Director of Public Prosecutions v Hazell
[2020] VCC 84
•14 February 2020
guj
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
CR-19-00437 & 00438
Indictment No: J13201971 and J13196518
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAYLER HAZELL |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2020 | |
DATE OF SENTENCE: | 14 February 2020 | |
CASE MAY BE CITED AS: | DPP v HAZELL | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 84 | |
REASONS FOR SENTENCE
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Subject:Indictment No. J 13201971: aggravated burglary, theft x 2, armed robbery, threat to kill, RCI
Indictment No. J13196518: armed robbery, robbery x 3
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Sheridan-Smith (For Plea) Ms M. Dunbar (For Sentence) | Office of Public Prosecutions |
| For the Accused | Ms S. Poulter | Greg Thomas |
HIS HONOUR:
Tayler Hazell, you have pleaded guilty to 10 charges laid on two separate indictments.
On indictment J13201971, there are 6 charges arising from a single day, being one charge of aggravated burglary, two thefts, an armed robbery, threat to kill and one charge of recklessly causing injury.
On the other indictment (Ind: J13196518), there is a single armed robbery and 3 robberies all occurring two days later.
The maximum penalties are correctly set out in part in the opening which was marked as Exhibit A. Those maximums pertain though to the second indictment. As to the first indictment, aggravated burglary is punishable by a 25 year maximum, so too the armed robbery. Theft and threat to kill have a 10 year maximum. Recklessly causing injury has a 5 year maximum term of imprisonment.
You have a relevant criminal history.
This matter was opened to me on Wednesday of this week by Ms Sheridan-Smith who then appeared on behalf of the Director of Public Prosecutions of this State. That written opening, dated 5 February 2020 was marked as Exhibit A and your counsel told me that it was an agreed statement of facts. That was after a few amendments were made. The transcript will reflect those amendments. They were not sizeable matters frankly. Your name was removed from paragraph 27. Likewise it was removed from line 3 and 4 of paragraph 34 with the Crown saying they were unable really to say specifically who said what was mentioned there. The duration was said to perhaps be 25 minutes (see paragraph 37) though Mr Bell’s assessment of the duration of 45 minutes was left in the document and there was removal of the words ‘visible’ and ‘marks’ in paragraph 38 and reference to ‘bite marks’ in paragraph 41. Paragraph 86 was removed altogether.
The agreed summary is a lengthy document. I have no intention of going into all the details of the agreed facts in this case. I will not stray beyond those agreed facts.
This was a smorgasbord of serious offending over 2 separate days in September 2017. Very briefly stated, and that is all it is, a brief statement, on the evening of
4 September 2017 you in company with two others attended at a caravan park and entered Mr Bell’s unit as trespassers intending to assault. One of the group had a Taser. What then occurred within was extremely nasty and made more extraordinary by the fact that you had no connection at all to the very minor disagreement which existed between one of your co-accused Mr Lucas and the resident Mr Bell. It was incredible that it had even prompted Lucas to attend and enter given that it was a very minor matter relating to Mr Bell no longer being in a position to give Mr Lucas a lift to their shared workplace. So what? It had nothing to do with you at all.
Mr Bell had unlocked the sliding security door to speak to Lucas as he recognised him and you and the female were then not in view. Lucas forced open the door at which time he and the other two intruders, you and the woman, entered. Regrettably once in that unit, you took very much a lead role and that is accepted by your counsel. As I said you were a complete stranger to your victim. You produced a Taser and uttered the first of a number of threats to kill which are rolled up into that single charge. See paragraph 25. You and Lucas uttered a number of later threats rolled into this charge though it is accepted that there is uncertainty as to who said all of those things. You were acting jointly. However there can be no doubt at all that you said “I know where you live now, I have your car paperwork, I will come back with a gun and shoot you”. You had after all been the person who located the paperwork and of course Lucas already knew where this man lived. You did not until this night. So, of course I am satisfied beyond reasonable doubt that you uttered those words.
A very nasty armed robbery took place. There was an ongoing and sustained physical attack which included a number of totally unprovoked blows to the head. The assault continued when your victim said he was not going to drive you anywhere and that he had no drugs and again when he refused to sign over his car to you. That prompted you to punch him to the head and to bite him on the nose and the ear. At one point you were saying to him, “do you know who I am?” You ultimately left as a group with his car and the other items particularised within the armed robbery charge. Charge 6 relates to a later petrol drive-away. Charge 1 relates to an earlier brazen theft from a female attendant at a drive in bottle-shop. See paragraphs 2-9.
The attendance at Bell’s unit was for a sizeable enough period even acting as I do on that lower time estimate and for whatever reason you were acting in an extreme fashion. Happily the physical injuries were none too severe. They are described in the opening at paragraph 38. Of course I am dealing with recklessly causing injury not serious injury.
Swabs were taken from his nose. You were a contributor.
You left the State and you were arrested up in New South Wales on the 10 September committing offences up there for which you were later to be imprisoned. I will come back to that time in custody later.
Prior to heading interstate but after the unpleasant events of the 4 September which I have just described, you had on 6 September committed the 4 offences on the other indictment. The armed robbery committed upon the lone 54 year old female milk bar attendant was a nasty soft target armed robbery indeed, where you brandished the knife above your head in a threatening manner and moved your hand in a stabbing motion as you told her to shut up. You leapt over the counter. Your victim was terrified and went towards the ground holding up her hands. At one point she stood up and again you raised the knife above her head shouting at her. You were in very close proximity to her, right next to her. The still photographs spell out your presentation. They are attached to the depositions and I referred to those in the course of discussion. But so too does the CCTV footage, which has been marked as Exhibit C. It was scary stuff. Quite terrifying. That was at 11.45 am on that day. A little over an hour later you committed the first of three brazen robberies at Liquorland outlets where you basically took alcohol and said you were doing so and that you had a knife and that essentially that the attendant could do nothing. At one point on that first event you also apologised. You fled with the two bottles of alcohol. Very brazen offending. The next was at 7pm and followed a similar pattern and then at 7.30pm we have the final offence, the same pattern yet again. Now, a knife was not produced on anyr of these occasions but plainly you were saying that you had one and would use it to stab the attendant if required but of course you fall to be sentenced for robbery not armed robbery in relation to these three offences (Charges 2-4). At no stage was any weapon produced. Nor is it even clear that you had one but you certainly said that you did and you said that to engender fear and to deter any intervention and it worked on both counts.
Anyway I sentence in accordance with that full summary placed before me. Though of course the offence seriousness varies, it comprises some serious offending for which there really can be only one response as your counsel makes clear. Prison and of a dimension requiring the fixing of a non-parole period.
When ultimately spoken to up in New South Wales on 13 September 2017, you refused to be interviewed which of course was your right. You were extradited down to Victorian in late 2018 once you had served out the New South Wales sentence. That sentence was for offences occurring on the 10 September 2017 together with a couple of older 2016 less serious offences. You received two sentences and I was told of the dates and the details. New South Wales prior histories are always a bit hard to unravel but whether it was an 18 month term with a 9 month minimum or 12 month minimum or somehow both is not important to me.
What is important is that you have been in custody continuously since your arrest on 10 September 2017 in New South Wales, though I have only 431 days of strict pre-sentence detention to declare. I will have regard to the other period by way of application of the principle of totality. There are a number of pending matters in this State including some offences said to have arisen when you were in custody back in 2017. Now, the two Victorian sets of charges are listed later this month and it has not yet been decided what you will do by way of plea. So I put those out of my mind. They are irrelevant to my task. There was also some talk of a warrant having been issued out of the ACT for alleged serious offending said to have occurred on
8 September 2017. That is aggravated robbery with a weapon. Again though, I can have no regard to that matter for the same reason. It is but an allegation. I have no idea how that is going to end up.
In Mitigation
Ms Poulter had prepared an excellent written outline marked as Exhibit 1. She conducted a very thorough plea on your behalf and took me to your background in great detail. She really could not have said more on your behalf. I want to make that very plain. She was well researched and had a very detailed understanding of your personal circumstances which is as it should be but often it is not the position, I regret to say. She has done everything she could do. She made submissions as to the circumstances of your offending and the sentencing purposes at play here. She conceded the relevance of your prior criminal history and she placed before me a report from Ms Cidoni together with an article dealing with a previous serious assault committed upon you. She raised the risk of your becoming institutionalised.
She relied on a number of matters in mitigation. They included:
· Your guilty plea and the early stage of that plea;
· The presence of some remorse;
· Your background of disadvantage;
· Your relative youth;
· Your personal circumstances including a low level of functioning and some past unfortunate events in your life over and above the disadvantaged background I have spoken of;
· An increased custodial burden based on the 5th limb of Verdins;
· Totality of sentence; and
· She took me to your past relatively good employment record and then suggested that there was some guarded prospects of rehabilitation here, that you had some prospects.
She took me also to the sentence imposed on the young female co-accused, that is Ms Young and those sentencing remarks were marked as Exhibit B on the plea and she made some very feint submissions as to parity but conceded there were very many differences in role and background running in Ms Young's favour and requiring disparity of sentence. Your counsel conceded the inevitability of a prison term and one requiring the fixing of a non-parole period and she urged the Court not to impose a crushing outcome here and to moderate the inevitable cumulation orders that would be made.
Prosecution
There was then little work for the prosecutor given the sensible manner in which the plea had been conducted. However, Ms Sheridan-Smith who appeared on behalf of the Director of Public Prosecutions, submitted that this was serious offending and by a man with some relevant past criminal history. Your rehabilitative prospects she argued could only be viewed as guarded. She submitted that specific deterrence, community protection and general deterrence were of real significance in this case. She made submissions as to the offence seriousness and how they should be characterised. The prosecution did not accept that the robberies fell at a very low level or even a low level. The prosecution did though accept that you had a disadvantaged background but challenged any engagement of the 5th limb of the case of Verdins that you heard discussed. They submitted that the only appropriate disposition here was a term of imprisonment with a non-parole period. Well, as I have said already, so much was readily conceded by your own counsel, correctly so.
Victim impact
There are no victim impact statements here. I do not need them. Many statements have been made by the courts over the years as to the way that aggravated burglary can impact and does impact upon the feelings of safety and well-being of the occupant or homeowner. There was then serious offending occurring within the unit after the entry. The armed robbery of the milk bar left your victim distraught. It was a very frightening event. That is not to downplay the impact of the brazen robberies that were committed by you. Even the theft charge, Charge 1 on indictment J13201971 caused your female victim to feel shaken up and upset. She was understandably worried as to your presence and concerned about approaching you. That is charged as a theft but that is the way she felt no doubt because of your open stance in declaring what you were doing.
Mention is made in the summary of some of the immediate impacts upon some of the victims. I take into account the impact of your crimes as I am required to. I cannot speculate about any long term impact in the absence of victim impact materials placed before me but undoubtedly your crimes have had an impact, you know that, and they would not be easily forgotten by any of those unfortunate enough to have come face to face with you.
Background
I will turn only very briefly to your background. I am not going to set it all out again. It is not in dispute. It is set out in some detail in Ms Cidoni’s report and was expanded upon by Ms Poulter both in her oral and written submissions. You were 24 at the time of these various crimes, born 6 May 1993. It follows then that you are approaching 27 years of age now. You grew up predominantly in country New South Wales and had little by way of useful guidance or good role models. No father to speak of and a mother who had very sizeable issues with alcohol. Child protective services were involved and you were left very much to your own devices by your mother. Foster care, instability and homelessness were your lot. You witnessed violence against your mother from your mother’s new partner, and you were yourself the victim of sexual abuse at the hands of a foster carer. You were expelled from both primary school and then from high school in year 8. One positive thing is that you seemed to have had no difficulty finding and holding on to jobs at least in the early stages. You have worked in a variety of pretty hard occupations, in abattoirs, at a recycling plant, as an apprentice chef, farmhand and even as a removalist. I was told that your last job was at McDonald’s and that was some years ago now when you were about 18. You were in fact stabbed when you were 18. There is an article spelling out how serious that crime was.
I accept that there has been a background of significant disadvantage in your life. No-one in their right mind would choose such a background. You did not. It was thrust upon you. It seems to me that you were dealt a very poor hand in life. I take it into account in the manner contemplated by your counsel in paragraph 12 of her submissions. That background which I see no need to fully restate continues to operate on you and is given full weight by me. The effects of such disadvantage, they do not diminish over time but unsurprisingly they do have profound and lasting consequences. See the case of Marrah [2014] VSCA 119, also the case of Bugmy [2013] HCA 37. So, this all leads to some reduction in your culpability.
Plainly as can be seen from Ms Cidoni’s report you are not functioning at a high level at all. I take that as well as your post-traumatic stress disorder and borderline personality disorder and depression into account as far as I am able to. Though the written submissions did not mention any Verdins' principles being enlivened here, I enquired just to be sure. In fact your counsel was relying upon some modest application of the 5th limb from that case that you heard discussed; that is an increased custodial burden arising from the conditions spoken of in the report of Ms Cidoni. The prosecution challenged the evidentiary basis for that submission and I can well understand why. Ms Cidoni really does not really explain how those “conditions” will impact upon you in custody and increase your burden. You have a number of “conditions” including a low level of functioning falling short of an intellectual disability. You seemingly also have post-traumatic stress disorder as well as a borderline personality disorder and depression. The personality disorder can be taken into account in a general O’Neill fashion but not in a Verdins manner as far as I am concerned. However, I do not want to get bogged down in all of this. You obviously have poor problem solving skills courtesy of your low level of functioning. You have the post-traumatic stress disorder. I am prepared to find some very modest increase in your custodial burden in a Verdins fashion. Ms Poulter was explicit though in stating that there was no reliance on any of the other five Verdins principles in this case. There is then no Verdins basis to moderate any of the other sentencing purposes including general and specific deterrence and no Verdins reduction in your culpability. As I have said though, I have already indicated there is some Bugmy type reduction that I do factor in here, in your favour.
Unfortunately, part of your background is a relatively lengthy criminal history which your counsel obviously concedes to be of relevance to my task. It serves no useful purpose, my conducting in these reasons, an audit of that past criminal history. You have served a number of prison sentences in the past. You have been dealt with in the past for some serious enough offending including breaking and entering, criminal damage type offences and a number of aggravated burglaries as well. Also other dishonesty offences, a common assault, many breaches of intervention or apprehended violence orders as well as a range of driving offences, some of them obviously quite serious. I note though that those aggravated burglaries were dealt with many years ago in the Children’s Court. You have been given opportunities by the courts and you really have not grasped them. There have been some gaps in offending, not large gaps, and your counsel suggested the main gap related to a period of stability in your life, for instance 2012-2014. There is a plain need for you to be deterred and past efforts have not succeeded so I will try again to deter you from offending into the future.
Now, Ms Poulter took some time developing the sort of life you were living in the lead up to the offending back in 2017. A pattern of breakdown in intimate relationships, lack of stability on that front and on the housing front and disconnection from your children. I am not going to set out all that she said. I have had regard to it. We had the death of your grandfather who had been one bright light in your early life, disconnection from your mother, a breakup with your girlfriend Amy in Gundagai, movement to Melbourne and establishing a relationship with Renae, your brother’s ex-girlfriend and then that relationship being strained by your endeavours to contact a former partner Jennifer in the hope of seeing your son to that woman. So, the setting was much instability, problematic housing issues and really little to live for. Drugs and alcohol intruded and that was the lead-in to this offending. That is, you did not really care about anyone including yourself and you felt a strong sense of hopelessness in your own life. That could be contrasted, it was said, with how you feel today. You have hopes for the future. You are having daily contact with Renae and you speak to her and to your son who has been born since you went into custody. I was told that you wish to resume those relationships and forge a relationship with your other two children who you have no contact with at the present. You wish not to be an absent father. You experienced that yourself in your early days. You want to find employment. You want to try to deal with some of the issues spoken of in Ms Cidoni’s report. You want to establish some roots in a community. You wish also to rid yourself of the, obviously unwise facial tattoos that you had and which set you apart from so many. You also know how much you have missed by virtue of your criminal conduct over the years. You have for instance not been present at the birth of any of your three children. So, you have been taking stock in the period that you have been in custody. I accept that. I will come back to discuss some of these matters when dealing with your prospects of rehabilitation. But you are more than just the person who committed these serious offences and that is always the position really for any offender.
Youth
Your counsel spoke of your relative youth. Well, you are relatively youthful but a very long way removed from being a silly teenager. You were an adult. You were 24 years of age and you were committing adult crimes and serious ones at that. You are now approaching 27. I am well aware of decisions such as Mills and Azzopardi and the way in which many of the sentencing purposes can yield on occasion to youth and the need to focus on rehabilitation. It is for good reason that high regard is paid by the law to youth and rehabilitation, often then with a lesser emphasis placed upon deterrence and punishment. But these principles are not applied in the same way in every case. They do not just apply automatically. They need to be sensibly adapted to one of your age and one with your criminal history committing the offences that you have committed. As I have said you are a very long way removed from being a teenage first offender. Still I do not lose sight of your age at the time of the offences. The Sentencing Advisory Council (SAC) in this state released a very lengthy paper late last year dealing with the complexities of sentencing young adult offenders. See the paper ‘Rethinking Sentencing for Young Adult Offenders’ (SAC, December 2019). It is an impressive work and touches upon the sentencing principles in this area and the reasons why the law has developed in this way.
I do not ignore your relative youth but it is only one matter amongst many that I must have regard to.
Guilty plea
You have pleaded guilty and I will treat it in the way suggested by your counsel, that is, the earliest plea for both indictments. I am not going to go to all the detail of the chronology set out in the opening. There is no need for me to do that. I must reward you for your early guilty plea. You have facilitated the course of justice and done so at that early stage. You have taken legal responsibility for your crimes and in your case, unlike your co-accused Lucas, witnesses have been spared the experience of coming to court to give evidence on your account. I take these various matters into account in your favour. There is a saving of time, cost and effort also by virtue of the stance that you have taken.
Remorse
I am prepared also to find that your guilty plea is indicative of some remorse. It is puzzling that one such as you who has obviously been so deeply affected by a serious crime committed upon you would then set about committing serious crimes upon others which you must know will have real impact upon those others. I note the quotes from you in the Canberra Times article filed on the plea. Quotes that were sourced from your victim impact statement. You said “the night I got stabbed was easily the worst night of my life. I will not forget it”.
Yet here you were on these two days inflicting serious criminal conduct with impact upon others, conduct that will not be forgotten.
However, you were obviously out of control back in September 2017 and you have had much time to think about your conduct and what you have put people through.
Ms Cidoni speaks of this as well.
I am prepared to find the existence of some remorse here. That can only be a good thing and I take it into account in your favour.
Rehabilitation
As to your prospects of rehabilitation, your counsel was arguing that you had some prospects. She could not put it any higher. She said I could only be guarded. Well, drugs have been massively problematic for you and so too alcohol. You have a criminal record and have not been deterred by past sentences imposed by Courts including prison sentences. You have committed these serious offences. You have had some success at least by way of employment in the past but the last job as I said is many years in the past now. You have done some courses in custody which is at least something. Your offences seem to have escalated which of course is a worry but I do accept that it was in a phase of your life which we are now far removed from. I mentioned earlier in these reasons your hopes for the future to set down some roots and to form meaningful relationships with your children and to address some of your issues. It seems to me that your prospects will hinge on dealing with some of your past issues. Your disadvantaged background, which I have taken into account, and its impacts, well it is not just going to evaporate. You need to deal with those things or at least endeavour to. Your prospects will also obviously depend upon your remaining drug free upon your ultimate release from custody and that has been a problem for you now for many years. If you do not remain drug free, you will have no realistic prospects of rehabilitation at all. None.
You will now spend a sizeable period in prison. You already have but there is a long way to go until you might be released. This will play some role in deterring you I am sure of that. You have been in custody for well over 2 years. That is the longest you have ever been in custody. You are not enjoying it at all as paragraphs 23-26 of the submissions makes clear. You have been subject to a management unit regime, no doubt brought upon you by your own conduct in the incident I was told about where you threw some hot water over someone. It is a pretty strict and oppressive regime which you could hardly have enjoyed since September of last year and I take it into account as far as I am able to but it cannot be given undue weight given the catalyst for that regime. As I say, your confinement will continue into the future. It seems though that after the incident giving rise to the current strict arrangements, your conduct has improved and there is really no reason for me to think that your lock down will continue unless of course your behaviour justifies it. My sentence will serve to deter you to a degree.
I am afraid I have to be realistic. It is not my job to be overly optimistic. I have got to act on the materials placed before and make judgments. There is no cause to be overly optimistic in your case. I can only be quite guarded. I am though pretty confident that you could have had no pleasure leading the sort of life that you had been leading prior to your arrest back in 2017 and that as you sit there today you would hope that you can make substantial changes to the way you are living. That is at least a start. I do accept then that you have some prospects into the future but that is as high as I can put it at this point.
Totality
I turn to the issue of totality of sentence here. You have been continuously in custody since 10 September 2017. It is a little over 2 years and five months. About half of that period related to the New South Wales sentence(s) imposed for the offences occurring on 10 September 2017 and earlier in 2016. You have been in custody in this State pursuant to the matters I am dealing with for a shorter period, being 431 days from the date of your extradition on 10 December 2018. So the strict pre-sentence detention declaration that I can make under s.18 of the Sentencing Act is 431 days. I do have regard though to the greater period in application of the principle of totality of sentence. The fact is though that I am dealing with some unmistakably serious offences, far more serious than those for which you received the New South Wales sentence(s). I must consider whether the effect of the sentences that I will soon pronounce is just and appropriate and commensurate with your overall criminality. I have engaged in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of a crushing term upon you. I will certainly strive to avoid imposing a crushing sentence but I am dealing with serious offences, many of them committed upon different victims. It must necessarily lead to a level of cumulation and it all adds up to a sizeable prison term. Of course I am worried about the prospect of you becoming institutionalised but I must pass appropriate sentences and allow for appropriate levels of cumulation. I will moderate the cumulation to recognise the fact that the offences occurred in a similar time frame, indeed in a single episode in the case of Mr Bell. However, I must give adequate weight to the individual crimes committed upon individual victims and in Mr Bell’s case, serious individual crimes committed upon him each which undoubtedly would have individually contributed to the overall impact upon him. It is of course entirely unimportant that I have these two indictments. I am dealing with one aggravated burglary, two armed robberies and three robberies together with the other charges I mentioned and I am dealing with multiple victims. It is inescapable that it is going to produce a sizable term of imprisonment.
General remarks
Your counsel conceded that this was serious offending. Of course she is right. I really see no need to meander through the case law though I will mention some observations of the Court of Appeal. Each armed robbery was undoubtedly nasty. Your counsel did not suggest they were low level offences and they were not. One followed the entry as a trespasser with an intent to assault, the other was committed upon a lone female soft target working in an exposed setting. I am not suggesting either was sophisticated. They were not. As to the aggravated burglary though, this was not some chance attendance. It was obviously a deliberate planned group attendance. Strength of numbers are not uncommon in this setting and you had no business being with Lucas. He had no business to hold any gripe against Bell and you had no business being there at all much less entering the unit as a trespasser with intention to assault but you chose to do that. It is a choice that you made and was obviously a very poor one.
Many aggravated burglaries do not lead on to other crimes. This one did. You then committed the serious armed robbery once entry was complete. It was a nasty threat to kill and an equally nasty recklessly causing injury with a sustained attack. This was not some momentary event. You were in the premises for over 20 minutes.
There has been much discussion in the Court of Appeal about the sentencing practices for the crime of aggravated burglary and the manner of assessing the seriousness of the given offence. In the case of Meyers, a number of considerations were set out by the Court of Appeal but of course they were not exhaustive.
They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
Well, here there was undoubtedly an aspect of confrontation. It is a confrontational aggravated burglary and the Court of Appeal has said much about the seriousness of that style of offence. You entered intending to assault. Your group had a weapon. You pushed past the occupant as a group. It was a premeditated attendance and entry at night though not in the wee hours. It was carried out in relation to residential premises. This was no minor or low level example of the crime of aggravated burglary. Far from it. It was a serious crime though well removed in my judgment from the most serious examples of confrontational aggravated burglary that come before the court. Charge 6 on that indictment is obviously the least serious offence before the court being a petrol drive-away. Charge 1 is a more serious theft. It is a pretty brazen one. The armed robbery on the other indictment committed upon Ms Sekulic is in my view a serious example indeed of a soft target armed robbery and though the 3 robberies are each far less serious, they are not minor examples of that offence by any stretch of the imagination. I do not accept that they are very low level examples. There was no actual force used that is true, but they were brazen crimes with a real risk of escalation. You took what you wanted and sought to prevent any intervention by staff by saying what you said. Well, these things can go pear shaped so easily. Happily here the staff did not intervene but it was a very fine distinction your counsel was seeking to make between this conduct, your conduct, and someone actually approaching a counter and making a demand in the same terms as the words you used to deter any interference. Anyway I do not judge them to fall at the lowest level but of course they are a mile from the most serious examples of robbery that come before the court. They were still serious crimes upon vulnerable victims. Shop attendants are soft targets and that is because they must have the ability to interact with customers and that comes at the cost of this style of interaction. A most unwelcome interaction.
Parity
I turn to the issue of parity of sentence. There is no great value for you in my looking at the sentence imposed upon your female co-offender. Your counsel mentioned the concept of parity but as swiftly then conceded that all things were not equal in terms of role or background and that the disparities greatly favoured your co-accused. Plainly that is right. Judge Wilmoth’s sentencing reasons disclose Ms Young’s role. She was charged with armed robbery, aggravated burglary, false imprisonment and theft. But her role was far more limited. In fact you gave her directions. She was 18 and had no relevant prior convictions with only a single non-conviction undertaking in the Children's Court. She had met you and Lucas, it would seem, on the day in question. You were 25, Lucas was also older than she. You have a far more significant criminal history. She was a female Aboriginal from a significantly disadvantaged background and was disconnected from her own culture. She had also made very sizeable and largely successful efforts at rehabilitation including a decent enough period of some months in Odyssey House. That had to be taken into account in an Akoka fashion as well as more generally. She had been drug free and Her Honour was impressed by her efforts. She was also pregnant and suffered from post-traumatic stress disorder and had been sexually abused herself and had engaged in a conversation with elders in the Koori Court in her case. All things are not equal in terms of background or role or offending. Not even close. You will understand that and will not be left with any justifiable sense of grievance by the disparity of sentence. I suspect you would understand without me telling you as I am now, why there must be very sizeable differences in outcome in her favour. All up Ms Young received a 14 month term of imprisonment made up of 12 month terms on each of the aggravated burglary and armed robbery charges with two months cumulation as between those two sentences and a community corrections order to take effect upon her release. The other sentences were modest and ran concurrently. That outcome says nothing at all about what must happen to you. It exerts no great pull upon me as there are so many disparities in her favour. However, I do not ignore that sentence imposed upon her.
Purposes
I have to consider a number of purposes of sentencing. They include your prospects of rehabilitation which I have said I can only be quite guarded about.
I am required to denounce your conduct. That is of course an important consideration.
I am required to impose a just and proportionate sentence in relation to your offending. You must be punished, you know that. Again, that is clearly an important sentencing purpose in this case.
I must also seek to deter you from offending in the future. Again, that is highly relevant here given your criminal history and the nature of these offences.
Community protection is also important here and it must be given real weight. You presented a danger to innocent members of the community. I must strive to protect the community from you in the future.
General deterrence is also an important purpose of sentencing in this case. By general deterrence I am referring to the need for this court to send a clear and loud message to other individuals in the community who might be minded to commit these sorts of serious and prevalent crimes. Those contemplating doing so must understand that this sort of conduct will be met with sizeable terms of imprisonment.
I must pay regard to the offence maximum as well as the impact of your given crime.
I must and I do pay regard to current sentencing practices though it is not a single controlling factor. It never has been.
I have considered the Sentencing Advisory Council’s Snapshot in relation to the offence of aggravated burglary, that is Snapshot number 211 of June 2018. Now, statistical material has inherent limitations, I make that plain, and the statistics say nothing as to the individual features of the offence or of the offender. The Snapshot and the more up to date SACStat data does however demonstrate how seriously the offence is often treated, with the most common principal sentence of imprisonment falling between three to less than four years. There is also a healthy band of offenders sentenced to between four and five years, as well as a healthy band sentenced to a lesser term, between two and three years.
I have looked also at the new Judicial College of Victoria sentencing manual dealing with an overview of aggravated burglary sentences together with some recent summaries. See 6.4. I have also considered the Sentencing Advisory Council snapshot No. 212 of 2018, relating to the offence of armed robbery. The most common sentence of imprisonment where imprisonment was selected for this offence, was between three years to less than four years. I have looked at the more recent SACStat data which tells a similar tale.
Again I have also considered the new Judicial College of Victoria Sentencing Manual which has an overview of sentences imposed for armed robbery. See 6.2. I have also looked at the coverage of robberies at 6.3. The Sentencing Snapshot for robbery is very much out of date but I have looked at the SACStat data which is more recent and which discloses the most common sentence falling between one and two years for the offence of robbery.
At the end of the day though, other cases are not sentencing precedents. There is no such thing as one correct sentence. What I have got to do is exercise my sentencing discretion in your case for your crimes. It is not an exercise driven by statistics or by what sentences other judges have imposed upon other offenders for different crimes.
Confinement is required here there is no question about that. Not just confinement but for a significant period and for well in excess of your existing pre-sentence detention and at such a level as to require me to fix a non-parole period. I am left with no choice here and that is all conceded.
Sentence
If you could please stand the, Mr Hazell and I want to make plain you are going to have difficulty following the structure of the sentences. So, just listen careful and I will explain what it all means towards the end because I am going to be passing individual sentences on one indictment for the various charges, then making orders as to the extent of cumulation. Then I have to deal with the other indictment and do the same thing. Then I will have to make orders as to the extent of cumulation between those two separate effective sentences. It is only then that you will understand the total effective sentence and then I will fix a non-parole period. So, bear with me as I work my way through these things. It will take a little bit of time and no doubt your counsel will come down and explain it to you all again once I have left the Bench and once you go downstairs
Indictment J13201971
So, I am dealing with the indictment that has got the six charges on it, the Bell indictment if you will. Of course the charges do not all pertain to him. That is indictment J13201971.
So, Charge 1 is the theft from the drive-in bottle shop. You are convicted and sentenced to 2 months' imprisonment.
Charge 2, is the aggravated burglary. You are convicted and sentenced to 3 ½ years' imprisonment. That will be the base sentence.
Charge 3, the armed robbery, you are convicted and sentenced to 3 years 3 months' imprisonment.
On Charge 4 recklessly causing injury, you are convicted and sentenced to 10 months' imprisonment.
On Charge 5, threat to kill you are convicted and sentenced to 8 months' imprisonment
On Charge 6, theft, you are convicted and sentenced to 2 days' imprisonment.
The base sentence is the 3 ½ years' imprisonment imposed on the aggravated burglary charge. Nine months of the sentence imposed on the armed robbery, Charge 3, three months of the sentence imposed on the recklessly causing injury charge, Charge 4 and two months of the sentence imposed on the threat to kill charge, Charge 5 are to be served cumulatively upon the base sentence and upon each other. The sentences on Charges 1 and 6 will be served concurrently with all other sentences.
Total effective sentence on this indictment J13201971
So, that produces therefore a total effective sentence on that indictment of 56 months or 4 years and 8 months' imprisonment.
Indictment J13196518
I move now then to the other indictment, that is the one with the armed robbery and the three robberies, J13196518.
On charge 1, the armed robbery, you are convicted and sentenced to 3 ½ years' imprisonment. That is the base sentence on that indictment.
On each of the remaining robbery charges, and there are three of those as you recall, in each instance, so for each individual offence, I convict and sentence you to 14 months' imprisonment on each. That is not an aggregate sentence, it is 14 months on each.
I direct then that 4 months of the sentence imposed on each of those robberies, so Charges 2, 3 and 4 is to be served cumulatively upon the base sentence and upon each other. I said it would be difficult to follow, it is. But this produces a total effective sentence on that indictment of 54 months or 4 ½ years' imprisonment.
Global TES as between both indictments
As between the two indictments then, I direct that 2 years of that 4 ½ year sentence imposed upon the second indictment is to be served cumulatively upon the 4 year 8 month term imposed on the earlier indictment. This produces a global total effective sentence as between the two indictments of 6 years and 8 months' imprisonment.
Non-Parole period
Now, I must fix a non-parole period. I am going to arm the Adult Parole Board with the ability to at least consider releasing you with a sizeable period on parole. I can make no assumptions at all about whether you will be released on parole or not. It has nothing to do with me. In fact, I cannot even consider that matter at all. It will be determined by the Adult Parole Board and will be really between you and them. I will though give them a copy of Ms Cidoni’s report and these my reasons and they will see something of my concerns as to the risk of institutionalisation in this case. In all the circumstances I am providing a pretty decent gap between your head sentence and your non-parole period.
I fix a period of 3 years and 10 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
Of course you have already served 431 days of the sentences by way of pre-sentence detention, you get credit for that and that declaration is entered into the records of the court.
Section 89 ss 4 Sentencing Act
In addition I make a license order pursuant to section 89(4) of the Sentencing Act in relation to the armed robbery on indictment J13201971 given that one of the objects taken was a car. All licences and permits are cancelled and you are disqualified from driving in this State for 6 months. I have considered whether by way of commencement, it is appropriate to link that licence order to an event in the future for instance your release either at lapse of sentence or upon parole should you be so released, so that the order has some tangible impact upon you. Ultimately I have chosen to run the disqualification from today’s date. Now, I recognise that will have no real effect upon you but it seems to me that having the ability to perhaps get a licence upon your ultimate release (whenever that may be) could well enhance your prospects of rehabilitation so I proceed in this way quite deliberately.
Section 6AAA
I have said that I have taken into account your guilty pleas and I have. If you had pleaded not guilty to these various charges and then been found guilty by a jury, I would have sent you to prison for a global total effective sentence term across both indictments of 10 years. In those circumstances I would have fixed a non-parole period of seven 7 and that declaration is to be entered into the records of the court.
Let me just see if there are any other matters. Just have a seat then for a second. I will see if I have dealt with everything I need to. Any other matters I need to deal with at all?
MS DUNBAR: Nothing further, Your Honour.
HIS HONOUR: There were no ancillary orders in this case?
MS DUNBAR: No.
HIS HONOUR: No. I have rattled off the various sentences and the extent of the cumulation by way of indictment and I have done that in each case and then I have made that order as to cumulation as between the two indictments. Is everyone across the details of that and the mathematics add up? There is no-one who is raising some issue in terms of the maths of it?
MS POULTER: No, Your Honour. The maths is good.
HIS HONOUR: All right, so, anyway, it is a global total effective sentence of six years and eight months and a non-parole period of three years and with credit for his PSD to be taken into account. You will go down and see your client downstairs, Ms Poulter?
MS POULTER: I will, Your Honour.
HIS HONOUR: Yes, all right, well, thank you for your efforts. So, your barrister will come down and see you downstairs, Mr Hazell. So, Mr Hazell can be removed, thank you.
OFFENDER: Thank you, Your Honour.
HIS HONOUR: Look, I will sign the formal orders in chambers in a moment. I will stand down and consider the reserve list. It will not involve either of you but I will stand down then for the moment, thank you.
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