Director of Public Prosecutions v Hart

[2018] VCC 311

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-02240

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE HART

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	19 March 2018
CASE MAY BE CITED AS:	DPP v Hart
MEDIUM NEUTRAL CITATION:	[2018] VCC 311

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 D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr B. Newton	Stephen Peterson Lawyers

HIS HONOUR:

1Jake Hart, you have pleaded guilty to one charge of theft and one charge of armed robbery on an indictment.  Those crimes carry maximum penalties of ten years and 25 years, respectively.

2You have also pleaded guilty to a number of summary matters, which as I understand it all carry monetary penalties or imprisonment for no more than three months.

3Let us do this from the outset.  There is charge of - you have pleaded guilty to those through your counsel.  Contravene a bail condition, proper management of gaol charges by two and committing an indictable offence whilst on bail; charges by two.  On each of those imprisonment for seven days for each of them, cause I cannot make them an aggregate and they will be concurrent with any other sentences imposed.

4On the assault an emergency officer, you cannot spit at people, on that, even though it is not the worst example of it, is 30 days.  That will also be concurrent.

5In this particular situation there is a co-accused who was significantly older than you, with a very much longer criminal history, who in a rolled up, or consolidation, received 20 months with a minimum term of 12.  He pleaded guilty to robbery as opposed to armed robbery, but had a number of other significant crimes, for which he was sentenced at the same time and clearly I have to take that very much into account on your behalf.

6You are 26 years of age.  You are still therefore a relatively young offender.  You pleaded guilty at the earliest reasonable opportunity.  I accept that that plea of guilty is accompanied by appropriate remorse and you must, of course, get the utilitarian benefit of it.  It is also the situation that you were in a fairly drug and alcohol affected set of circumstances at the time the offending occurred, and I accept that you were by and large stealing food - stealing food simply to eat it.  When you speaking to police you made fulsome admissions as to your offending and as to the lifestyle that you were living.

7The circumstances of the offending where that the shoplift involves, basically, stealing half a dozen chops from Coles.  But what is much more serious is the armed robbery.

8You were living in a boarding house in McMillan Street in Morwell, which I am aware of.  You were there with a Mr Wilson who, as already indicated, was much older than you.  You decided that you were going to go, between the two of you, up to Coles to do an armed robbery.  I think in these circumstances you did go there with the intention of trying to get a till or money.  In any event you collected a steak knife and hid it and the two of you then went up to Coles.

9At around 2 am you arrived at the Midvalley Shopping Centre, which was closed.  You then walked off to the United Service Station nearby, with the intention of committing an armed robbery.

10The victim was working as a console operator, opened the doors allowing you, Mr Hart, to enter the store.  Mr Wilson remained outside keeping watch.  You went to a fridge where you selected a can of energy drink, bottle of lemonade and walked to the counter.  You asked for John Player Special Tobacco and Tally-Ho rolling papers.  You were given that and they have a retail value of $41.15.  The victim then asked you to pay.  You then removed the steak knife from your front pocket, which was still concealed.  However, the tip was pointing through.  You had one end in your jacket pocket, you put one knee up onto the counter and you said, "I have a knife and a gun, open the till or I'm going to kill you".  At that point in time you have committed an armed robbery with a very serious and very frightening threat.

11The victim then pressed the security alarm button and phone 000 to report the robbery.  You collected the items from the counter and ran back to the door.  He hit the button, locking the doors, which stopped you exciting. 
Mr Wilson, then began using force on the doors to get them open.  You also used force and eventually the pair of you were able to get a gap big enough to put the stolen items through.

12You then went back to the counter and again pointed the knife at the victim, making a further demand to open the till and the doors or you would kill him.  He unlocked the doors and you then ran out.  You then ran and hid from police but they eventually found you and arrested you.  You made admissions and it probably sufficient to identify you off the CCTV, in any event.  But I do give you very much the benefit for that.  As I have indicated, in your record of interview, you made fulsome admissions and that is to your credit.

13Obviously, while this offending was all taking place you committed the offences of breach of bail condition and committing indictable offences on bail, and the other offending was that when you were ultimately arrested in Adelaide, do not know how you get there, you were brought back to Victoria and you were in cells at the Morwell police station.  You were observed putting clothing around your neck, which I accept was for the purpose of at least endeavouring to take your own life.

14You were then resistant and you were placed on the floor to be restrained.  It was at that point in time that you spat in the direction of the custody officer and whilst I accept it was a fairly distressing set of circumstances, that is simply not on.

15There were then other matters of putting bread on a camera and urinating on the floor, which give rise to the act prejudicial to the security of the gaol.

16The summary offending, which has all been uplifted, is not of massive significance; nor is the Charge of theft, which is the shoplifting.  However, it is a serious example of armed robbery, albeit, I have to take into account the parity of your co-accused and your still relative youth.

17I think a gaol sentence of some description was inevitable and in all the circumstances I took the view, or have taken the view, that it is one where there should be a minimum term involved.

18A report from Mr David Ball was tendered on your behalf and I have read that report, and take into account what is contained within it.  You gave him your history and there is potted version of it contained within your counsel's submissions.

19Your parents separated when you were very young and you first met your biological father, who was a German tourist, when you were 17 at your mother's funeral.  The passing away of your mother was obviously a very, very powerful influence on you and it was the last time that you saw your natural father and apparently the only time.

20Your stepfather was apparently a violent man.  You were able to get through to Year 10 at school.  He was in the military and you went to a large number of schools during that period of time, which is always very disruptive and of very little help to a young person.

21Your stepfather threw you out after your mother's funeral.  From that time on you basically lived on the streets.  You were living under the railway bridge at the Melbourne Aquarium when you were very seriously assaulted in the same year that your mother had died.  You would have been about 18 when that occurred.

22Undoubtedly, there would be underlying post-traumatic stress involved in all that and Mr Ball says you had a persistent depressive disorder.  He describes you as immature, with impairment to your capacity to exercise good judgement.

23Insofar as your health is concerned, you have suffered from severe epilepsy and had many admissions to hospital since you were a very young boy.  That is confirmed by the documentation that Mr Ball was able to obtain.

24Since you have been in custody you have undertaken some courses.  You have been endeavouring - you achieved fulltime work in the kitchen, seven days a week.  You would do factory work, if you were asked to.  You have been given clean urine samples and your instructions, which I accept, to your counsel are that you have not been using illicit drugs.

25Unfortunately, you have had no visits or phone calls from family or friends whilst in custody and that is unfortunate.  Obviously, because I will be imposing a parole period, you will have to get onto finding, at least, or getting assistance in finding accommodation in such matters for your ultimate release or, as you know full well, you will have difficulty.

26The original submission was for a community corrections order, but I think in your situation it was ultimately - not, well, ultimately conceded by counsel, it is more - because of your relative lack of prior convictions, your youth and your compliance within the prison system, would be better off with a head term and a minimum term.

27The prospects of your rehabilitation should be pretty good if you can stay off the drugs and stay of the alcohol and the risk of you reoffending, bearing in mind your relatively good history, should be pretty low.

28You have now been in custody for a period of 192 days for these matters.  There is 12 days of Renzella time that can be, at least, notionally tacked onto that.  And I think that is about all I need to say.

29The offending, that is the armed robbery, has to be regarded as serious and is.  You simply cannot do it despite your age and despite the circumstances in which you were living at the time.

30Accordingly, I will sentence on the summary matters as I have already indicated.  On the indictable charge of shop lifting, seven days; on the charge of armed robbery, two years.  Because of your age I direct that you serve a minimum term of 12 months before becoming eligible for parole.

31I note also that there has been a significant period of time when you were in lockdown, because of the fire at Port Phillip.  And I understand, though I do not take this into account in a mathematical sense, that the authorities may give you some benefit for that, in terms of the calculation of the balance of the sentence that you have to undergo.

32That leaves you with sufficient time to reflect on what you do when you get out and I simply suggest to very strongly, Mr Hart, that you get something into place, just do not walk out the door.

33All right, no other orders I need to - 6AAA, three with a two.

34MR O'DOHERTY:  PSD.

35HIS HONOUR:  Yes, we already have, 192 days PSD.  All other matters are concurrent with the armed robbery charge.

36MR O'DOHERTY:  Yes, Your Honour.

37HIS HONOUR:  No other orders I need to make?  All right, well, what I'll do - what, five minutes?

38MR O'DOHERTY:  Yes.

39HIS HONOUR:  And we just come back and get that sorted?

40MR O'DOHERTY:  Yes.

41HIS HONOUR:  All right, yes.  Thanks, Mr Newton.

42MR NEWTON:  As Your Honour pleases.

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