result of the robbery she suffered bruising to her face and right arm and tenderness to her wrist. Mr Brown complained of a sore jaw, a swollen nose, bruising around the eyes and cuts on his face.
7 Charges 3 and 4 concern the second incident. Shortly after the first incident, your group met up with co-offender Tuuaga. Together you returned to Birrarung Marr, where your next victim was Matthew Garrett, who was walking along the riverbank to his car. You, Brooke and Taiatani ran up to him. Brooke reached him first, but all three of you punched and kicked him. Even when he was on the ground, you kicked and punched him to the head, rendering him unconscious. You stole his camera and mobile phone powerbank. You then left him, although Brooke later returned and scratched his “tag” onto Garrett’s chest. Your offending was witnessed by the next two victims, Lara Dabscheck and Craig Fernandez. Mr Fernandez called police. Police found Mr Garrett confused, vomiting blood and with a deep laceration to the right eye. He was taken to hospital and remained there for 3 days and had a further two weeks off work. A CT scan revealed a fractured left cheekbone, with soft tissue swelling to both eyes. A CT scan of the brain revealed right scalp bruising and possible bleeding in the brain. A forensic medical report confirmed that he suffered blunt trauma to the head, face and trunk, as well as a short-term brain injury, with loss of consciousness producing vomiting, and a longer term effect of memory loss. The report noted that the bone fracture would take months to heal and he would have scarring. In his police statement, Mr Garrett stated that he did not recall details of the assault, apart from calling for help, that he continues to have difficulty generating short-term memories, trouble expressing himself, and occasional dizziness and disorientation. He is unable to raise his left eyebrow due to nerve damage.
8 The third incident, the subject of Charges 5, 6 and 7, occurred while Mr Garrett was being assaulted. The victims were witnesses Lara Dabscheck and Craig Fernandez. When Mr Fernandez went to call police, a group including Ratapu, Tuuaga and Matahiki started to punch and kick him in the head and face, stealing his phone and wallet. Other offenders knocked Dabscheck to the ground, pulled her hair, kicked her in the face, and took her bag containing her phone, wallet containing $180 and personal items. They continued kicking her even after taking her bag and being told that she did not have anything else.
9 Ms Dabscheck was taken to hospital where she was found to have suffered bruising over the right cheek bone, swelling of the nose, a laceration of her upper lip which required stitches, bruising to her left thigh and buttocks and abrasions to both elbows.
10 You were arrested near St Paul’s Cathedral at around 11.40 pm that night. You had with you a bum bag containing Mr Garrett’s camera and power bank, and a small knife. During the police interview, you initially denied knowledge of the above offending and said you just found his camera on the ground. When shown CCTV footage of you going through Mr Garrett’s backpack, you admitted being with the group but said others in the group kicked his head, and that you only took his bag once he had been knocked out. You denied hitting any of the victims, and said you were hanging out with the wrong crowd, and were only there for the money. You said your role was limited to going to see what was in the bags. You gave a number of explanations for carrying the knife in your bag: that it was there by accident; that you were carrying it for self-defence; that you did not know how it got there; that you used it at work.
11 You were granted bail on 15 June 2016. While on bail, you committed further offences on 25 August and 11 September. You also offended on 31 January 2017. This matter resolved on 3 February 2017, the day on which a contested committal was to take place, but before evidence was called. You have spent some time in Youth Detention on these further matters, but have otherwise been in adult custody on remand, in the Swallow Unit. There is 110 days of pre-sentence detention, not including today, to be taken into be taken into account. The prosecution seeks orders for forfeiture of the clothing you wore at the time of the offending and the knife that was subject of the uplifted summary charge, and also orders for a forensic sample pursuant to s. 464ZF of the Crimes Act[1]. These orders are not opposed and I will make them.
[1] (1958) Vic (“Crimes Act”)
12 Two of your co-offenders, Taiatini and Brooke, faced the same charges as you. Taiatani, aged 17, pleaded guilty to reckless cause serious injury in circumstances of gross violence and robbery in relation to victim Garrett, and was sentenced in the Children’s Court to 1 year and 10 months detention. Brooke, aged 14, pleaded guilty to 5 counts of robbery against all victims, 1 charge of intentionally cause serious injury in circumstances of gross violence in relation to Garrett, 1 charge of intentionally cause injury in relation to victim Dabscheck, and 2 charges of recklessly causing injury in relation to victims Brown and Mihailovic. He was sentenced to a 12-month supervision order without conviction.
13 The plea hearing took place over two dates: 28 March and 2 May 2017.
14 The prosecution tendered victim impact statements of Matthew Garrett and Callum Brown. Mr Garrett read his statement out in court. As a result of the injuries he suffered in the attack, he has facial scarring and damaged nerves around his left eyebrow which make him unable to move it. He sustained damage to his teeth which makes him self-conscious and which requires cosmetic treatment. He was unable to complete his final university exams because of the attack, and has had to delay applying for graduate positions. He suffered a financial loss in not being able to work after his assault. He suffers from post-traumatic stress disorder which impacts all aspects of his life: he is anxious, avoids the CBD, worries about being alone in public, avoids groups, no longer socialises at work, has trouble concentrating and is therefore no longer able to enjoy reading as he used to. His social life and his relationships with his family and partner have been adversely affected. He is anxious about going out, and goes out much less frequently than he used to. His parents worry about him when he does go out.
15 Callum Brown stated that as a result of the attack, he needed dental work and suffered soft tissue injuries which have now healed. However, the emotional impact of the attack continues: he has had trouble sleeping, is much more guarded about where he goes, and how late it is. He feels uncomfortable in public places and has had to work to replace the things that were stolen from him. He has had a security system installed at home. He is still worried, frustrated and angry at what was done to him.
16 Your counsel relied on the psychological assessments of Gina Cidoni dated 17 October 2016 and 7 April 2017, particularly her second report, which addresses the offending behaviour. Both reports were tendered.
17 Your personal circumstances are set out in her first report. You were born and raised in New Zealand in a caring and stable family home until the age of 10, spent 4 years in Australia with your family, then returned to New Zealand at 14 because of family concern about your peer group in Werribee. You came back to Australia to join your parents in Werribee in March 2016. You mother, aged 39, does home duties and your father is 40 and works as a window installer. You have 5 brothers and a sister. You are not in a relationship. Your health has always been sound. You had learning difficulties at school and left in Year 9 with only very basic reading and writing skills. In New Zealand, you did some courses in automotive trade and commerce and did some work experience in that area. You had a warehouse job in Laverton from May 2016, but lost the job after your remand in June 2016.
18 You started drinking alcohol and using cannabis at age 15 with your peers. You tried ice in May 2016 and were smoking it daily prior to your offending. On the night of the offending, you had consumed alcohol and cannabis and were intoxicated. After the offending, you were remanded in custody and then bailed on conditions including that you complete a detoxification program at YSAS. You completed the program but relapsed into ice use and reoffended.
19 Ms Cidoni assessed your full scale IQ as 73, which is only a few points above the “impaired range”. She assessed you as being anxious and apprehensive, uneasy in crowds, nervous when left alone, and engaging in obsessive-compulsive thoughts and rituals to relieve anxiety. You were having difficulty with concentration and decision-making, lacked self-confidence, and were eager to please others. You were also paranoid, hyper vigilant and depressed.
20 In her second report, Ms Cidoni confirmed her impression that you are youthful, impressionable and easily led. The impact of your low intellect is that you are challenged in reasoning, problem solving, abstract thinking, comprehending situations, making appropriate judgments, and translating an intention into action. Your behaviours might reflect poor attention and concentration, slow response times, disorganization, over-activity, mood swings, ceiling affect, anger, poor common sense, naiveté and low self-esteem. As to the impact of your low intellect on your offending, Ms Cidoni stated that you have an impaired ability to exercise appropriate judgment, make calm and rational choices or think clearly or have an appreciation of the wrongfulness of the conduct.
21 Ms Cidoni stated that you expressed remorse to her about the impact of your offending, particularly on Mr Garrett.
22 She considered that because of your low intellect, you would be open to negative influences and possibly bullying and harm, and would therefore be better suited to a young offender facility. She felt that you remain at risk of relapse into drug use and need drug treatment.
23 At your counsel’s request, you were assessed on 2 May 2017 by Youth Justice for suitability to receive a Youth Justice Centre Order, pursuant to s.32 of the Sentencing Act 1991, and were found to be suitable to receive such an order. The report notes that when you first engaged with YSAS, you probably did not fully disclose your ongoing use of ice, and that while on bail you admitted that you had trouble resisting negative influence from your peers, and that you were continuing to use cannabis. You were in Youth Justice for a short period and engaged in all programs, enjoyed school and behaved well. When bailed again between November 2016 and late January 2017, you were more willing to control your cannabis use and were helped by your family moving to live away from your negative peer group. You returned negative drug screens.
24 Currently you are in a general population unit with sentenced prisoners who are all older than you. You work in the warehouse for 7 hours each day and therefore do not attend any programs. You expressed a desire to return to Youth Justice so that you could go to school and improve your literacy to help you get a job. The authors of the report consider that you are now being more honest and productive, but present as particularly immature and impressionable. They concluded that given your youth, limited experience in an adult prison, and borderline range of intelligence, you are likely to be subject to undesirable influences in an adult prison. You have expressed your remorse to them, particularly since hearing Mr Garrett read out his victim impact statement in court. They consider that you have reasonable prospects of rehabilitation, which would be strengthened if you were able to access more education and offence specific counselling, both of which are available in the Youth Justice system.
25 The Crown made submissions which may be summarised as follows. Your offending is objectively serious and the conduct comprising the charge of reckless cause serious injury is a mid-range example of this offence. There were a number of aggravating features of this offending. Firstly, the seriousness of the injury – both short term in causing blood loss and loss of consciousness, and long-term in terms of dental damage, post-traumatic stress disorder and scarring above the eye. Second, Mr Garrett was a vulnerable victim, walking alone at night, and the attack against him was unprovoked. Third, the offending was in company. Although you were the last of the group to approach Mr Garrett and the first to leave, you also struck him and are responsible, along with your co-offenders, for all of the injuries suffered by him.
26 In addition, the robberies are also serious. They occurred at night, against vulnerable victims, in company, and involved some degree of planning, with one of the group, Brooke, nominating the victims. The offending against Dabscheck also involved the reckless causing of injury. Given the prevalence of street violence, particularly in the CBD, general deterrence, specific deterrence and community protection are important sentencing principles. Although you come to court as a first offender, and any sentence of confinement may weigh more heavily upon you than another offender due to your limited intellect and vulnerability to suggestion or pressure by others, your prospects of rehabilitation, says the Crown, must be viewed as guarded in the light of the further similar offending which occurred when you were on bail in relation for this matter. In addition, the seriousness of the offending reduces the weight that can be given to your age.
27 The Crown concedes that your early plea of guilty is evidence of remorse and has utilitarian value, although it is noted that when interviewed you reluctantly acknowledged being present.
28 Finally, the Crown submitted that a sentence of immediate confinement is the appropriate disposition, and, given the conclusion of the Youth Justice report, confinement in a Youth Justice Facility is also appropriate.
29 Your counsel conceded the seriousness of your offending but pointed out some features which keep it below the most serious examples of this kind of offending: there was no use of a weapon, the offending was opportunistic and not suggested by you, and you were the least involved in the offending against Mr Garrett. She submitted that parity was of some relevance because you were aged only 18 years and 1 month at the time of offending. It was submitted that limbs 1, 3, 5 and 6 of Verdins[2] are enlivened. Firstly, in that your reduced intellectual functioning reduces your moral culpability and makes you a less appropriate vehicle for denunciation and general deterrence and secondly, your level of functioning and your youth will impact on the way you serve your sentence and your ability to navigate in the prison system, and will make you more vulnerable both physically and mentally. It was submitted on your behalf that a period of detention of less than 3 years is sufficient to meet all the purposes of sentencing in this matter.
[2]R v Verdins (2007) 16 VR 269 (“Verdins”)
30 The basic purposes for which a court may impose a sentence are denunciation, punishment, specific and general deterrence, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
31 I have taken into account all the material tendered and all the matters put in mitigation on your behalf, which I accept. I note that these are largely, (apart from a disagreement with the prosecution about which Verdins principles are enlivened and about your prospects of rehabilitation), unchallenged by the prosecution, who conceded that a period of detention in a Youth Justice Centre is an appropriate disposition.
32 I consider that the offending overall, particularly the acts of violence against the victims, is serious, for the reasons already outlined by both counsel. I consider that your moral culpability is somewhat reduced by your low intellectual functioning because the volition, self-control and ability to exercise appropriate judgment present in a person of ordinary intelligence are lacking in your case, and that therefore some moderation of general and specific deterrence is appropriate, particularly as a consequence of your low intellectual functioning, making you susceptible to negative peer influence. Your history of drug use appears to be related to your reduced intellectual functioning and vulnerability to negative peer pressure. I also accept that your time in detention will be more onerous because of the difficulties that you experience.
You have shown in a brief period of youth detention that you can engage meaningfully with programs and abstain from taking drugs. You have a supportive family who has been prepared to move away from an area that exposed you to negative peer influence. You have no prior convictions as an adult, pleaded guilty to these offences at an early stage, and have shown genuine remorse for your conduct, particularly in relation to Mr Garrett and Mr Brown. You have spent almost all of your time on remand, 110 days, in an adult prison, which you have found onerous and intimidating, but you have also developed a strong desire to improve your education so as to help you get work in the future, and have shown some ability to remain drug free.
I consider overall that a period of detention is necessary to meet all of the purposes of sentencing in this matter. I consider that you have reasonable prospects of rehabilitation, and that given your youth, reduced intellectual capacity, and impressionable disposition, any term of detention would be most appropriately spent in a Youth Justice Centre.
33 I must also do my best to take into account the sentencing principle of parity, and have considered the sentences that were imposed on your co-offenders in the Children's Court.
34 I therefore sentence you as follows. Would you please stand?
35 You are convicted on all charges.
36 On Charge 3, that of reckless cause serious injury, you are sentenced to 6 months’ detention in a Youth Justice Centre. This is the base sentence. On Charge 7, recklessly cause injury, you are sentenced to 3 months’ detention in a Youth Justice Centre. The sentence on Charge 7 is to be served cumulatively on the sentence imposed on Charge 3. On Charge 1, robbery, you are sentenced to 1 months’ detention in a Youth Justice Centre. On Charge 2, robbery, you are sentenced to 1 months’ detention in a Youth Justice Centre; on Charge 4, robbery, you are sentenced to 1 months’ detention in a Youth Justice Centre. On Charge 5, robbery, you are sentenced to 1 months’ detention in a Youth Justice Centre. On Charge 6, robbery, you are sentenced to 1 months’ detention in a Youth Justice Centre. The sentences on Charge 2, 4 and 5 are to be served cumulatively on the sentence imposed on Charge 3.
37 The total effective sentence will be that of 12 months’ detention in a Youth Justice Centre.
38 In relation to the uplifted summary offence of possessing a controlled weapon without excuse, being a knife found in the bag you were carrying, I propose to convict and fine you the sum of $200.
39 The presentence detention to be declared as having already been served is 110 days, not including today.
40 Pursuant to s.6AAA of The Sentencing Act, but for the plea of guilty I would have sentenced Mr Hanson to a term of 18 months’ detention in a Youth Justice Centre.