Director of Public Prosecutions v Hayward

[2018] VCC 2108

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 18-01616

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY HAYWARD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:	13 December 2018
DATE OF SENTENCE:	13 December 2018
CASE MAY BE CITED AS:	DPP v Hayward
MEDIUM NEUTRAL CITATION:	[2018] VCC 2108

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D.Cordy	Office of Public Prosecutions
For the Accused	Mr. C. Morgan	Sullivan & Braham

HIS HONOUR:

1Ricky Hayward, you have pleaded guilty to one charge of causing injury intentionally and one charge of armed robbery.  Those crimes carry maximum penalties of 10 years and 25 years respectively. 

2You are 23 years of age and were 22 at the time of the offending.  You are clearly therefore still a young person and I certainly have not extinguished all hope in terms of rehabilitation.

3You pleaded guilty at the earliest reasonable opportunity and must get the benefit of the that.  It is difficult to ascertain how you feel insofar as remorse is concerned, but when one notes that you have an IQ of 53, I will not be too harsh on that.  You obviously must get the utilitarian benefit of that plea of guilty.

4You do have prior convictions of real significance. You have undergone gaol sentences before and you have been sentenced to a significant period of Youth Justice before.  The offending has to be reviewed in that light, of a young person with a troubled background and a troubling criminal history.  I will not go into the prior convictions in detail.  They go all the way back to the Children's Court some years ago, for violence and dishonesty and the like. 

5The circumstances of the offending are that you and another unnamed person but obviously you know who it is, contacted the Bairnsdale Taxis by phone in around 21 May 2017.  A number of phone calls were made asking the taxi driver to go to an address in East Bairnsdale, in fact, something like six calls were made in the order of a quarter of an hour.

6The victim, Mr Green, was performing the night shift taxi service.  He attended at Cameron Crescent where he had been asked to go and went to the number that had been described, that being 45 Cameron Crescent, East Bairnsdale. 

7

At approximately 12.50 am he entered the crescent and from Lucknow Street he observed two males standing outside No.32 and parked the taxi opposite.  He saw those two males wearing hooded jumpers which were concealing their faces.  One of them, of course, was you.  It is put that this was not

pre-meditated, but it is hard to come to that view where there has been a number of phone calls luring a man simply doing his job, to a particular address.  There is clearly attempt at disguise and you were armed with a hammer. 

8In any event, the taxi pulled up and the unnamed co-offender opened the passenger side of the taxi and spoke to the driver.  You walked around the rear of the vehicle and approached the driver's door.  You opened it and struck him with a claw hammer.  It was a standard hammer with a rubber handle and a steel shaft and you were holding it in your right hand.  You struck him multiple times to his right arm.  He attempted to block the strikes with his forearm while being restrained by his seat belt.  That gives rise to the charge of assault.

9While he was restrained, your co-accused, as he should be, entered through the passenger side door into the cabin area and punched the victim to the head while you were attacking with the hammer.  Mr Green was able to remove his seat belt and got out of the taxi.  He was confronted by you and you again struck him with the hammer to his left shoulder and ear.  I point out at this stage I have seen the photographs taken of him at hospital. 

10

He got a hold of the hammer by the sharp part and took it off you.  You and your co-offender stood away from him while he held the hammer towards you.  He got into his taxi with the hammer and drove away.  While driving away, the two of you ran to the rear of the taxi and struck it several times, kicking and punching it as it drove away.  He saw the two of you walk through a vacant block, went back and got his glasses which he realised he had left there.  That gives rise to the charge of armed robbery.  The sum total achieved by this exercise was

$50 in coins.

11In any event, he later went to the Bairnsdale Police Station to report it, and there was then a series of forensic investigations which were made, which I do not need to go into.  As I say, as they indicate, I have already seen the photographs taken of Mr Green's injuries and take them into account. 

12In any event, the circumstances were that forensic evidence in terms of a shoe print and DNA pointed towards you and you were ultimately arrested and remanded in May of this year. 

13You did a no-comment record of interview which is clearly your right.  You have now been on remand for 196 days in adult custody.  You have previously spent, by my calculations, something in the order of a year in adult custody with regard to other matters.  I have been given the sentencing remarks of Judge Montgomery who sentenced you back in December of 2014 and those figures seem to be accurate.

14There is no Victim Impact Statement before me, but the offending has to be regarded as serious and it is important that it be understood just how serious it is.  It calls for the application of general and specific deterrence in the normal course of events as well as denunciation, punishment and community protection, although with an IQ of 53 and a very deprived background, the tension between general and specific deterrence and public protection is often a very difficult one.

15This was a situation where two of you in the early hours of the morning lured, and I use that word advisedly, a man who was just simply doing his job to a place where in darkness he could be attacked and robbed of what could only have been a relatively pathetic amount of money. 

16As I have already indicated, it clearly had to have been given some thought before it occurred, because of the acquiring of disguises and obviously the weapon.  To attack a man, punching him to the head area with a hammer, is inviting a murder charge, Mr Hayward, and one day that may happen, but I have to sentence you for what you have done; a very nasty assault and in the context of a "gutless" - if I can put it what way - armed robbery.

17I then turn to matters personal to you, and this is where the real difficulties arise and as is well known to counsel I have a lot of experience in this particular area.

18You are a young aboriginal man.  You were brought up in Bairnsdale.  I have a report from Dr Ball who has discussed your prior history with you and it is so typical, it can just be described in such short compass. 

19He says that you - and I do not like doing this, but there is no choice - impressed him as immature, low-functioning with a limited capacity to exercise good judgment.  He said that you possess little insight - this is back in 2014 - into your alleged offending.  You are generally lacking insight into your own psychological functioning. 

20He then went on to say that you were one of three siblings with two older sisters, described a dysfunctional and chaotic family of origin, characterised by alcohol and violence.  That appears to have been turned around.  He then said, rather sadly, that you left home at the age of 13 to go and live with your grandmother.  You said that you felt ashamed at school because of your learning difficulties and you were always tired because of what was happening at home.  He said the only time you felt safe was at grandma's. 

21You were given additional assistance with your studies but nevertheless had problems throughout.  At 13, you started using alcohol and you have abused alcohol ever since.  You started using illicit substances some two or three years prior to talking to Mr Ball which puts it around about the 2010/2011 mark, and those problems have continued. 

22You describe to him having a tendency to pathological gambling and what has occurred is that by the age of 18 or 19 you have been in custody for an extended period of time.  You have only been out, as I understand it, from your parole period before this offending occurred. 

23What does give me confidence in that scenario is that you were able to get through youth parole.  Whether they pulled you back and let you out again a couple of times I have no idea, but you were able to achieve that and it gives me some degree of hope that in an adult environment you will be able to (1) Achieve parole because you were not breached, and (2) To make proper use of that upon your ultimate release.

24You have very good family and extended family support as well as community, and the family and community have just got to understand that with your difficulties, you are going to need a lot of help off them, because you are not going to spend the rest of your life in gaol for either more serious offending than what has occurred here.

25With an IQ of 53 and the background as described, and I am not going to go into all the detail of it, clearly the principles involved in Muldrock and Bugmy apply to your circumstances.  I understand totally that young men do not get over these problems in five minutes, but you are going to have to start to do something about it pretty soon. 

26The prospects of your rehabilitation, I am hopeful, but not confident.  The risk of you re-offending if you are released and ultimately return to alcohol and drugs, I think is very high indeed.

27After a very helpful plea, if I may say so, from your counsel it was discussed and I have determined that adult gaol has to be of significant proportions.  It is clear that, in some aspects, that Youth Justice was probably not the correct disposition for you previously, you may have done better with adult mentors, other Koori men who are in prison who may be able to have assisted you, but that is the scenario that is going to have to exist now.

28The minimum term I am going to impose is significantly less than what might otherwise have been the case, and in that regard, I simply look at what was said in the case of DPP v Toumngeun as Neave JA said as recognised in the DPP v Leach,

29"It is particularly important that this court should not devalue or deny the right or a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped, and after all, may be a decision which rebounds very much to the benefit of the community." 

30And as the President said in DPP v Tokava:

31"A sentencing Judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term, the community's interest will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual it is sought to rehabilitate, an important interest in itself is a viral community interest in maximising the prospect of rehabilitation of an individual who's been convicted of a serious crime."

32In this particular situation, I think those comments are pertinent.  There is no way known you are not getting a significant, active custodial sentence, but the minimum term is one which hopefully is able to achieve the purposes that are described in that decision. 

33You will have to earn that parole and you must know that you have got to ask for it and got to apply for it, and do not just sit there.  I think that you are a risk of becoming institutionalised.  Don't do it brother, all right?  Don't do it. 

34However, as I have said all those matters, it has still got to be a proper sentence and one that reflects the seriousness of what occurred and the consequences to the man involved. 

35Accordingly, on the charge of intentionally cause injury, 12 months;

36On the charge of armed robbery, three years and six months;

37I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, which gives an effective head sentence of four years.  In these circumstances, for the reasons I hope I have outlined, I am going to give you a minimum term of two years before becoming eligible for parole and I direct that 196 days be reckoned as having been served under this sentence. 

38Just so you and family realise the benefit of your having pleaded guilty to this matter, had you not pleaded guilty and fought it out and been convicted, I would have given six with a four. 

39Any other orders?  All right, yes.  Court is adjourned.

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