Director of Public Prosecutions v Hiku
[2014] VCC 2055
•10 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01547
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDRE HIKU |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2014 | |
DATE OF SENTENCE: | 10 December 2014 | |
CASE MAY BE CITED AS: | DPP v Hiku | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2055 | |
REASONS FOR SENTENCE
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Catchwords: Three charges of aggravated burglary and three charges of theft, possess cannabis, three summary charges of dealing with property suspected of being the proceeds of crime and two summary charges of resist police – serious examples of aggravated burglary with occupants asleep at the time of entry and good stolen in very close proximity to where they were sleeping – defendant had lengthy criminal history for dishonesty offences, apparently associated with heroin addiction – total effective sentence four years, one month imprisonment - non-parole period 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Office of Public Prosecutions |
| For the Accused | Mr J Dalziel | Ellinghaus & Lindner Lawyers |
HER HONOUR:
1 Andre Hiku, you have pleaded guilty to three charges of aggravated burglary, each of which carries a maximum penalty of 25 years’ imprisonment, three charges of theft, each of which carries a maximum penalty of 10 years’ imprisonment and possessing a drug of dependence, cannabis (small quantity) which carries a maximum penalty of five penalty units. In addition, you have consented to summary charges being uplifted from the Magistrates’ Court and have pleaded guilty to two charges of resisting police, each of which carries a maximum penalty of six months’ imprisonment and three charges of dealing with property suspected of being the proceeds of crime, each of which carries a maximum penalty of two years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). The three charges of aggravated burglary and theft were committed on the evening of 4 May 2013 and the early hours of 5 May 2013.
3 Charge 1 involved you breaking and entering through a bedroom window into the home of your 90 year old victim, Ms Naughton, who was on her own and had fallen asleep in the lounge room whilst watching television. You went through bedside drawers and shoe boxes and entered the lounge room, where you stole your victim’s wallet from inside her handbag, which was on the back of the lounge room door about one metre from where she was sleeping. You also took her address book from a nearby table. This conduct constitutes Charges 1 and 2 on the indictment.
4 Some hours afterwards, at approximately 1am, you entered the home of your next victim, Ms Culhane-Saamu, a 17 year old woman who was home alone and asleep in her bedroom. You entered by sliding an unlocked window open and went through the house, opening doors and cupboards. You entered her bedroom and stole her wallet from under a pillow and a USB stick from her bedside table. She woke to find you watching her from a corner of the room. You stared at her for a short time and then walked out of the house. This conduct constitutes Charges 5 and 6.
5 Within a couple of hours you had entered yet another house by opening a window. This time your victim was an 87 year old woman, Ms Masny, who was alone in her home and asleep in her bed. You went through the drawers and cupboards in all rooms of her house and then entered her bedroom, where you removed a purse from under her pillow while she was sleeping, as well as $1,000 in cash and three address books. You moved onto the lounge room and your victim was awoken by a noise. She got out of bed and saw flashes of torchlight in the lounge rooms and switched on the light to find you in the lounge room, following which you ran out the back door. This conduct constitutes the basis of Charges 3 and 4.
6 At approximately 3am on 5 May 2013, police observed you driving a car, not far from where you had committed the two last aggravated burglaries and thefts. You were intercepted and initially declined to get out of your vehicle. Ultimately you did so, and police found the wallets of Ms Naughton and Ms Culhane-Saamu under the front driver’s seat. You were told that you were under arrest, but fled and were pursued by police for approximately 50 metres. When they caught up with you, you struggled with each of the officers, one of whom used OC foam to try to disable you, but it had no effect, and you continued to resist arrest by struggling with each of the officers. This conduct constitutes the summary charges 18 and 19.
7 Police then searched your car more thoroughly and found the address books belonging to Ms Masny and Ms Naughton. In your car they also located other property which was the suspected proceeds of crime: namely, $1432.15 cash (Summary Charge 14); various items of jewellery, including four ladies’ rings, earrings, necklaces, watches and bracelets (Summary Charge 15); a number of male T-shirts on wooden hangers; nine bottles of champagne (mostly French) and two bottles of wine, such property being valued at $2,000 (Summary Charge 16).
8 Police also located a small amount of cannabis in the console of your vehicle. The prosecution concedes that this is a small quantity (that is under 50 grams). This is the basis of Charge 7 on the indictment.
9 When interviewed by police you denied any involvement in the aggravated burglaries and thefts and claimed that you had found the three wallets on the side of the road. You claimed that you had purchased the T-shirts for five dollars each “a couple of hours ago”, but were unable to give police the name or address where that had occurred. You also claimed that you had paid approximately $20 “all up” for the several bottles of alcohol from a friend “Michelle”.
10 You were charged with all offences on 5 May 2013. For some reason, which is unclear, the matters on the indictment all remained in the summary stream of cases in the Magistrates’ Court for one year, until a magistrate declined to have them remain in that stream. They were uplifted to the indictable stream on 6 May 2014. You apparently had legal representation but terminated your lawyers’ retainer on the morning of the committal hearing on 1 September 2014. You were committed for trial in the County Court and remained unrepresented for a time. Ultimately, your current lawyers were retained and, on 24 October 2014, agreement was reached by your counsel with the Prosecution that you would plead guilty to the offences to which you have pleaded guilty. You were formally arraigned on the charges on the indictment on 29 October 2014 and pleaded guilty to those charges.
11 You are presently aged 38 years, having been born on 21 April 1976. (Your date of birth took some clarification as three other dates of birth are recorded on your criminal history which also has an alias.) You come before the court with an extensive criminal history dating back to 6 March 1992. You have appeared before courts on many occasions, primarily for dishonesty, assault and driving offences. It is of note that you have three prior convictions for aggravated burglary, with the same aggravating factor as the offences for which I must sentence you, namely, that a person was present. You also have prior convictions for resisting and assaulting police, many prior convictions for theft and many prior convictions for handling, receiving or retaining stolen goods. Over the years you have received sentences of detention in Youth Training Centre, Community-Based Orders which you have breached, a suspended sentence of imprisonment which you have breached, and quite a number of sentences of imprisonment ranging from 7 days to 18 months’ imprisonment.
12 In a plea on your behalf, your counsel, Mr Dalziel, stated that you were born in New Zealand, the second youngest of six children. None of your siblings have been in trouble with the law. Your parents separated when you were approximately six months old and you were reared by your father, who was described as being strict, hard and “heavy handed” with discipline, as well as being an alcoholic. You apparently returned to live with your mother when you were about 12 years old and, soon afterwards, came to live in Australia with your mother and her new partner. You had attended secondary school in New Zealand to Year 8 and, when you came to Australia in 1999, your attempts to resume your schooling were short-lived, as you began to get into trouble away from the home and took up drinking and, later, drugs. Your counsel stated that you were 16 years old at the time of the first offence alleged against you and, thereafter, your life has been a cycle of drug addiction and offending and periods in Youth Training Centre and imprisonment. He stated that, by age 24, you had become addicted to heroin and it had dominated your life ever since.
13 Mr Dalziel stated that, although your criminal history report records appearances in Magistrates’ Courts in 2008 and 2009, in fact, the offences of which you were convicted at those court hearings were committed prior in time to your appearance at Melbourne Magistrates’ Court on 11 December 2007. He stated that between 2008 and the offences for which I must sentence you committed in 2013, you did not commit any offences. He told the Court that, after you completed the three month term of imprisonment imposed by Geelong Magistrates’ Court on 28 August 2008, you went to live with your mother and had been on a methadone program. He stated that you had shown that, when you were not using drugs, you had a good capacity for work. According to your instructions, over the years you worked as a forklift driver for Bev Chain Logistics for a total of four years, for one year with Nylex and carried out garbage disposal work at a couple of employers, most recently for Kleenaway Waste for approximately one and half years. Mr Dalziel said that when you were in this employment you were up to start work at 5am and worked five days a week.
14 The Court was told that in 2012 you became concerned about your son, Joel, who is now aged nine years, who was living with his mother, Rima Yildiz, your estranged wife. You began to receive calls that indicated your son was not being cared for and, so, you moved from your mother’s house to another house in Hoppers Crossing to live with your former partner, Joel, and another child, whom Rima had had from another relationship. According to your counsel, Rima has a significant drug problem and once you resumed living at her house, you relapsed into drug use and began offending. Prior to this you had been working and had purchased a car for $30,000 and had paid off $20,000 of a loan relating to it. Once you resumed drug use, your application to work declined and you resorted to your long term habit of committing offences of dishonesty allegedly to support your heroin habit. Mr Dalziel said that your former partner has now disappeared and your child, Joel, is now being cared for by your mother.
15 Mr Hiku, the offences of aggravated burglary for which I must sentence you are serious, brazen examples of aggravated burglary with a person being present. On each of the three occasions you entered someone’s home through a window and on Charge 1 it was a forced entry by breaking the window. On each of the occasions it was a time of the evening or early morning when a person might have been expected to be at home. In relation to Charge 1, clearly a television was on. At the times of 1am and 3am, when you committed the aggravated burglaries comprising Charge 5 and Charge 3, respectively, an occupant of a house might be expected to be asleep. On each of the three occasions it was apparent to you that there was, indeed, a person present in the house, but you, nonetheless, rifled through possessions and stole purses from under their very pillow or very close to where the occupant was sleeping. Your crimes were carefully and calculatedly executed.
16 In 1997 the penalty for aggravated burglary was increased from 15 to 25 years. The then Attorney General, in supporting the legislative change for this increased penalty stated in Parliament, “The prevalence of burglary and home-invasion style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The government wishes to send a message to offenders that these crimes will not be tolerated”.[1]
[1]Victoria Parliamentary debates, Legislative Assembly, 24 April 1997 837 (Jane Wade, Attorney-General)
17 In this case, your victims have declined to make Victim Impact Statements. However, as has been stated by the Court of Appeal, “It requires little imagination to appreciate the acute sense of vulnerability of the victim who awoke to find that an intruder had been by her bed during the night.”[2]
[2]R v L Hagge [2009] VSCA 60 at paragraph [35]
18 In relation to Charge 1, your 90 year old victim, Mrs Naughton, in her statement to police said that she awoke to find that someone had been through her chest of drawers, that her wallet was gone and that a window in the bedroom had been broken and was open. She stated, “This has left me scared to be home alone.”[3]
[3]Depositions page 31
19 Your 87 year old victim on Charge 3, Mrs Masny, described in her statement to police that she had lived in her home for 60 years, the last ten of which had been by herself. She was awoken by your noise in the lounge room and the flashing light of your torch and put the light on to find a man wearing a black hooded jacket in her lounge room, who then went out the back. She then described putting on all the lights in the house to check if there were any more men, stating, “I was very scared. I had no chance to run away.” Her sense of violation is apparent from how she described that her purse was taken from under her pillow and how this man was in her bedroom and had gone through all her drawers. She expressed disbelief that you were in her house and clearly had trouble coming to terms with her feelings about this.[4]
[4]Depositions page 33 – 34
20 Your 17 year old victim on Charge 5, Ms Culhane-Saamu, in her statement to police said she was home alone. She described waking up to find you standing in the corner of her bedroom and staring at her for a couple of seconds before you went away. She stated to police, “I was really scared. I opened the front window and climbed out. I was too scared to go through the house.” She went on to state, “I don’t think I want to be left in the house on my own any more. I don’t feel safe.”[5]
[5]Depositions page 13
21 Your conduct in breaking into people’s homes at night and creeping around and prying into their cupboards and drawers strikes at the fundamental right of every citizen to feel secure in his or her own home. Apart from the inconvenience and anxiety occasioned by theft of a wallet or address book, the psychological impact of invading a person’s home can be enduring. For you, dishonesty had simply become a way of life over decades and you were careless of any impact it may have on your victims. Unhappily this despicable conduct of invading the home of another for the purpose of stealing is very prevalent. In sentencing you, emphasis must be placed on denouncing your conduct and general and specific deterrence and just punishment. There is no doubt in all the circumstances of the case that the only appropriate sentence for these offences of aggravated burglary is a term of imprisonment.
22 In sentencing you, I take into account that, although you were uncooperative with police, both in resisting arrest and telling lies in your record of interview, you did plead guilty to the charges for which I must sentence you. It would appear there has been delay of some 12 months whilst the indictable matters for reason unknown remained in the summary offences list in the Magistrates’ Court for one year. Although the overall delay is not inordinate, you are entitled to have some account taken of the fact that this matter has taken longer to be concluded than might otherwise have been the case.
23 Your counsel has invited the Court to accept your plea as a remorseful one. Save for Exhibit 2, a letter written by you “To Whom it May Concern”, which states that you are “very remorseful for what has happened”, I have no evidence of remorse. Your statement makes no mention of the likely frightening impact of your conduct on your victims or, for example, that the items of jewellery found in your possession might have been something precious and sentimental to their owners. There is no evidence that you have any victim empathy and the tenor of your letter is more one of feeling sorry for yourself, rather than feeling sorry for your victims. Nevertheless, you are entitled to a discount on the sentence which would have been imposed had you not pleaded guilty. You have spared the State the cost of a trial and your victims have not been put through the trauma of having to give evidence.
24 In your letter, you asked the Court to show compassion to you because you feel that “without my presence my family will fail and tear apart”. It seems that you were a fairly absent father to your child because you were in prison in the early years of his life. Also, it would appear that your family was already fractured by the ravages of drug abuse by yourself and your estranged wife. Indeed, when you were arrested and remanded in custody, the Department of Human Services had to be contacted to make arrangements for the care of your son by your mother. In these circumstances, you have only yourself to blame for not being there to look after your son and your appalling criminal record is hardly a fine example to him.
25 On the plea there was a dearth of evidence of mitigatory material. There was no psychological report, no report from any doctor who had prescribed methadone for you, no references from employers or evidence of any other type called on your behalf. It is to your credit that for a period of some years after being released from custody in late 2008, you apparently abstained from illicit drug use and also from criminal offending. The fact that you apparently relapsed into heroin use shows the depth of that scourge of addiction. I take into account that, whilst you have been in custody, you have spent much of it in a protection unit. The reasons for this were not made clear to the Court and there was some reference by your counsel to having been involved in disputes with other prisoners. There is no suggestion that you are confined to your cell for any longer period of time than mainstream prisoners, although clearly being in a unit with only some 60 prisoners, as is the case in Sirius Unit, limits the number of persons with whom you can mix. Apparently, there is some reduced opportunity for employment in that you are unable to undertake industry jobs for which you may be eligible in the mainstream prison population. I take these limitations into account in sentencing you. It would appear that you have, at least, reflected upon your past wrongdoings whilst you have been in custody as evidenced by your letter, Exhibit “2”, and have utilised your time to be assessed and placed on a waiting list for an alcohol and drug rehabilitation program. Also, a letter from a forensic alcohol and drug counsellor, dated 2 October 2014, (part of Exhibit “1”) indicates that you have “neutral identified drug user status and have not been charged with a drug-related offence” whilst in custody. It is in your favour that you have undertaken a number of subjects at Kangan Institute and completed Certificates in Kitchen Operations, Workplace Safety Arrangements, Cleaning Operations and Vocational Preparation (such as Personal Effectiveness, Traffic Control and Study Skills).
26 Although your lengthy history of committing crimes does not inspire optimism as to your prospects of rehabilitation, it would be wrong of this Court to write you off as having no such prospects. I consider that your capacity to work full time and to remain drug-free over a number of years following decades of a significant addiction, the support of your family, particularly your mother and sister, and the love that you have for your nine year old son, are factors which give you a better chance of rehabilitation than many long term drug-addicted persons might have. Ultimately, it will depend upon you as to whether you decide to seriously try to adopt a drug-free and crime-free lifestyle.
27 It seems that you have completed short parole periods in the past. In my view, a fairly lengthy parole period seems appropriate, not only to remind you that if you reoffend you will automatically be returned to prison, but, also, to help rehabilitate you back into the community by finding supportive programs, accommodation and employment.
28 Finally, in sentencing you, I do take into account that the three aggravated burglaries and associated thefts all took place within less than 12 hours, and it is appropriate to apply totality in sentencing you overall.
29 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of two years and three months.
30 On Charge 2, theft, you are convicted and sentenced to be imprisoned for a period of six months.
31 On Charge 3, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of two years and three months.
32 On Charge 4, theft, you are convicted and sentenced to be imprisoned for a period of six months.
33 On Charge 5, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of two years and three months.
34 On Charge 6, theft, you are convicted and sentenced to be imprisoned for a period of six months.
35 On Charge 7, possessing cannabis, you are convicted and discharged.
36 On the summary charges, you are sentenced as follows:
37 Charge 14, dealing with property suspected of being the proceeds of crime, namely $1,432.15, you are convicted and sentenced to be imprisoned for a period of six months.
38 Charge 15, dealing with property suspected of being the proceeds of crime, namely, various items of jewellery, you are convicted and sentenced to be imprisoned for a period of six months.
39 Charge 16, dealing with property suspected of being the proceeds of crime, namely a quantity of T-shirts and bottles of liquor valued at $2,000, you are convicted and sentenced to be imprisoned for a period of six months.
40 On Charges 18 and 19, each of which is a charge of resisting a member of the police force in the execution of his duty, you are convicted and sentenced to an aggregate term of imprisonment of four months.
41 The sentence imposed on Charge 1, two years and three months, is the base sentence. I direct that nine months of each of the sentences imposed on Charges 3 and 5 and one month of each of the sentences imposed on Charges 14, 15 and 16 and one month of the aggregate sentence imposed on Charges 18 and 19, be served cumulatively upon the sentence imposed on Charge 1 and upon each other. Save for such cumulation, all sentences imposed this day are to be served concurrently.
42 The total effective sentence is thus four years and one month’s imprisonment. I direct that you serve a period of 30 months' imprisonment before becoming eligible for parole. I declare a period of 584 days pre-sentence detention be reckoned as time already served under the sentences imposed this day.
43 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed this day would have six and a half years' imprisonment with a non-parole period of four years.
44 Pursuant to s78(1) of the Confiscation Act 1997, I order that the property referred to in the schedule. This property comprises one silver foil containing green vegetable matter, two screwdrivers, one pair of iron clad gloves, two hand held torches, one head torch and ammunition round, be forfeited to the State and I further direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the end of the appeal period, whichever is later, when it may be tested and/or analysed and then destroyed.
45 Pursuant to s33(1) of the Confiscation Act 1997, I order that the property referred to in the schedule be forfeited to the Minister; namely, €10 cash, £65 cash, two bottles of Veuve champagne, one bottle of Chandon, one bottle of Billecart, one bottle of Bollinger, one bottle of Pol Roger, one bottle of Moët & Chandon, one bottle of Mumm Champagne, one Arras champagne, two bottles of Turkey Vineyard, two gold rings with stones, one plain gold ring, one plain gold/white ring, one gold bracelet, one gold chain, one gold watch, two pairs of gold earrings, three gold chains, two gold chain attachments, one purple cloth bag.
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