Director of Public Prosecutions v Hilder
[2021] VCC 1945
•26 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01926
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIERAN HILDER |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 26 November 2021 |
CASE MAY BE CITED AS: | DPP v Hilder |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1945 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire | |
For the Accused | Ms R. Heley |
HIS HONOUR:
1Kieran Hilder, you are to be sentenced on indictment M10806153.2 for three charges of theft. one charge of an aggravated offence of exposing an emergency worker to risk by driving under s317AD(1)(a) of the Crimes Act and one charge of handling stolen goods.
2The maximum sentences are 10 years’ imprisonment for theft, 20 years’ imprisonment for the aggravated offence of exposing an emergency officer to risk, and 15 years’ imprisonment for handling. Related to that offending, you are to be sentenced for the following summary charges: failing to render assistance after an accident (maximum sentence 14 days’ imprisonment); driving whilst disqualified (maximum two years’ imprisonment); two charges of committing an indictable offence on bail (three months’ imprisonment); and trespass under s9 of the Summary Offences Act (six months’ imprisonment).
3You are also to be dealt with for contravention of a Community Corrections Order I imposed upon you on 29 September 2020. I shall return to that after sentence on the indictment and related summary offences.
4On those matters, you pleaded guilty before me on 22 November. When interviewed by police on 20 April 2021, you exercised your right to silence. Committal went by hand-up brief on 6 September and you entered a plea of guilty. You receive the benefit of your plea of guilty and that level of cooperation in the proceeding. Your plea of guilty has facilitated the interests of justice, accepted responsibility and expresses remorse. The utilitarian benefit of the plea is enhanced in the light of the impact of COVID-19 pandemic restrictions on the criminal trial system.
5At your plea hearing, also on 22 November, Ms Maguire for the Crown tendered a written amended prosecution opening dated 19 November 2021. She provided written outlines of submission related to both the indictment and related matters and your breach of the Community Corrections Order I imposed.
6Mr Rolfe, for you, tendered the forensic psychological report of Bernard Healey dated 17 October 2021; and also provided written submissions on sentence. I stop to say that I do not think the Healey report was formally tendered. I will be marked Exhibit 1.
#EXHIBIT 1 - Report of Mr Bernard Healey dated 17/10/21.
7I think I said this, Mr Rolfe also provided written submissions on sentence.
8The circumstances of your offending on the indictment and related charges are comprehensively set out in the tendered Crown opening. My own summary may therefore be shorter. It is also informed by matters put on your behalf not challenged by the Crown.
9As stated, on 29 September 2020, I sentenced you to a Community Corrections Order. The matter came before me as an appeal from the Magistrates’ Court sentence for a very large number of offences, predominantly of dishonesty, committed in the approximate period February to July 2020.
10On 17 September 2020, the Magistrate had sentenced you to an aggregate or total term of six months’ imprisonment and a 12-month Community Corrections Order upon release. There were several conditions, including rehabilitation or treatment for drug use and mental health. Fifty days of pre-sentence detention were declared. On 29 September, I set aside that sentence and imposed four months’ imprisonment with a 12-month Community Corrections Order upon release. I declared 63 days of pre-sentence detention. The Community Corrections Order contained similar rehabilitation program conditions, curfew, non-association and judicial monitoring conditions. You were to live with your father in Marysville and work at a local baker.
11You were released onto the order, but after about six weeks lapsed, absconded and ceased contact with Community Corrections. You had left your father’s home. This was the situation by late November 2020. You committed these new offences in the period 17 to 20 April 2021.
12On 17 April at about 9.30 am, you stole the Isuzu tow truck of Navroop Singh, who had left his keys in the vehicle at a Cranbourne service station. This is charge 1 on the indictment.
13Navroop Singh reported the theft and at about 9.45 am you were observed driving by Acting Sergeant Tyson Jones in Cranbourne West. He intercepted you, parking his police vehicle about five metres behind the truck, stationary to the side of the road. As Sergeant Jones was preparing to exit the vehicle, you reversed into it, the truck tray colliding with and crushing the front narrowly short of Jones and shattering the windscreen. The police vehicle, Jones inside, was pushed backwards. It sustained major damage. Sergeant Jones was not injured. That is charge 2, an aggravated offence of intentionally exposing Sergeant Jones to risk. You drove off. That is the summary offence, failing to render assistance after accident.
14Soon after, you drove as a trespasser into a construction site nearby. That is the summary offence, trespass. You left the truck and fled, not before stealing from within it a closed circuit camera, iPhone, keys and wallet (charge 3, theft). Those things have not been recovered.
15These offences were committed whilst on bail to appear at the Dandenong Magistrates’ Court on 23 April.
16There was further offending on 20 April. In the early hours of that morning, the BMW sedan of Brigette Hanson was stolen by another person. At about 10 pm on that day, you were located driving it, knowing it to be stolen. That is theft, Charge 4, under an extended Crimes Act definition. There was a stolen plate on the car. That is said to be charge 5, handling stolen goods. During the plea, I expressed some doubt as to proof of this offence, particularly related to the necessary intention or state of mind. I shall not impose a penalty.
17The offences on 20 April were committed whilst on the same bail.
18Police arrested you in the BMW. You resisted in a number of ways and capsicum spray was necessary. You had been driving the two vehicles whilst disqualified. You are charged with that on 17 April; that is, driving the truck.
19You are a 25-year-old man awaiting this sentence in remand custody. You were raised in Marysville and have a twin sister and older brother. Your mother was diagnosed with multiple sclerosis in 1998, when you were two. She deteriorated quickly, in particular, mentally. She did not recognise her children by the time you were three. She died in 2007 when you were 11.
20Your father raised the children from an early time as a single parent. He remains supportive of you. Upon release, you may live with him and the prospect of re-employment at the Marysville Bakery.
21In 2009, when you were 13, the family lost the Marysville home and all belongings in the Black Saturday fires. In very precarious circumstances, your father drove the family from the town oval to safety in nearby Alexandra. You lived in a rental property in Alexandra until the Ministry of Housing rebuilt the Marysville home.
22In this context, you left school after Year 10. You began, but did not complete an apprenticeship as a panel beater. Your other main employment has been as a fencer, and with your brother in landscaping. You worked part time at the Marysville Bakery from 14.
23Drug abuse is a major feature in your offending. You began using cannabis at 16, ice amphetamine at 17 or 18. You have also abused the drug GHB. At the time of this recent April offending, you were using ice daily.
24Forensic psychologist, Bernard Healey, diagnoses a drug-use disorder. He also states ongoing post-traumatic stress disorder symptoms related to your childhood and developing years’ experiences. Testing indicated what he terms, ‘Collectively significant findings within the bipolar spectrum’ and suggestion of a ‘Schizoid trend’. However, it is not put that the principles stated in The Queen v Verdins and like cases are relevant to your sentence.
25Your criminal record states four court appearances between March 2020, when you were 23, and February 2021. Two appearances are for the offending for which you ultimately received my Community Corrections Order that is, a combined sentence of four months’ imprisonment and that) in September 2020. Multiple offences of dishonesty predominate. There are also driving drunk and bail offences. There is little violent offending. There are pending matters. The outline of Mr Rolfe states that you will face Dandenong Magistrates’ Court in December for what seems a consolidation of matters very similar to your past offending. I do not know what your pleas will be.
26This offending on the two April dates was drug-fuelled, haphazard, reckless, and dangerous. The offence of placing an emergency officer at risk is very serious, exemplified by a high maximum sentence. That you were using methylamphetamine heavily is no mitigation, given this and your past offending.
27It is an adverse factor that you were on a Community Corrections Order, perhaps two and on bail at the time.
28You have, whilst not very extensive, a relevant criminal history.
29The circumstances make relevant sentencing considerations of moral culpability, deterrence – that is both general and specific deterrence – the need to condemn the offending and proportionately punish it. The danger created by your offending in driving the stolen truck as you did makes important general deterrence in the way of protecting the community.
30Further, the aggravated offences of exposing an emergency worker to risk is a so-called Category 2 offence under the relevant provisions of the Sentencing Act. I must impose imprisonment, not one combined with a Community Corrections Order, unless there are ‘substantial and compelling reasons that are exceptional and rare’. Other provisions restrict the relevance or weight of certain matters; for example, your personal circumstances. I find no reason or circumstances in your case which justify departure from the stated requirement of that imprisonment. I would find, even without those restrictive provisions, that such imprisonment is the only appropriate sentence.
31However, all usually relevant and moderating factors impact upon what your length of head and minimum term should be. Those relevant moderating factors in your case include the following.
321. Your plea and cooperation. I accept that now, in an environment of drug-free custody, you feel genuine regret and remorse at what harm your offending did and may have caused. Not only that, but where it has placed you.
332. To some extent, the circumstances of your offending. The most serious of these offences is clearly your placing of Sergeant Jones into risk. That was intentional. I find that your fundamental aim was escape, not harm. Nevertheless, it is the risk caused to a person placed and obligated to public duty that states the gravamen of the offence. I need to assess the gravity of the offence in that way.
343. Your still relative youth and related to that, your personal history and circumstances. Mr Rolfe cast the trauma and disadvantage of your upbringing in terms of the case of Bugmy, which is challenged by the Crown. Whilst your early life did not feature the stark deprivation of Bugmy, the deterioration and loss of your mother when very young, and the highly traumatic circumstances of what was caused to the family by the Black Saturday fires should not be underestimated in their effect upon you at critical times in your life. They are relevant to your sentence. Also, for example, at least partly explaining your teenage lapse into drug use.
35Your psychological conditions and symptoms are also relevant. Your relative youth makes rehabilitation a more important consideration. I am guarded about the future, but do not discount genuine prospects, based on solid family support and available employment.
364. The hardship of imprisonment for you is increased by the impact of the COVID-19 pandemic. Risk, and anxiety related to that, restrictions to movement, programs and personal supports are relevant to you, as to other prisoners.
375. The principle of totality is applicable, both to the indictment and related summary offence sentences; and to the relation of that total sentence, to what I re-sentence you on the breach matter. There will be orders effecting concurrency and only part cumulation.
38These moderating factors go to reduce your sentence compared to what the objectively seen circumstances of it would otherwise require. This can be seen as particularly relevant to what minimum term I set.
39After considering and weighing what I see to be the relevant matters, I sentence you as follows on the indictment and related offences.
40On charge 1, six months’ imprisonment. On charge 2, imprisonment of two years and 10 months. On charge 3, four months’ imprisonment. On charge 4, four months’ imprisonment. On charge 5, I dismiss the offence under s76 of the Sentencing Act.
41As to the summary matters, for fail to render assistance, seven days’ imprisonment; on two charges of indictable offence on bail, one months’ imprisonment on each; for driving whilst disqualified, two months’ imprisonment; for trespass, one month imprisonment.
42As to cumulation, I direct that two months of the sentence for charge 1 and one month of the sentence for charge 3 and charge 4 be served cumulatively on the sentence for charge 2. That is a total effective sentence of three years and two months.
43Dealing with breach of Community Corrections Order, that has expired in October of this year. I agree with the recommendation of Community Corrections in the filed contravention report and shall re-sentence. Amongst other things, I must bear in mind the extent of your compliance, which was poor, delay, and totality.
44I shall sentence you to an aggregate sentence of 10 months’ imprisonment of which two months is cumulative upon the total sentence of three years and two months imposed on the indictment and related summary offences. I find the breach of Community Corrections Order proven, but impose no penalty.
45That is a total effective sentence in relation to or covering both proceedings of three years and four months. I set a minimum term in relation to that total sentence of 20 months. I declare under s18, as to that sentence, 221 days of pre-sentence detention. Had you not pleaded guilty, I would have imposed a total sentence of four and a half years with a minimum terms of two and a half years.
46Now, are there other matters? I think there is at least a compensation order, isn’t there?
47MS MAGUIRE: Yes, Your Honour. Just prior to dealing with that, my apologies, Your Honour, I received a contact from my instructor during the course of your sentence and I’ve been advised that in relation to the application of Liu, that additional four months that Mr Hilder served in relation to the initial sentence does need to be declared as pre-sentence detention in relation to the breach proceedings.
48HIS HONOUR: He served four months? It’s not ‑ ‑ ‑
49MS MAGUIRE: Yes. He served four months, and because – yes.
50HIS HONOUR: And that’s not taken up in the 221 days.
51MS MAGUIRE: No, Your Honour. He served an additional four months in relation to those original – so Your Honour has to set aside the original sentence that you imposed on the appeal and re-sentence, and that will include the four months that he initially served, and that’s consistent with Liu.
52HIS HONOUR: So, I still sentence 10 months?
53MS MAGUIRE: Yes, Your Honour.
54HIS HONOUR: But because ‑ ‑ ‑
55MS MAGUIRE: He does ‑ ‑ ‑
56HIS HONOUR: But because he served four months before release on the Community Corrections Order, that is treated as a s18 period.
57MS MAGUIRE: Yes. Yes, Your Honour.
58HIS HONOUR: All right.
59MS MAGUIRE: So, it was four months plus 215 days in relation to the breach.
60HIS HONOUR: I’ve come up with 221 days, because he’s kept on serving the remand period on the indictment, hasn’t he?
61MS MAGUIRE: Yes. My apologies, Your Honour. In relation to the breach, it would actually be, I believe, 220 days because the warrant for that one was executed the day after he was initially remanded on the fresh offending, the indictment.
62HIS HONOUR: But he can’t get the benefit of pre-sentence detention twice. It’s got to be ‑ ‑ ‑
63MS MAGUIRE: No.
64HIS HONOUR: I’m declaring on the total sentence between the two proceedings.
65MS MAGUIRE: Yes, Your Honour.
66HIS HONOUR: So what I need to do perhaps is just add the four months to the 221 days.
67MS MAGUIRE: Yes, Your Honour, that is so.
68HIS HONOUR: All right. What do you do with four months? Do you presume 30 days or what? Or do we go back a calendar and see which months he served?
69MS MAGUIRE: I will check to see if I have a pre-sentence report.
70HIS HONOUR: It would probably be the second. I sentenced him in – well ‑ ‑ ‑
71MS MAGUIRE: I’ll check to see if I have a copy of his pre-sentence report.
72HIS HONOUR: It becomes difficult, doesn’t it? I suspect he didn’t serve the four months because he was out – he was out and not complying by late November. I suspect he got the benefit of lockdown days.
73MS MAGUIRE: That is possible. Let me see if I’ve been given a pre-sentence report.
74HIS HONOUR: This is why Court of Appeal decision in Liu sometimes don’t really meet the practical circumstances of sentencing.
75MS MAGUIRE: Okay. Your Honour, I have a – I do have a pre-sentence report here. So, Your Honour ‑ ‑ ‑
76HIS HONOUR: Yes. I don’t think I’ll – go on.
77MS MAGUIRE: He was released from custody on 8 October 2020.
78HIS HONOUR: And I also have to redeclare the 63 days, don’t I?
79MS MAGUIRE: Yes, Your Honour. So it will be a total of four months, which includes that 63 days.
80HIS HONOUR: The 53 days was set off against the 63 days. So I’ve really just got to declare what he served.
81MS MAGUIRE: Yes.
82HIS HONOUR: So you need to work out what number of days there were between 29 September and 8 October.
83MS MAGUIRE: Yes. I believe that that would be ‑ ‑ ‑
84HIS HONOUR: Nowhere near ‑ ‑ ‑
85MS MAGUIRE: I’ll just do that now.
86HIS HONOUR: No, that’s not right. If I did that, I’d have to – I’d have to add in the 63 days, wouldn’t I?
87MS MAGUIRE: Yes, Your Honour. Sorry, maths is unfortunately not my strong suit, but I’m trying to figure it out on the – - -
88HIS HONOUR: But he served the 63 days. Then he served the period from 29 September to 8 October. So it’s the 63 days plus that.
89MS MAGUIRE: Yes, Your Honour.
90HIS HONOUR: All right. So we’ve got 63. All right, well let’s – you know, I think you’re going to have to meet the challenge of your mathematical deficiencies and tell me how many days there are between 29 September and 8 October. Not very many.
91MS MAGUIRE: No, it would be approximately 10 days, Your Honour.
92HIS HONOUR: So it’s 73 days.
93MS MAGUIRE: Yes, Your Honour.
94HIS HONOUR: So I add 73 days to the 221 days.
95MS MAGUIRE: Yes, Your Honour.
96HIS HONOUR: Now, what about that day he started – we better make it 74 days, because the warrant took him into custody on the Community Corrections Order breach a day before the ‑ ‑ ‑
97MS MAGUIRE: It was the day after, Your Honour. (Indistinct words).
98HIS HONOUR: Day after.
99MS MAGUIRE: Yes.
100HIS HONOUR: So we can leave it at 73. All right. So it’s 73 plus 221. That’s 294, isn’t it? So that’s my s18 declaration. Now, what do you want to say about any of that, Ms Heley?
101MS HELEY: Your Honour and my friend are better at maths than I am. I’ve been following the conversation and I think ‑ ‑ ‑
102HIS HONOUR: What we’ll do is, I think these days – no, I’m going on leave – I’m going on leave later today. I’m pretty confident I’m right, but I think these days you can come back to the court much more easily and have a declaration like that changed.
103MS HELEY: Can I just confirm Your Honour? So it was the – we had the original 221 days.
104HIS HONOUR: yes.
105MS HELEY: And then we’ve added 63, plus a further 21?
106HIS HONOUR: No, we’ve added 63, but then you’ve got to add the 10 days that he served before he got out on the four month sentence.
107MS HELEY: So that was the 10 days from 29 September to 8 October?
108HIS HONOUR: Yes. It might be 11 days. No. No, it’s 10 days. I’m pretty sure that’s right. I mean, you’ve got to do it that way, because that’s what he served.
109MS HELEY: Yes.
110HIS HONOUR: All right. So my declaration is 294 days. All right. Now, I need to make the compensation order. I think I’ve got it here somewhere. And to make it clear, that declaration is a declaration on the total sentence between the two proceedings. All right, now where’s the – yes, it’s a compensation order. Well, it’s payable to Navroop Singh, but was he the owner of the truck?
111MS MAGUIRE: No, Your Honour.
112HIS HONOUR: Or was Mr ‑ ‑ ‑
113MS MAGUIRE: He was the driver of the truck and it’s my understanding that Mr Singh paid for the repairs to the truck ‑ ‑ ‑
114HIS HONOUR: I see. All right.
115MS MAGUIRE: ‑ ‑ ‑ as he was driving then.
116HIS HONOUR: Under an arrangement with his employer. Yes, I see, so it should go to him. I’ll sign that order.
117MS MAGUIRE: As the court pleases.
118HIS HONOUR: I don’t know where that – there’s no provision. There’s a compensation/costs template. What’s that got to do with me, I wonder?
119ASSOCIATE: Nothing. Leave that.
120HIS HONOUR: I’ll sign that order.
121ASSOCIATE SPEAKER: Could you sign that one for me?
122HIS HONOUR: I’ve got it here. (Indistinct words). Yes, all right. All right. So that’s all we need to do, isn’t it? I’ll stand down. We’ll turn everybody off now.
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