Director of Public Prosecutions v Hawkins

[2019] VCC 147

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01448

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAYDEN HAWKINS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Hawkins
MEDIUM NEUTRAL CITATION:	[2019] VCC 147

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	Ms Malobabic (For Plea) Ms L. Treasure (For Sentence)
For the Accused	Mr Moody (For Plea) Mr T. Fitzpatrick (For Sentence)

HIS HONOUR: 

1Shayden Hawkins, you have pleaded guilty to the following offences which carry the following maximum penalties:

·    two counts of aggravated carjacking; each carry a maximum penalty of 25 years imprisonment;

·    two counts of armed robbery, each carry a maximum penalty of 25 years imprisonment;

·    two counts of theft, each carry a maximum penalty of 10 years imprisonment;

·    one count of criminal damage, that carries a maximum penalty of 10 years imprisonment;

·    one count of reckless conduct endangering life, that carries a maximum penalty of 10 years imprisonment;

·    one count of recklessly causing injury, that carries a maximum penalty of five years imprisonment;

·    one count of wilfully damaging property, that carries a maximum penalty of 25 penalty units or six months imprisonment;

·    evading police, that carries a maximum penalty of 60 penalty units or six months imprisonment; and

·    committing an indictable offence whilst on bail; that carries a maximum penalty of 30 penalty units or three months imprisonment.

2Section 10AD of the Sentencing Act provides that on the offence of aggravated carjacking I must impose a custodial sentence with a minimum non-parole period of three years unless special reasons exist. I shall return to that matter later in the sentencing remarks.

3You have admitted an extensive list of prior convictions. You have numerous prior convictions for robbery, attempted robbery, damaging property, prior convictions for armed robbery and attempted armed robbery, assault, recklessly causing injury and breach of bail conditions. I will return to the significance of these matters later in these sentencing remarks.

4The prosecution tendered openings in respect of your offending. An outline of your offending is as follows.

5I turn first to the offending in respect to indictment AJ11097304. On 11 April 2018, you were in the company of Empria Morell and Kelly Colquhoun. Colquhoun texted the victim in this matter Anthony Schloss asking if she could borrow his car. The victim had met you previously but did not know your real name.

6The victim’s girlfriend met up with Colquhoun. Colquhoun drove Mr Schloss in his, that is the victim's car, to a reserve in North Frankston where she parked and got out and walked to a row of nearby houses.

7Whilst Colquhoun was out of the car, Mr Schloss moved to the driver’s seat. After a period of time, Colquhoun ran back to the car. You and Ms Morrell followed behind her. You were wearing a hoodie and attempting to cover your face. Colquhoun took the keys from the ignition. As she did so you approached Mr Schloss. You produced a large knife and threatened him saying “your car or your life”. You got into the front passenger seat and Morell drove the car away.  That's the first charge of aggravated carjacking (charge one aggravated carjacking).

8You were on bail at the time having been bailed on 23 February 2018 to appear on charges of affray and intentionally causing injury and that is the offence of committing an indictable offence on bail (commit indictable offence whilst on bail).

9You were arrested on 28 April 2018. During a record of interview you denied involvement in the offending.

10Your co-offender Morell pleaded guilty to carjacking on the basis that she was not complicit in your use of the knife during the offending. She was sentenced to 120 days' imprisonment with an 18 month community corrections order. Colquhoun is pleading guilty to carjacking on the basis that she was not complicit in your use of the knife during the offending. She has not been sentenced to date.

11The next offence of aggravated carjacking occurred on 25 April 2018 in Carrum Downs. This time you were in the company of Harry Worland. In this instance, the victim Tristen Ryan drove his car to the Subway food store on Hall Road Carrum Downs. He was waiting to pick up his cousin. At approximately 9:30 PM, the car pulled up behind his. You and Worland got out of the car and approached the driver's side of the victim’s car. Worland banged on the window and said “get the fuck out of the car". You were standing behind Worland holding a piece of wood as a club. You shouted at the victim "get out of your car, give us your wallet or we are going to beat you with the club”. The victim got out of his car gave his wallet to Worland and you told him to walk away. You and Worland drove his car away.  That is the second count of aggravated carjacking that appears on indictment J11134789.

12Using Mr Ryan’s car, the pair of you drove to the United service station in Thompson Road, Patterson Lakes.

13At approximately 10:50 PM the victim, Mr Thri Thotra was working at the store. You entered wearing a black mask with a white devil on it, black gloves and a hoodie. You were armed with a stick. Worland was disguised and carrying a backpack. Your co-offender demanded money from Mr Thotra. You repeatedly smashed the computer screen on the cash register with the stick yelling “give me the money”. Your co-offender grabbed cash and cigarettes and passed it to you. That is the first count of armed robbery. He elbowed the victim in the eye, breaking the victim’s glasses. That is the count of wilfully damaging property. As a result of this the victim suffered bruising and swelling to his eye and a small laceration to his face. That is the count of recklessly causing injury. The criminal damage occurred when you smashed the computer screen.

14You were captured on the store’s CCTV footage.

15At 4:20 AM the following morning were seen driving by police along the Frankston Dandenong Road in Seaford. Police began to follow and you took off at a fast rate of speed. You travelled on the wrong side of the road passing through a red light at the Seaford Road where you entered the freeway. Police activated flashing lights but as you continued to travel at a dangerous speed, due to safety concerns, the police did not conduct a pursuit. That is the count of evading police (failed to stop on police request).

16On the same day, 26 April 2018, you stole petrol from a BP service station and two cases of 24 pack Wild Turkey bourbon. They are the two charges of theft.

17At approximately 6:30 AM on 27 April 2018, you and Worland entered the Hungry Jack's food store in Mornington. Both you and your co-offender had your faces covered. You were carrying a screwdriver. Worland demanded money. The victim immediately opened her cash register and pulled out all of the notes in the register and handed them to him. He demanded that she open a second cash register but she could not get it open. He then demanded money from the safe. The victim opened the drive-through cash register and removed the tray. You jumped the counter and approached the victim and demanded money from the safe. You held the screwdriver 2 – 3 cm from her stomach. You followed her to the manager’s office and stood by her as she took money out of the safe. In all, you stole about $2000 cash. That is the second count of armed robbery.

18At about 10:40 PM on 27 April 2018 police saw the stolen car you were driving and activated lights and sirens. You had passengers in the car. You took off along the Frankston Dandenong Road travelling at an excessive speed on the wrong side of the road towards oncoming vehicles which were forced to slow down to avoid a collision. You were arrested a few minutes later. When interviewed by police later that evening, you made a no comment record of interview.

19You pleaded guilty to all offences on 12 July 2018. The Crown agrees that this plea was made at the earliest opportunity.

20The offence of aggravated carjacking is very serious. The community’s concern at this offence and its rising prevalence was manifested by Parliament enacting legislation to require a judge to sentence an adult offender convicted of this offence to a custodial sentence with a non-parole period of not less than three years unless special reasons exist. The offence overall carries a maximum penalty of 25 years' imprisonment.

21The offence of armed robbery is also viewed as a very serious offence. The maximum penalty of 25 years indicates that the offence, whenever committed, is one of the utmost gravity. Your actions, in concert with your co-offender on both occasions, were calculated to cause considerable intimidation and fear in your victims.

22Your actions in smashing the computer screen and the use of violence by Worland against Mr Thotra deserve condemnation.

23Then, at Hungry Jack's, you held a screwdriver to the stomach of your second victim, a young female. You persisted to menace her as she complied with all of your demands. Your actions were a low, nasty form of offending. Your actions were abhorrent. Your plea of guilty and the saving of the victim from being required to give evidence is the only mitigating circumstances in the Hungry Jack's armed robbery.

24The community is thoroughly sick of offenders like you targeting soft victims with no capacity whatsoever to resist armed robberies. There is a high demand for fast food services and other retail and service providers to be open late into the night and early in the morning. The operators and retailers that staff these venues deserve the full protection of the community and the law.

25The victim impact statement of the Hungry Jack's victim speaks of the devastating effect your intimidation and aggression has had on her. I will take full account of the need to protect her and the people that work in her industry who stand in these shops every night and early every morning.

26Both your instances of driving were high risk – to you, to your passengers, to other road users and to the police who tried to intercept you.

27And, finally, your offending on bail speaks of the breach of trust reposed in you by the courts.

28All of your offending across April 2018 provide very serious examples of these types of offences.

29It was submitted on your behalf that the carjacking, and also the armed robbery on the service station, were simplistic, unsophisticated and largely unplanned. It is apparent however that the carjacking on the victim, Anthony Schloss certainly had an element of planning and coordination to it. Whilst I may accept that your offending was relatively unsophisticated, it was accompanied by a level of threat and intimidation which nevertheless renders your moral culpability as high. Your offending overall must be met by principles of general deterrence. Given your prior convictions, an element of specific deterrence is also required. Your endangerment of the community by your threatening aggressive actions and by your driving requires protection of the community to figure in the sentence I impose.

30I turn now to your personal circumstances. You are 19 years of age and were born in February 1999. You come from Maori heritage. You were 19 at the time of your offending.

31Your biography is comprehensively set out in the psychological report of
Mr Guy Coffey. However I will note key aspects of it. You were the second child to parents who migrated from New Zealand. You were born in Melbourne. Your father was an alcoholic and had a turbulent relationship with your mother. Your early childhood was marked by your father’s violence towards your mother. They separated when you were two years of age. You had sporadic contact with your father through your childhood, although he eventually moved to Townsville.

32In primary school you were slow to obtain numeracy and literacy skills. By year six, you had difficulty following lessons and you were disruptive. I was told in submissions that the psychologist Carla Lechner said that you were already smoking marijuana by the sixth grade.

33By the time you started at Monterey Secondary College in year seven, your education was already years behind. In year eight you move to a special teaching unit but your engagement with schoolwork and attendance was sporadic. By year nine, it appears that you had stopped attending school altogether.

34Ms Lechner provided a report to the Children's Court when you were 15 years of age. By that time, you had been using a variety of drugs for years.
Ms Lechner considered that you suffered from ADHD and you were prescribed medications.

35Ms Lechner assess your cognitive functioning as borderline: that is, 96% of your cohort would perform better. Presciently, Ms Lechner reported that you were socially and cognitively immature. These were undermined by your substance abuse.

36At aged 15 shortly after this, you moved to Townsville with your father. Although you were able to remain out of trouble for a considerable period of time, and you worked gainfully as a steel fixer, you continued to use drugs and you drank heavily.

37Your father died in 2017. At that stage, you had little education, you were grieving for your father, your ADHD was largely untreated, you had been abusing alcohol and drugs for years, your cognitive functioning had been described as borderline and you re-entered your old drug-using peer group in Melbourne.

38You returned to live with your mother Candice Webber and she helped you to get work, but you held it for only for six weeks before you fell back into the grip of using methylamphetamines.

39In April 2018, only a few weeks after you turned 19, these offences occurred. You have been held in adult custody ever since your arrest.

40I have the psychological reports of Guy Coffey dated 23 January 2019 and
28 January 2019. Mr Coffey agrees with Ms Lechner in her assessment of your cognitive functioning. Overall Mr Coffey considers you to be immature, impressionable and eager to be accepted within the prison system. He considers your time in prison will be more burdensome given your young age and cognitive functioning. Essentially, he sees you as caught within an inescapable conflict between the prison authorities and the prisoners by whom you wish to be accepted and seen as an equal. Nevertheless, Mr Coffey considers that you have the beginnings or spark of what may be considered remorse, or at least insight into the need to change your offending behaviour.

41It is apparent that even at your young age, your time in gaol has been one of considerable conflict and difficulty. You have been held in a management unit for much of your time and you have only been allowed very little time out of your cell.

42Your counsel Mr Moody submitted on your behalf that special reasons exist why I should not impose the mandatory minimum provided by section 10AD of the Sentencing Act. Using the words of the provision, Mr Moody submitted that there are substantial and compelling circumstances which justify avoiding the imposition of the minimum non-parole period provided.

43Essentially the special and compelling reasons are submitted to be cumulative in their impact in relation to the circumstances outlined to me. Mr Moody accepts that this is a heavy burden and not just a run-of-the-mill list of matters. The factors put to be in combination are as follows:

·  First, at 19 years of age, you are recognised by the courts and Parliament as a young offender. In the ordinary course of events, your rehabilitation must be given greater emphasis;

·  Second, you were documented by Mr Coffey as immature and impressionable;

·  Third, you have a diminished ability to cope with adulthood due to your low cognitive functioning;

·  Fourth, the early plea of guilty is indicative of signs of remorse;

·  Fifth, the burden of imprisonment weighs on you because of your psychological make up;

·  Sixth, the treatment of your co-offenders, Morell and Colquhoun in respect to the carjacking;

·  Seventh, it was submitted the nature of your offending was largely unsophisticated and unplanned and therefore not  at the highest end of seriousness; and

·  Finally, at the time of this offending you were heavily affected by drugs.

44Mr Moody further submitted that you have reasonable prospects for rehabilitation. Notwithstanding, you have been a prolific offender, you still have considerable support from your mother and a history of full-time work for a few years when you are living with your father. Moreover, your ADHD has been largely untreated. With treatment, and given the fact that you are young man, Mr Moody submits you still have prospects for your rehabilitation.

45In the circumstances, Mr Moody submits that the accumulation of these factors is not run-of-the-mill and the consequence is, you should avoid the mandatory minimum period is being imposed.

46Ms Malobabic on behalf of the Crown submitted that special reasons have not and cannot be made out in this case. The Crown provided a written outline of submissions as to this.  Essentially, the Crown submits, by reference to
Mr Coffey’s report, that your neurodevelopmental disorders on their own did not cause you to have a substantially diminished ability to regulate your behaviour, and you did not suffer from impaired mental functioning per se.

47It is apparent from a close reading of the submissions and taking into account the oral submissions made on behalf of the Crown that there was some mixing of factors in relation to other offences.

48I turn to them now and point out that Ms Malobabic essentially points to the following matters:

·  First, the objective seriousness of this offending both by reference to the maximum penalties and the circumstances in which each of the offences occurred;

·  Second, the offences on four occasions involved the use of weapons;

·  Third, the effect on the victims, especially the Hungry Jack's victim;

·  Fourth, in the first armed robbery the victim was injured and the screen was smashed. The second armed robbery, the Hungry Jack's armed robbery was a very serious matter indeed;

·  Fifth, you were on bail at the time of the offending;

·  Sixth, you were placed on a CCO on 18 January 2018 after you had spent 157 days in presentence detention. The CCO addressed treatment, rehabilitation, mental health and offender behaviour. You initially made some progress but then there was non-compliance; and

·  Finally, there was no parity issue because your co-offenders were dealt with and will be dealt with in the Magistrates' Court for a different, lesser offence.

49Ms Malobabic submitted that whilst gaol will be more onerous for you, the gaol management issue has been largely brought about by your own behaviour. Further, the Crown points out that you have done some good whilst in prison. You have taken Maori language classes, you have undertaken music, you have undertaken adult basic education, you have completed a “manage your future” and an IT course. You work out in the prison gym and you have received additional support. Nevertheless, at your last case management review, you were assessed as being a high risk on the young adult risk assessment tool.

50Whilst I accept many of the submissions made on your behalf by your counsel in respect to why special reasons exist to avoid the mandatory minimum period of imprisonment for the carjacking offences, I do not accept that there is a parity point in respect your co-offenders. Both co-offenders were or are to be dealt with on the basis that they were not complicit in your use of a weapon to secure the vehicles. The offence of carjacking and aggravated carjacking are separated by the fact that you were armed and used a weapon. The consequences of that have been spelt out in these reasons. There is simply no basis upon which to compare the disposition to be imposed on you with that faced by Morell and Colquhoun.

51After giving the matter close consideration, I have decided in the end that special reasons do exist in this instance. That is I consider that there are substantial and compelling circumstances that justify not imposing the minimum non-parole period provided by Parliament for the two offences of aggravated carjacking that you face. I have done so taking into account the cumulative effect of the matters raised on your behalf. On any reading of those circumstances, they are not, cumulatively, run-of-the-mill. To be clear, I consider the key factors to be;

·  First, your very young age and the fact that the courts recognise that the rehabilitation of young persons is to be given greater emphasis. Whilst the cases also consider that your prospects for rehabilitation can take a backseat in relation to the seriousness of crimes you have committed, I consider that rehabilitation remains overall a factor to which I must have regard given your very young age at this stage;

·  Second, although your cognitive functioning did not causally contribute to your offending such as to provide with a cause for direct mitigation, I consider your very low functioning and the fact that your ADHD remains largely untreated as a substantial factor in mitigation;

·  Thirdly, when the above is combined with the burden of imprisonment, I consider together that these are important factors. Whilst your behaviour in prison has been poor, these must to some extent be seen in light of the opinion of Mr Coffey. I do not consider that your poor behaviour can be completely attributed to your cognitive functioning, but it is clear also that your immaturity because of your age has a role to play; and

·  Finally I consider that you are facing a very significant sentence of imprisonment overall for your offending. It will be a difficult enough for me to achieve an overall totality without imposing a sentence that is crushing given your intellectual functioning and your status as a young person.

52In the circumstances, the sentence that I am about to impose requires you to serve a non-parole period before you are eligible for parole. Mr Hawkins, I am going to be absolutely blunt with you. It is going to be hard for you to get parole unless you start working on it now and working towards a release and a change of behaviour when you get out. If you do then the sentence I am about to impose will give you something of a break. I am giving a bit more of a gap between the non-parole period and the parole period than I would if you were an older offender. But you have got to make the most of the opportunity I am going to provide you with and work with the prison authorities, otherwise you will end up serving the whole lot.

53On indictment J11097304, the count of aggravated carjacking, you are convicted and sentenced to a period of imprisonment of three years and four months. On indictment J11134789, on the charge of aggravated carjacking, that is the one on 25 April 2018, you are convicted and sentenced to a period of imprisonment of three years and three months. On the first charge of armed robbery, that is Charge 2 on indictment J11134789, you are convicted and sentenced to a period of imprisonment of three years and three months. On the next charge of armed robbery, which is Charge 7 on the indictment, you are convicted and sentenced to a period of imprisonment of three years and six months. That is the base sentence.

54On Charge 3 on the indictment, the charge of recklessly causing injury to Mr Thotra, you are convicted and sentenced to two months' imprisonment. On the charge of criminal damage to the cash register, which is Charge 4, you are convicted and sentenced to a period of one month's imprisonment. On Charge 5, which is the charge of theft of petrol, you are convicted and sentenced to one month's imprisonment. On Charge 6, which is the next charge of theft, of the Wild Turkey, you are convicted and sentenced to one month's imprisonment. On Charge 8, the charge of reckless conduct, on 27 April 2018, you are convicted and sentenced to six months' imprisonment. On the charge of wilful damage, that is the breaking of Mr Thotra's glasses, you are convicted and sentenced to one month's imprisonment. On the charge of evade police, you are convicted and sentenced to two months' imprisonment. On the charge of committing an indictable offence on bail you are convicted and sentenced to two months' imprisonment. All licences held by you for driving are disqualified and you are prohibited from driving for a period of two years.  

55Now, the periods of cumulation are as follows. The base sentence is Charge 7, the armed robbery at Hungry Jack's. The base sentence is three years and six months. On Charge 1 on indictment J11097304, that is the carjacking, I order that one year of that sentence be served cumulatively on the base sentence and all other sentences. On Charge 1, on indictment J11134789, I order that one year of that sentence be served cumulatively. On the charge of armed robbery which is Charge 2 on that indictment, J11134789, I order that one year of that sentence be served cumulatively. On the charge of reckless conduct, Charge 8 on indictment J11134789, I order that one month of that sentence be served cumulatively on the base sentence and all other sentences.

56That means that you face a total effective sentence of six years and seven months' imprisonment. I order that you serve a minimum period of three years and ten months before you are eligible for parole. But for your plea of guilty, all things being equal, I would have sentenced you on all of these offences to a period of nine years with six years to serve.

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