Director of Public Prosecutions v Hardham-Jones

[2016] VCC 1820

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01445

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON ALEXANDER HARDHAM-JONES

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2016
DATE OF SENTENCE:	28 November 2016
CASE MAY BE CITED AS:	DPP v Hardham-Jones
MEDIUM NEUTRAL CITATION:	[2016] VCC 1820

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Armed robbery – robbery – accused assaulted in custody -

Legislation Cited:  
Cases Cited:  The Queen v SH [2006] VSCA 83
Sentence:  11 months’ imprisonment and an eighteen month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Accused	Ms J. Smith	Stary Norton Halphen

HER HONOUR:

1Clinton Hardham-Jones, you have pleaded guilty to one charge of armed robbery and one charge of robbery.  The maximum sentence for armed robbery is 25 years' imprisonment.

2The circumstances of your offending were set out in full in the Crown opening on the plea and I sentence you on the basis of the facts set out in that document.  Those circumstances may be briefly described as follows.

3You were 36 years old at the time of the offending and were working part-time as a butcher.  Both offences were committed within a few minutes of each other on Friday 6 May 2016.  The robbery was committed at a bottle shop at 8.07 pm.  You waited for a customer to leave, told the attendant to keep the till out, put your bag on the counter, said you had a gun and demanded the notes.  You took about $275 from the till and fled the store.

4You committed the armed robbery at about 8.10 pm that night when you entered the Subway store across the road from the bottle shop, took a bottle of Coke and placed it next to the till, put your bag on the counter, and demanded money from the attendant, Nicholas Perkins (aged 18).  Mr Perkins told his fellow staff member, Sarah Hayes (aged 15), who was serving another customer, to call police.  Mr Perkins threw $230 from the till onto the counter.  You took a can of deodorant and a lighter out of your bag, pointed it towards his head, told him you were serious and started putting the money in your bag.  You then lit the lighter, blew the flame towards Mr Perkins and began to walk out of the shop.  Mr Perkins followed you and when you got to the door you turned and blew another flame towards Mr Perkins.  Mr Perkins jumped back with his hands up and moved backwards.  Your offending in the Subway store was captured on CCTV footage.

5You ran out of the store and were apprehended by police a few minutes later.  You were found in possession of $710, a lighter, deodorant can, ice pipe, gloves, a backpack and other personal items.  You were in a drug affected state and were taken to Box Hill Hospital where you were later interviewed.  You made admissions but were unable to give a reason for your offending.  You told police you had used ice four days prior to the offending and had been affected by it ever since.

6The matter resolved at the earliest possible opportunity.  You offered to plead guilty on 11 August 2016 and entered guilty pleas at the committal case conference on 18 August 2016.  You have been in custody since 6 May 2016.  You spent two weeks in the Ringwood police cells on 23-hour lockdown. You were transferred to the MAP on 18 May 2016.  While working in the kitchen there, you were assaulted by another inmate who was upset at being unable to get a second helping of dessert.  He attacked you from behind with a kettle.  You sustained serious facial fractures, lost all of your top teeth and all but six of your bottom teeth.  You spent over a week in hospital, where you underwent surgery to repair fractures.  You still require further surgery to implant an upper row of teeth.  After the assault you were transferred to Marngoneet Correctional Centre then to Port Philip Prison and more recently to Hopkins Correctional Centre where you remain in protective custody.

7Your only previous conviction was on 11 March 2016 for a string of dishonesty offences including theft, obtain property by deception, attempted burglary, combined with other offences including go equipped to steal, fail to answer bail, criminal damage, possess methylamphetamine for which you received a
24-month community corrections order. You have previously spent three short periods of 17 days, 18 days and 14 days in prison in relation to the prior matters but were able to get bail.

8There were victim impact statements from the Subway store attendants, Nicholas Perkins and Sarah Hayes which were tendered by the prosecution at the plea hearing.  Mr Perkins stated that he was frightened during the incident and worried about his young co-worker.  For a while afterwards, his sleep was affected and he found it hard to return to work.  He also had some flashbacks of your face but he has moved on since then although he is more aware of his surroundings.  He did not require counselling.  He did not consider that the incident affected his life in any way that would impact on his future.  

9Ms Hayes stated that she was shocked during the armed robbery and worried for her co-worker who was directly threatened by you.  Over the ensuing months, she noticed a change in her attitude towards all aspects of her life.  She sought counselling from her school counsellor.  She was very emotionally distressed by your offending and is still very aware of her surroundings.  However, she forgives you and expressed concern for the impact your offending has had and will have on your own life.

10Your personal circumstances were outlined by your counsel.  You are 36 years old.  You were raised by your grandparents from the age of three as your father spent 30 years in prison for bank robberies and your mother had addiction issues.  You completed Year 9 at school and then undertook an apprenticeship in butchery.  You were apprentice of the year for your first two years.  You completed the apprenticeship and then worked full time as a butcher for 21 years, the last eight for Coles and Woolworths.  You have been married for 14 years to a woman with no prior convictions and no drug issues, who worked as a store manager and pharmacy assistant before your son was born in early 2013.  Until that time, you had no drug issues.

11However in 2013, your son was born and you moved house.  According to your wife, who gave evidence on your behalf at the plea hearing, things began to change in 2014.  Whereas you had previously done everything together and never spent time apart, you began to go out alone, come home late, spent time in the garage and not answer your wife's calls or texts.  You became secretive and would not tell your wife what was going on. Your sister died and you became more distant.

12It was only after some persistent questioning that you admitted to her that you were using ice.  You were able to maintain your employment until you began offending in October 2015 to support your habit.  You were fired from one job when you did not attend work.  Your wife only learned of your dismissal when she rang you at work and was informed that you no longer worked there.  You were arrested in October 2015.  Your wife suffered a flare-up of her ulcerative colitis in late 2015 and was in the hospital for one week but you did not visit her.  You were unable to overcome your ice addiction during the brief spells that you spent in prison prior to being remanded for the current offending.

13Whilst on remand, you have used your time productively, working first in the kitchen then in the nuts and bolts department.  You have also had two clean drug screens and at the time of the plea you were waiting the results of two further screens which I understand were negative.

14MS SMITH:  Your Honour, Your Honour only has two.

15HER HONOUR:  Two.  There are just the two?

16MS SMITH:  Yes.

17HER HONOUR:  All right.  So you have had two further drug screens as at the time of sentence.  You have also completed a number of courses including food handling, release-related harm reduction and a court readiness program along with a prison legal education.  Most importantly, you have attended a seven or eight-session program of Narcotics Anonymous.

18Your wife stated that you have expressed remorse to her for your actions and for the grief caused to her and to your victims.  She is prepared to give you one last chance to put these events behind you.  She has said that you are committed to getting your life back on track.  She has told you that she will stick by you one more time but that if you use ice again, your marriage will be over.

19Your counsel relied on a number of factors in mitigation.  Firstly, that your time in prison has been more burdensome because of the injuries you sustained in the attack on you - which required hospitalisation and surgery - and because you have been held in protective custody since that time.  You do not feel particularly safe in that environment because of the other inmates being held there.  Your counsel relied in this regard on the decision in The Queen v SH [2006] VSCA 83, to which I will return below.

20Secondly, that there has been hardship to you in being separated from your family and in knowing that your offending has caused significant financial and emotional hardship to your wife.  

21Thirdly, your plea at the earliest opportunity has utilitarian value and warrants a substantial discount, as the state has been spared the expense of committal proceedings and trial as well as the inconvenience and upset to witnesses from having to attend court to give evidence.  

22Fourthly, in addition to the remorse which inheres in your plea of guilty, you have expressed remorse to your wife and to Dr Cunningham for the offending and recognise the impact the offending has had on your family and on the victims.

23Your counsel emphasised the protective factors which are relevant to your prospects of rehabilitation.  You have a vocational qualification and a long history of full-time employment.  You have a limited criminal history which commenced only a few years ago in the context of your addiction to ice.  You are a committed family man, had stable accommodation and are supported by your wife who has no criminal history and no association with drugs.

24Your counsel also relied on the report of Dr Aaron Cunningham, forensic psychologist, dated 25 November 2016.  You told him that you had used cannabis and experimented with amphetamines between the age of 16 and 26, and that everything started going downhill from about 2102 when you were introduced to ice by a so-called friend.  You told Dr Cunningham that you can sometimes be easily influenced by peers.  Your drug use increased over the four years.  You have received an ultimatum from your partner that if you relapse the marriage will be over.

25Dr Cunningham said that the assault in prison has affected you in that you have trouble eating with only six remaining teeth, have facial numbness, have difficulty sleeping, and are more anxious around people.  He diagnosed an adjustment disorder with anxiety and depressed mood following the assault.  He noted that you maintained stable relationships, accommodation and employment until you started using drugs and associating with other users.  He noted that you told him that you were "shattered and gutted" by your offending.  

26He felt that you have several current protective factors:  a supportive partner and an extended family particularly your grandparents, an impressive work history, and attendance at numerous programs whilst in custody particularly attendance at the maximum available number of sessions of Narcotics Anonymous.  He concluded that your time in jail has been particularly onerous because of the assault and its consequences both physical and psychological.  He notes that you perceive the prison environment as threatening and traumatic, and that your paranoia and anxiety have increased.  

27You are apparently not currently engaged with appropriate mental health support.  You have difficulty eating and suffer facial numbness and these symptoms are ongoing triggers for your trauma.  You need psychological treatment for your adjustment disorder and require monitoring by psychological staff to ensure that your adjustment disorder does not escalate into post-traumatic stress disorder.  You would benefit from returning to the workforce and to your supportive family.  Engaging with counselling and maintaining community supports would reduce your risk and enhance your rehabilitation.

28A report from Corrections Victoria dated 16 November 2016 assessed you as suitable to undergo a community corrections order with a number of conditions.

29It was submitted by the Crown that the principles of general deterrence and denunciation are important in relation to this conduct which involves offending at night against soft targets, convenience and other stores, which mainly employ young staff.  In addition, specific deterrence is a relevant consideration because you committed these offences whilst on a community corrections order in respect of extensive other offending.  The Crown submitted that a sentence of imprisonment involving further time in prison is appropriate.

30In sentencing you, I have taken into account in relation to offences such as armed robbery, denunciation, general deterrence and protection of the community are of particular significance.  Employees in stores are entitled to do their work in safety and there is no doubt that your action caused fear and apprehension to both attendants.  The seriousness of the offence of armed robbery is reflected in the maximum sentence of 25 years' imprisonment.  The armed robbery did not merely involve the presence of the fuel and lighter.  You actually ignited the fuel twice, one of these times near the victim's face.  Fortunately the victims of this offending did not suffer physical injury at the time and they have indicated that they have not suffered long-term trauma as a result of your actions.  Specific deterrence is a relevant consideration in your case because you were on a community corrections order at the time of this offending.

31I have taken into account all the mitigating factors mentioned by your counsel including your plea of guilty, your remorse, the time spent in police cells, the injuries you suffered as a result of  being assaulted in prison both physical and psychological, the need for further surgery in the future, the fact that you have no upper teeth and very few lower teeth since the assault, have difficulty chewing, suffer from facial numbness and from anxiety, paranoia and depression, the fact that you have been in protective custody since the assault and the hardship at being separated from your family and having caused your wife financial and emotional hardship. 

32In relation to the injuries you sustained as a result of the assault in prison, your counsel relied on the decision of The Queen v SH, where the Court of Appeal noted at paragraph 22 that prisons are intended to achieve retribution, deterrence and rehabilitation through exclusion from the community and deprivation of freedom and should not be places where prisoners are subjected to punishment over and above that ordered by the courts.

33I accept Dr Cunningham's assessment of the impact of the assault upon you.  The consequences of the assault, both physical and psychological, are serious indeed.  These are matters of concern which make incarceration more burdensome for you and which must be given some weight when fixing an appropriate sentence.

34As to your prospects of rehabilitation, having regard to your skills, work history and experience, the efforts you have made to date in prison to rehabilitate yourself by working, attending courses including those in harm reduction and prison legal education, demonstrating negative urine screens and attending Narcotics Anonymous, I consider that if you were to successfully undertake further drug rehabilitation courses and obtain psychological counselling in relation to the underlying issues which led to you being vulnerable to becoming addicted to ice at the age of 32, those prospects are good indeed.

35In all the circumstances, I consider it appropriate to fix an aggregate sentence in respect of your offending, which occurred over a very short space of time and was of a similar nature. In the light of the factors outlined above, I propose to impose a combination sentence of imprisonment and a community corrections order.  I sentence you to 11 months' imprisonment combined with a community corrections order of 18 months duration with conditions including mental health treatment and drug treatment and supervision.  

36I declare that you have served 206 days of pre-sentence detention not including today and I order that this be declared as time already served and entered into the records of the court.

37In addition to the conditions I have specifically imposed, you must also abide by terms that apply to all community corrections orders.  These are: that you must not commit any other offences during the period of the order being in force - that is, the 18 months from the day of your release - any offence for which you could be imprisoned even if a court would not choose to impose imprisonment.  You must report to and receive visits from a community corrections officer.  You must report to the Community Corrections Centre at Lilydale within two clear working days of your release if Lilydale is the appropriate address.  If it is not, obviously it will change.  Do I need to specify the release date?  No, it'll ‑ ‑ ‑

38MS SMITH:  No, Your Honour.

39MR ROPER:  No, Your Honour.

40HER HONOUR:  No, all right.

41Also, you must not leave Victoria without first getting permission from a community corrections officer and you must inform the Community Corrections Office of any change of address, where you live or work, within 48 hours of that occurring.  Finally, you must obey all lawful instructions from, and directions of, community corrections officers.

42Do you understand the conditions I have imposed and the general terms that apply?

43OFFENDER:  Yes, Your Honour.

44HER HONOUR:  Before you consent to making such an order, you must understand that the contravention of any condition attached to the community corrections order - except for a contravention of a direction by the Secretary - is itself an offence punishable by three months' imprisonment.  Contravention of a community corrections order carries with it the prospect that you will be brought back before me and resentenced for the original offences.  Do you consent in those circumstances to the imposition of such a community corrections order?

45OFFENDER:  Yes, Your Honour.

46HER HONOUR: Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty I would have sentenced you to 16 months' imprisonment and an 18-month community corrections order.

47I also note that there are ancillary orders sought; two restitution orders and a disposal order that were sought by the Crown and your counsel indicated that they are consented to.  I will make these orders and sign those now but firstly I will get you to sign the community corrections order.

48I have not included a work component because of the desirability of Mr Hardham-Jones in the circumstances being able to resume full employment at the earliest opportunity.

49MS SMITH:  Your Honour, may I approach the dock?

50HER HONOUR:  Yes, of course.

51Mr Hardham-Jones can be removed, thank you.

52Thank you, we will adjourn.

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