Director of Public Prosecutions v Hepburn

[2015] VCC 352

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

AT SHEPPARTON
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON HEPBURN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	24 March 2015
CASE MAY BE CITED AS:	DPP v Hepburn
MEDIUM NEUTRAL CITATION:	[2015] VCC 352

REASONS FOR 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 S. Pillai	Victoria Legal Aid

HIS HONOUR:

1Simon Hepburn, from 15 August to 14 October 2014, you embarked on a spree of serious crime in the Benalla, Shepparton, Euroa and Nagambie areas.  You committed seven burglaries on commercial properties, stealing property valued at approximately $780,000.  When police came to your home at Nagambie on 14 October 2014, you led them to where a good deal of the property was still located.  You immediately admitted your crimes.  You have maintained that attitude, pleading guilty to 17 charges on an indictment, as well as seven driving offences connected to these burglaries.

2The prosecution's detailed summary of your offending was read in court and I will append it to these sentencing reasons.  In the briefest terms, your crimes commenced on 15 August 2014 when you broke into Day's Motor Cycle in Wallan.  You stole between $12,000 to $17,000 worth of motor cycle parts.  You broke into the building by cutting holes in the roof, a method you regularly employed thereafter.  The alarms were triggered but you were brazen and remained out of the premises or nearby as police and security came, checked things and then left.  You had remained, as I have said, and then went back into the premises, remaining there inside for many hours.

3The next offence was in the early hours of 24 August 2014 when you broke into the retail premises in Nagambie known as Houslers and stole $35,618 worth of property being chainsaws, assorted gardening and electrical tools and many other items.  Once you broke in and cut the wires to the security system, you left, waited until the police and security came and then left, then you went back in.  You said to the police that you sold items at the local pubs to gain money but other items from that burglary were recovered.

4Although I said that the crimes you committed were an in an eight week period from 15 August to 14 October, in fact, after you had committed these first two crimes, a month or so went by until your next crime, a burglary at the Shire Depot at Nagambie.  This was on 21 September 2014.  At this location you cut locks and loaded a council vehicle with a large array of heavy maintenance type equipment, chainsaws, generators, power tools, Gerry cans and diesel fuel, oxy-acetylene cutting tools, lights, cords and iPads.  The value was approximately $36,755 and the vehicle that you took was worth $20,000.  The vehicle was abandoned in Nagambie and the stolen item stored at a remote location.  You took the police to the remote location upon your arrest.

5On 25 September, you broke into the Heathcote Pharmacy, disabled the alarm and stole prescription and pain medications.  You caused significant damages to refrigerated items after you had cut the power.  You returned to the pharmacy on 26 September, this time coming in via the roof and again cutting the alarm wires.  You then, over several hours, stole a vast array of items from the shelves as well as a laptop computer.  The estimate of the value was $21,796.  You used an oxy-acetylene torch to try to break into two safes, causing significant damage.  Property was recovered from this burglary at your premises.

6The next offence was also a pharmacy, this time in Euroa.  You broke in via the roof and disabled the security systems.  You stole over $14,000 in goods including cold and flu and pain relief medication and a computer and cash.  Next, overnight between 9 and 10 October, you broke into the Sports Power store in Benalla and stole $17,500 worth of sports shoes, equipment and clothing.  Again at this place, you disabled the alarms. 

7Then overnight between 13 and 14 October 2014, you committed perhaps your most audacious crime.  You broke in through the roof of Purdy's Jewellery store in Shepparton, stealing 1,148 items of jeweller valued at $616,651.28.  This included jewellery on display for sale, layby and items brought to the store for repairs by ordinary folk who owned those items.  You brought with you your oxy torch but could not open the safe. 

8On your arrest at your house, police located an unregistered air rifle and a small quantity of methamphetamine.  Further enquiries by the police revealed that your licence had been suspended.  You admitted to the police driving to the various premises that you burgled, leading the police to charge you with seven driving offences, that is driving while your licence was suspended or driving while you were disqualified.

9Mr Hepburn, your burglaries were well planned and executed with sophistication and audacity.  You would set the alarms off, wait until police and security came and search and left, then you would re-enter and remain thieving property for some hours.  You brought oxy cutting equipment to some premises but were never able to get into any safe.  Fortunately for you and for the owners, a good deal of the property was recovered.  In particular, the items of jewellery that were valued at over $650,000 stolen the night before your arrest.

10It is an important factor in assessing the gravity of your crimes to ascertain and acknowledge the value of the items that were stolen, but at the same time consider what amount of the items were recovered.  In this instance there were significant amounts recovered.  But on any measure, these are serious examples of the crime of burglary and theft.  The gravity of the offending is considerable and your moral culpability high.  This was no relatively spontaneous break-in to a premises to grab cash or small electrical items.  You began at a high level and escalated upwards from there.

11You are now almost 41.  You have limited prior convictions, all but one being for driving offences, though the offences that you committed in 2007 and 2008 ultimately resulted in you serving three months' in prison as a consequence of breaching a suspended term of imprisonment. 

12You were born in Tasmania.  Your upbringing was very difficult.  Your father was an alcoholic and a violent man.  Your mother and sister left and went interstate when you were nine.  You remained in Tasmania and were made a ward of the State by the age of 13.  Up to that time, your childhood was devoid of support and proper parenting.  On the contrary, it was chaotic and violent.  As a ward of the State you were subjected to further physical and psychological abuse.  You learned to burgle, instructed by older adolescents.  You spent time in Youth Detention.  This involved solitary confinement, that is of a young teenager.  The effect has been on-going.  But you settled, it seemed, around the age of 15. 

13You remained at school to year 10 but it was a hard time for you.  After school, you were able to get work from time to time in Tasmania.  You met your first partner and moved to Melbourne.  Ultimately, you gained and skills as an aborculturalist.  You had solid work up until 2014.  That work history is to your credit and gives hope for the future.

14You moved to the Nagambie area and you and your first partner had a daughter.  Your relationship ended.  You commenced your current relationship.  There are two children now of that family and they are important to you.  Your skills as an aborculturalist saw you involved in the clean-up of the Black Saturday bush fires.  You saw traumatic scenes and they have remained with you.  You also had the trauma of finding your mother-in-law, who suddenly passed away in her sleep, in late 2012. 

15You have used cannabis from an early age.  You took up using Ecstasy and then ice from April 2013.  This became expensive.  Your work slowed down in early 2014 and you lost your job.  You were in financial difficulties and at a low ebb.  Although arrested on 14 October 2014 at which time you confessed and made plain that you were going to plead guilty, your lawyers arranged for a psychologist to see you as late as March 2015. 

16In the end, the psychologist's report reveals that you have no frank psychological problems or symptoms or matters relevant to my sentencing task.  Rather, you have unresolved grief and low self-esteem.  I will deal with you as judges have for years, as a man with a good deal of potential, who fell on harder times, using drugs as self-medication and then took to crime to try to fund drug use as well as family bills and commitments.  You have - and this is no unimportant matter - low self-esteem and a sense of anger.  You need to deal with this, Mr Hepburn.

17You have woken up to your considerable fall and are now completely or have been completely remorseful since your arrest.  You intend to recover your relationship and lawfully provide for your family, as you have in the past.  All that is important in establishing your good prospects.

18This is yet another example of how ice destroys families and leads otherwise hardworking men into serious crime and consequently into gaol.  As has been re-stated over and over, and appropriately so, ice is a scourge, ruining families and causing havoc in communities.  Ordinary law-abiding citizens and, in this case, store owners and owners of businesses are seriously affected by someone's conduct while they were affected by ice or were seeking money to get more of that drug.

19Your plea of guilty will be acknowledged by a lesser penalty than otherwise would be the case. It was a very early plea. As noted, you are remorseful, this is important in and of itself and it also provides a basis to see your prospects of reform as being good. Your counsel sensibly conceded a gaol term was inevitable but he submitted that punishment and rehabilitation could be best achieved by gaol combined with a community corrections order, as is now permitted by the Sentencing Act. The prosecution simply submitted that 162 days that you have spent thus far in prison was not sufficient punishment.

20Your counsel referred to the recent Court of Appeal decision in Boulton & Ors v. The Queen.  This guideline judgment has, to use the language of the Court of Appeal, changed the sentencing landscape.  The fact that sentencing purposes of punishment and rehabilitation can be simultaneously achieved was a matter emphasised by the Court of Appeal.  Also, the importance of having an accused take responsibility for important aspects of on-going rehabilitation is part of a community corrections order, that is it will be up to you whether you deal with your drug problem, your mental health problems.  You will be aided by the programs that are made available and you will be required to do them.  But in the end these things fall back to someone having determination not to end up in gaol again.

21Also, a community corrections order has the important feature of enabling an offender to maintain family relationships which are, in your case, central to your permanent reform.  Just last week in the matter of Cole (a pseudonym) v The Queen, the Court of Appeal again gave emphasis to the importance of community corrections orders. It said that Boulton makes plain that if community corrections orders are to serve the purpose which Parliament quite clearly envisaged for it, sentencing courts, including the Court of Appeal, need to rethink the conventional wisdom about whether prison is really the only option.  The court went to say in Boulton, the court was "...at pains to spell out the grave disadvantages of imprisonment both for the offender and for the community and the unique advantages of community corrections orders in enabling real punishment to be imposed at the same time as advancing the offender's rehabilitation in a way no prison term ever can."

22In practical terms, Mr Hepburn, what is sought here is a sentence of imprisonment followed by a community corrections order, that is in combination proportionate while at the same time punishing you, denouncing your serious criminal conduct, deterring you and others and facilitating your reform.  In my view, prior to Boulton, the sentence for these sorts of well organised commercial burglaries would attract a sentence beyond the two year cap for combined imprisonment and community corrections order. 

23However, considering all matters in these offences and all matters connected with you and assessing, and in broad terms as a yardstick, other like crimes, other sprees of commercial burglaries, it seems to me the likely non-parole period would be close to the two years which would be imposed on you given your very minimal and wholly different prior offending, your past problems and your good prospects for the future.  These sentencing matters are not to be reduced to mere mathematical equations. 

24In all the circumstances, it seems to me, that a sentence of imprisonment less than might otherwise be the case, combined with a community corrections order is the just and appropriate outcome and one that provides the best chance for you to stay off ice and to rehabilitate.  It is in the community's interest that you do reform and gaol is not the best place for that.

25That said, it cannot be overlooked that my sentence does involve a significant time in gaol, which is always a harsh and taxing penalty.  You will remain in gaol for some time, Mr Hepburn, but much less than might otherwise have been the case. 

26As I have said, you have been assessed for a community corrections order, it is favourable and I intend the conditions that were recommended save that there is no need for any treatment and rehabilitation relating to alcohol use. 

27I intend to impose an aggregate sentence for these crimes or burglary and theft.  They arise from a course of conduct, the most serious is the burglary of the jewellery store, though all are serious crimes.

28For committing the seven burglaries, the seven thefts and damaging property Charges 1 to 15, you are convicted and sentenced to 15 months' imprisonment.  In addition, I order that you undergo a community corrections order that will last for two years upon your release.  You must do 350 hours of unpaid work;  you must undergo treatment and rehabilitation for your drug addiction;  you must undergo treatment and rehabilitation for mental health problems;  and you are to undergo treatment and rehabilitation for programs to reduce your offending.  By and large, that will be a program known as the Kineish program for men, psychological education programs that try to assist you towards a healthy lifestyle.  Whatever it is, you do it. 

29You also must be under supervision of the Office of Corrections.  There are other mandatory conditions that apply and I will go over all these shortly when the document is produced.  For committing the crime of possessing the air rifle that was unlicensed, you are convicted and fined $500;  for committing the crime of possession of the drug of dependence, methamphetamine, you are convicted and fined $200;  for the summary offences of driving while suspended or driving while disqualified, there is an aggregate penalty of two months' imprisonment, which is concurrent with the sentences that I imposed on Charges 1 to 15.

30Had you pleaded not guilty to these matters and been found guilty of them by a jury, I would have imposed a sentence of four years and nine months, with a minimum of three years.  You have served 162 days in custody on remand, taking into account that it has been on remand, I take into account in general terms in imposing this sentence, the fact that you have done all you can in prison but it has not been easy and I declare that the 162 days that you have served in custody is to be considered as part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so that prison authorities are left in no doubt that you have already served 162 days of the sentence that I have imposed.

31Are there any ancillary orders?  I was handed one of them earlier and I have signed it and I have made an alteration to his name, it has a misspelling in his second name. 

32Mr Hepburn, the order that I have placed you on in addition to the term of imprisonment is a community corrections order lasting two years which will commence upon the end of your period of imprisonment.  Once you are released, you must attend at the Shepparton Community Corrections Service here in Wyndham Street, Shepparton within two clear working days of being released.  Do you understand?

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR:  These conditions, the ones I am about to outline, are mandatory, they apply to everyone, they apply to you. 

35You must not commit any other offence for which you could be imprisoned during the time that the order is in force.  I do not need to make it plain to you that should you commit another offence then all the mercy that has been shown to you will not be repeated.  This new regime of using community corrections orders is to give someone a chance but if they do not take it up, there will be no second chance.

36You must comply with any obligation or requirement there is under the sentencing regulations.  I am told that they take your photograph and get other details so they know who they are.  You have to co-operate with that.

37You must report to and receive visits from the Office of Corrections;

38You must let the Office of Corrections officers know within two clear working days if you change your address or you employment.  Obviously keep them up to date with what is happening with you;

39You must not leave Victoria without first getting permission to do so;  and

40You must obey all lawful instructions from the Office of Corrections. 

41Those conditions apply to everyone - what applies to you is:

42You must perform 350 hours of unpaid community work over two years, as directed by the regional manager.  That is no light amount, that is beyond what normally is given but it is appropriate because of the seriousness of your crime.  It has to be seen by the community that you are putting back.  It is not an option, you have to turn up on time, every time and do it all.

43You must be under the supervision of the Community Corrections Officer for the whole of the two years, that may involve going to see them and making appointments and so on. 

44Importantly, you must undergo assessment and treatment for drug abuse and dependency, as directed by them. 

45You must undergo mental health assessments and treatment which may include psychological or psychiatric treatment, as directed by the regional manager.  If they say to you go to your general practitioner and get a mental health plan, just do it.

46OFFENDER:  Yes.

47HIS HONOUR:  You must participate in programs and courses that address factors relating to your offending, and I have outlined what they have in mind for that.  Things may change, you just do what they say. 

48Do you follow all that?

49OFFENDER:  Yes.

50HIS HONOUR:  If you consent to that and sign it, then you will commence as a sentenced prisoner and once you are released, you will commence this.

51OFFENDER:  Yes.

52HIS HONOUR:  If you wouldn't mind going to the back of the court and getting him to sign it, Mr Pillai.

53(Community Corrections Order signed and acknowledged.)

54You have signed that, Mr Hepburn, and that indicates you will do the order.  Don't come back before me for not having done it because it seemed too hard or something.

55Is there anything further required?

56MR O'DOHERTY:  No, Your Honour.

57HIS HONOUR:  Mr Pillai?

58MR PILLAI:  No, Your Honour.

59HIS HONOUR:  Mr Hepburn, you will get a copy of this from Mr Pillai in due course but if you return with the police to the cells here and back to prison, thank you.

60MR PILLAI:  Your Honour please.

61HIS HONOUR:  Mr Pillai, my tipstaff will get a copy to you as soon as possible so that you can see him before he's taken anywhere.

62MR PILLAI:  Thank you. 

63HIS HONOUR:  Otherwise you can leave the Bar table at any juncture.

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