Director of Public Prosecutions v Hills and Ors (Sentence)
[2011] VSC 87
•18 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2009
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS |
| and |
| KAREN HILLS, NKC, BRODIE COOPER AND RAC |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 March 2011 | |
DATE OF SENTENCE: | 18 March 2011 | |
CASE MAY BE CITED AS: | DPP v Hills & Ors (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 87 | |
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CRIMINAL LAW – Sentencing – Aggravated burglary – Kidnapping – Intentionally/Recklessly causing serious injury – Recklessly endanger life/person – Young offenders.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E Ruddle | Office of Public Prosecutions |
| For the Accused Karen Hills | Ms C Randazzo SC with Mr A Brand | Slades & Parsons |
| For the Accused NKC | Mr S Bayles | Robert Stary Lawyers Pty Ltd |
| For the Accused Brodie Cooper | Mr W E Stuart | James Dowsley & Associates |
| For the Accused RAC | Mr I Polak | Dowling McGregor Pty Ltd |
HIS HONOUR:
Karen Hills, NKC, Brodie Cooper and RAC, you have each been found guilty, by the verdicts of the jury on your trial, of a number of offences arising out of your involvement in the kidnap and abduction of Leah Freeman from her home in East Brunswick on 9 December 2008.
At your trial, the prosecution alleged that each of you were present at, and criminally implicated in, those events in company with Craig Hills and Kylie Meulenbrock. Craig Hills, who is the brother of you, Karen Hills, was unfit to stand trial. In April 2010, Kylie Meulenbrock pleaded guilty to two charges arising out of her participation in the events of 9 December 2008. She was sentenced in respect of those offences, and gave evidence at your trial on behalf of the prosecution.
At the trial, each of you denied that you were present at the events described by Leah Freeman in her evidence. By their verdicts, the jury was satisfied, beyond reasonable doubt, that each of you were present at, and criminally implicated in, them. The jury convicted you, Karen Hills, of the following offences: aggravated burglary at 13 Clara Street, East Brunswick; kidnapping Leah Freeman; intentionally causing serious injury to Leah Freeman at East Brunswick; making a threat to kill Leah Freeman at East Brunswick; and reckless conduct endangering the life of Leah Freeman at Keilor.
By their verdicts, the jury convicted you, NKC of the following offences: aggravated burglary at 13 Clara Street, East Brunswick; kidnapping Leah Freeman; recklessly causing serious injury to Leah Freeman at East Brunswick; and reckless conduct endangering the person of Leah Freeman at Keilor.
By their verdicts, the jury convicted you, Brodie Cooper of the following offences: aggravated burglary at 13 Clara Street, East Brunswick; kidnapping Leah Freeman; intentionally causing serious injury to Leah Freeman at East Brunswick; and reckless conduct endangering the life of Leah Freeman at Keilor.
By their verdicts, the jury convicted you, RAC, of the following offences: aggravated burglary at 13 Clara Street, East Brunswick; kidnapping Leah Freeman; and reckless conduct endangering the person of Leah Freeman at Keilor.
At the time of the offences you, Karen Hills were 38 years of age; you, Brodie Cooper, were 18 years old; and you, RAC and NKC, were each 15 years of age. Karen Hills, you are the mother of NKC. Leah Freeman and you had been long time friends. There was evidence of some issues which had arisen between you in more recent times, but nevertheless, both on your account, and on Ms Freeman’s account, there was no overt hostility between you at the time of the offence. You, Brodie Cooper, were then the boyfriend of Kylie Meulenbrock, and you were also a friend and associate of both NKC and RAC.
On the evening of 9 December 2008, the four of you, in company with Craig Hills and Kylie Meulenbrock, drove in two vehicles to East Brunswick. You were accompanied by a third vehicle, which contained two males. There was no evidence at your trial as to the identities of those two persons. The three vehicles parked in Donald Street, around the corner from Ms Freeman’s home at 13 Clara Street. Each of you, together with Craig Hills and Meulenbrock, then walked to Ms Freeman’s house in Clara Street. Craig Hills knocked on the door. Leah Freeman was then home alone. When she opened the door, all six of you forced your way in.
Having made your entry, Craig Hills and you, Karen Hills, each physically assaulted Ms Freeman. You, Karen Hills made a threat to kill Ms Freeman, stating “You’re going to die Leah, do you understand that? You’re going to die today. Do you understand?” Craig Hills then told Leah Freeman that she was to be placed in the boot of his car. A struggle ensued, in which she was overpowered by Craig Hills. With the assistance of you, Brodie Cooper, and you, RAC, and you, NKC, Leah Freeman was forcefully abducted from her home, notwithstanding her protestations and struggles. You, Brodie Cooper, together with Craig Hills, carried Ms Freeman towards Donald Street, and then forced her to walk along Donald Street. She was then placed in the boot of Meulenbrock’s vehicle. Throughout the ordeal, Ms Freeman resisted her abduction, and resisted being forced into the boot of the vehicle. However, she was overpowered, and the boot of the vehicle was closed. At some stage before she was placed in the boot of the vehicle, you, Brodie Cooper punched her to the face.
Pausing there, by its verdict, the jury was satisfied beyond reasonable doubt that Leah Freeman suffered serious injury as a consequence of the assaults inflicted on her during her abduction and kidnap in East Brunswick. The medical evidence disclosed that she suffered multiple bruising and abrasions, particularly to the face and head. In addition, she sustained a mildly displaced fracture of the nasal process of the left maxillary process.
After Ms Freeman was forced into the boot of Meulenbrock’s vehicle, you, Cooper and NKC, together with Meulenbrock, got into that vehicle, with you, Cooper, driving it. You, Karen Hills and you, RAC, together with Craig Hills, got into the other vehicle. You then proceeded to drive to Keilor. You were followed there by the third vehicle.
Before Ms Freeman was abducted from her home, she had the presence of mind to take possession of, and secrete on her person, two mobile telephones. After Meulenbrock’s vehicle set off from East Brunswick, she telephoned her mother, and subsequently made a telephone call to triple 000. The occupants of the vehicle, in which she was being held, heard her using the telephone. She was verbally abused by Meulenbrock for doing so. The boot was opened, and you, Cooper, and you, NKC, took the telephone off her. The cars then continued on their way to Keilor. While they were in transit, Ms Freeman rang another friend, Darren Hanley, and also made a second telephone call to triple 000, on the other telephone which she had with her.
Ultimately, the vehicles, in which you were each travelling, parked in Flora Street, East Keilor, a short distance from the banks of the Maribyrnong River. Ms Freeman was forcefully extracted from the boot of Meulenbrock’s vehicle. The four of you, together with Craig Hills and Meulenbrock, then forced her through bush to the river. En route, she was further assaulted and kicked.
When you reached the banks of the water, Craig Hills threw Leah Freeman into it. Freeman managed to pull Hills in with her. He then struck her, and commenced to dunk Ms Freeman’s head forcefully under water on a number of occasions. She kept forcing herself to the surface, only to be pushed under again. During that terrifying ordeal, you, NKC, Brodie Cooper and RAC, were each standing close to the water, in order to ensure that Leah Freeman would not be able to escape. You, Karen Hills, were standing nearby with Kylie Meulenbrock. While Leah Freeman’s head was being forced under the water, you voiced encouragement to Craig Hills, calling out “Drown the slut” more than once. You, NKC, repeated similar words also.
On the last occasion, on which Craig Hills forced Leah Freeman’s head under water, she had to fight hard to force herself to the surface again. She thought she heard another motor vehicle. At the same time, one of you said “We’ve gotta go”. You, RAC, and you, NKC, helped Craig Hills out of the water. You, Cooper then threatened Leah Freeman, saying that you would find her and “put one” in her, and you also said “I’ll knock your family too”.
After you each departed from the river bank, Leah Freeman struggled up the bank. There she was assisted by two persons, who had parked their vehicle in the car park. She was escorted to a local service station, and from there, she was taken by ambulance to the Sunshine Hospital.
You, Karen Hills and you, NKC, were each arrested on 10 December. In interviews conducted with you by the police on that day, you both denied being present at, or involved in, the events which I have just described. On 19 February 2009, you, RAC were arrested, and in your interview with the police, you also denied being involved in those events. You, Brodie Cooper, were arrested on 27 February. In a short interview with the police, you stated that you did not know anything about those events.
You each persisted with the denial of being present at, and involved in, the events, described by Leah Freeman, at your trial. However, on the evidence presented to it, the jury was satisfied, beyond reasonable doubt, that you were each present at, and criminally implicated in, those events. By their verdicts, the jury was, I consider, satisfied beyond reasonable doubt that you each forcefully entered the premises at Clara Street, East Brunswick. Your conviction for aggravated burglary means that the jury was satisfied beyond reasonable doubt that, at the time at which you made that entry, you each intended that Leah Freeman would be assaulted after you entered the premises. By their verdicts, the jury also was satisfied beyond reasonable doubt that you were each criminally implicated in the kidnap of Leah Freeman. In the case of you, Cooper, I am satisfied, on the evidence, and from the verdict, that you, together with Craig Hills, performed the acts constituting that kidnap. You, Karen Hills, NKC and RAC were each implicated by acting in concert with, and aiding and abetting, Craig Hills and Brodie Cooper in the commission of that offence.
As I have already stated, the jury was satisfied, beyond reasonable doubt, that, as a result of the blow struck to Leah Freeman at East Brunswick, during her removal from the house and being placed in the boot of Meulenbrock’s vehicle, she suffered serious injury. I am satisfied on the evidence that the relevant blows, which caused that injury, were struck by Craig Hills and by you, Brodie Cooper. By its verdict, the jury was satisfied, beyond reasonable doubt, that you, Brodie Cooper intended that the blows struck by you, and Craig Hills, with whom you acted in concert, would cause serious injury to Leah Freeman. By its verdict, the jury was satisfied beyond reasonable doubt that you, Karen Hills, acted in concert with, and/or aided and abetted, Craig Hills and Brodie Cooper in the infliction of those blows, and, in doing so, you intended that Leah Freeman suffer serious injury. The verdicts of the jury also indicate that the jury was satisfied beyond reasonable doubt that you, NKC aided and abetted, and/or acted in concert with, Craig Hills and Cooper in the infliction of those blows, and that, in doing so, you were reckless, in the sense that you knew that the amount of violence being inflicted on Leah Freeman would probably result in her suffering serious injury, although that was not your specific intention. Finally, the jury was not satisfied, beyond reasonable doubt, that you, RAC, were criminally implicated, by acting in concert with, or aiding and abetting, Craig Hills and Cooper, in the infliction of violence on Leah Freeman at East Brunswick, which would have caused her to suffer injury.
At the trial, the prosecution alleged that you each acted in concert with, or aided and abetted, Craig Hills in his attempt to drown Leah Freeman in the waters of the Maribyrnong River at Keilor. You were each charged with, but found not guilty of, the attempted murder of Leah Freeman, arising from those acts. The jury found you, Karen Hills, and you, Brodie Cooper, each guilty of reckless conduct endangering the life of Leah Freeman arising from those acts. The jury was thus satisfied, beyond reasonable doubt, that you each acted in concert with, and/or aided and abetted, Craig Hills, in conduct which endangered Leah Freeman’s life, and that, in doing so, you each acted recklessly, knowing that the actions of Craig Hills would probably create a real and appreciable risk to Leah Freeman of death by drowning. The jury found you, NKC, and you, RAC, each guilty of the lesser alternative charge of reckless conduct endangering the person, arising out of the actions of Craig Hills at the Maribyrnong River. In doing so, the jury was satisfied, beyond reasonable doubt, that you each acted in concert with, and/or aided and abetted, Craig Hills, in actions by which he placed Leah Freeman, at the least, at an appreciable risk of serious injury, and that you each acted recklessly, in that you knew that Craig Hills’ actions would probably create an appreciable risk of serious injury to Leah Freeman.
As I stated, the principal issue at your trial was whether the jury were satisfied that you were each present at and participating in the events described by Leah Freeman in her evidence. By their verdicts, to which I have just referred, the jury clearly followed the direction which I gave them that, if they were satisfied that any of you were present at, and implicated in, those events, the jury must carefully consider the evidence against each of you separately, in order to be satisfied of your guilt of any of the charges brought against you. It is also clear that each of the verdicts of the jury was appropriately based on evidence led against you at the trial.
In reaching conclusions of fact about the role played by each of you in the relevant events, I am required to act in a manner which is consistent of the verdicts of the jury. In doing so, I am mindful that Craig Hills was not present at the trial, and thus he was not in a position to address the evidence as to his participation in the events of the evening in question.
Nevertheless, and with that qualification, it is clear that the principal participants in the offences were Craig Hills, together with you, Karen Hills, and Brodie Cooper. I also accept Mr Stuart’s submission that Craig Hills was the principal decision maker. In opening the case to the jury, the Crown prosecutor, Mr Horgan SC, informed the jury that the motive for the offences had its origins in an incident in which Craig Hills had been stabbed by Beau McMahon, who was then the partner of a niece of Leah Freeman. Thus, it was Craig Hills who had the primary motive for participating in the events which have led to the conviction of each of you.
The evidence of Leah Freeman, as to what occurred at East Brunswick, makes it plain that Craig Hills was, to all intents and purposes, the person who led and directed the events, which occurred in the house. It was Craig Hills who gained entry to it. He demanded of Leah Freeman to tell him where “they” are, presumably referring to persons connected with Beau McMahon. When it became clear that Leah Freeman would not reveal the whereabouts of those persons to him, it was Craig Hills who decided that she should be kidnapped from her home. He assaulted her, and, with you, Brodie Cooper, forcefully removed her from her home.
That recitation of events, summarised from the evidence of Ms Freeman, satisfies me that Craig Hills was, in large measure, the ringleader of each of you. By the same token, you were each willing participants in the events. Thus, when Leah Freeman resisted being removed from her home, you, Karen Hills, assaulted her, and made to her the threat to which I have already referred. You, Brodie Cooper, used your physical strength to assist Craig Hills in removing Leah Freeman. You, NKC, and you, RAC, each provided lesser, but nonetheless willing, assistance to that abduction.
In a similar vein, when Leah Freeman was removed from the boot of Ms Meulenbrock’s vehicle at Keilor, Craig Hills took the lead, telling her what was to happen to her at the river bank. He was the principal actor in the events which occurred at the river, during which Ms Freeman’s head was repeatedly forced under water. At the same time you, Karen Hills, gave strong vocal support to your brother’s actions. You, Brodie Cooper, NKC and RAC stood by, intentionally blocking any escape by Leah Freeman. At the conclusion of the events, you, Brodie Cooper, made a frightening threat of violence to Leah Freeman.
The offences, in respect of which each of you have been convicted, are particularly serious. The maximum sentences for the offences of kidnapping and aggravated burglary are each 25 years’ imprisonment. The circumstances, in which those two offences were committed in this case, are particularly disturbing. At the time of the commission of the offences, Ms Freeman was defenceless and hopelessly outnumbered. Craig Hills was a mature adult, and you, Brodie Cooper, have a large physique. The offence of aggravated burglary involved the violation of the basic right of Leah Freeman to enjoy the security of her own home. The offence of kidnapping is even more serious. It offends against the person’s right to freedom in our society. It is a frightening offence. It is an offence fraught with danger, often resulting in serious physical and psychological harm to the victim. The circumstances, in which Leah Freeman was physically assaulted and bundled into the boot of the car, and driven, for some thirty minutes or so, to the destination at Keilor, were calculated to terrify her. It is not surprising that she has suffered ongoing psychological injury as a result of those events, from which she has not recovered.
The events, which occurred at the Maribyrnong River, are no less serious. You each subjected your victim to the frightening experience of being taken to a secluded location, where she was again outnumbered, brutally manhandled, and forced into the river, where her head was held repeatedly under water. Although the jury acquitted each of you of the charge of attempted murder, it is fully understandable that, at the time, Leah Freeman genuinely thought that she was going to die. By the jury’s verdict, you, Karen Hills, and you, Brodie Cooper, each knew that Craig Hills was probably exposing Leah Freeman to an appreciable risk that she would die by drowning. You, NKC, and you, RAC, each knew that Craig Hills’ actions would probably create an appreciable risk that Leah Freeman would suffer serious injury.
As I have already stated, as a result of the blows struck to Leah Freeman’s face by Craig Hills and by you, Brodie Cooper, at East Brunswick, Leah Freeman suffered a displaced fracture to the left side of her face. You, Karen Hills, and you, Brodie Cooper, were each found guilty of intentionally causing serious injury to Leah Freeman by those blows. The maximum sentence for that offence is 20 years’ imprisonment. Recent decisions of the Court of Appeal have emphasised that the offence is particularly serious. You, NKC, were also criminally implicated in those blows, in that you aided and abetted them, knowing that Leah Freeman would probably suffer serious injury as a result. In addition to the fracture to her cheek bone, Ms Freeman also suffered multiple cuts, bruises and abrasions, and a substantial amount of her hair was ripped from her skull, from which she has not made a full recovery.
Ms Freeman has also suffered a severe psychological reaction, which was diagnosed by her general practitioner as a post traumatic stress disorder. In her victim impact statement, Ms Freeman has set out, in some detail, the psychological and emotional pain and anguish, which she is still suffering as a result of the events, to which you each subjected her. That statement demonstrates that Ms Freeman is still, more than two years later, significantly traumatised by the terrifying events in which you each participated. Her victim impact statement is a suitable reminder of the substantial and long standing harm she has suffered, caused by the actions in which you each involved yourselves.
The conduct of each of you on the night of 9 December 2008 was outrageous and entirely unacceptable, and struck at the fundamental norms of a decent and civilised society. By acting together in a pack of six, you each proved yourselves to be callous and craven cowards. The aggravated burglary, with which the events commenced, was premeditated. While the plans of Craig Hills seemed to change during the evening, nevertheless you each readily attached yourselves to them. By your convictions for the offence of aggravated burglary, the jury were satisfied that you each, at the time you entered into Ms Freeman’s premises in East Brunswick, intended that violence would ensue against the occupant of those premises.
It is necessary for me now to consider the individual circumstances of each of you.
You, Karen Hills, are 40 years of age. You have two brothers. You were raised in reasonably comfortable circumstances. However, your mother has a long standing psychiatric illness. Your parents separated when you were 10 years of age, and your brothers and you resided with your father. You are quite close to your father, although there have been some issues in your relationship with him, which are detailed in the psychologist’s report, which was tendered on your plea. At the time of the offences, you and your youngest child, Kyle, were living with your father in his home in Sunbury.
You were educated to Year 10 level. You then worked in a number of different retail sales jobs. At the age of 19 years, you entered into a relationship with Tony Carnevale, who was a violent heroin addict. He subjected you to a number of assaults. Your relationship with him was tempestuous and unstable. You had two children by him, namely, your eldest son Anthony, who is 21 years of age, and NKC, who is 17 years of age. After your final separation from him, you obtained an intervention order against him.
Subsequently, in 2002, you formed a relationship with Mr Frank Marijancevic. You have one child by that relationship, your son Kyle, who has just turned four years of age. There were also problems in your relationship with Mr Marijancevic, and you have recently separated from him.
One of the marked features of your background concerns your abuse of alcohol and prescription medication. You commenced drinking alcohol when you were 16 years of age. You have told the psychologist, Mr Ball, that you drank “non stop” from the age of 16 to the age of 30. Although you told Mr Ball that you now rarely drink alcohol, that claim is contradicted by your criminal history sheet, to which I shall refer in due course. It would seem, from your background, that your consumption of alcohol has caused you, time and again, to get into trouble. In that context, I note that there was some suggestion, in the evidence in this case, that, when you arrived at Leah Freeman’s house, you were drinking alcohol.
In addition, you have become addicted to Valium. Since about the age of 30, you have been prone to “seizures”. Investigations revealed that the seizures are not due to any epileptic condition suffered by you. Rather, it would seem that they are related to an underlying anxiety or stress condition. For approximately ten years, you have been taking Valium to treat that condition. At your plea, Ms Randazzo SC, who appeared on your behalf with Mr Brand, told me that, since your incarceration following your conviction, you have been able to be weaned off that medication.
In addition, in October 2004 you were involved in an incident, as a consequence of which you sustained a comminuted fracture of the tibia and fibula of your right leg near the ankle joint. As a result, a plate and screw were inserted into your leg, to immobilise the fracture. The report of Mr Brearley, dated November 2008, indicates that the fractures have reunited satisfactorily, and that you have good alignment of the leg. However, you have some swelling of your lower leg, and some marked wasting of your right calf muscle, and you continue to complain of pain. Initially, you took Oxycontin as an analgesic, but your levels of pain are now treated with Panadol. Mr Brearley, in 2008, considered that the degree of impairment of your right lower limb was such that you would then qualify for a serious injury assessment under the Wrongs Act.
You have admitted to previous convictions, arising from some twenty separate court appearances over the period of twenty years before your offending. Six of those court appearances were for offences involving dishonesty. The balance were mainly for motor vehicle offences, and what might be described as street offences. One offence involved the cultivation, possession and use of cannabis. It would seem that a significant part of your past offending has been connected with your abuse of alcohol. It is, however, noteworthy that none of your previous offending involved you in the commission of any crime of violence. Further, you had not been previously sentenced to a term of immediate incarceration, although you have, on four separate occasions, been sentenced to separate terms of imprisonment each of which had been suspended, and you have also twice received intensive correction orders.
Mr Ball, the psychologist, examined you in September 2009. Mr Ball formed the conclusion that you meet the diagnostic criteria for a borderline personality disorder, co-morbid with substance (alcohol and benzodiazepine) dependence. He was of the view that that disorder had its origins in your disrupted childhood, and in the abuse, which you have suffered at the hands of your partners. As a result of your need to avoid abandonment, you have led a chaotic lifestyle, characterised by repeated crises. He considered that you have limited insight into your offending behaviour, and into your psychological functioning. It is clear, from the report of Mr Ball, that you would benefit from counselling to enable you to better understand your past, and to develop improved strategies for coping with your current circumstances.
The matters by way of background, to which I have just referred, are relevant for a number of reasons. Although they do not significantly mitigate your involvement in the offences, nevertheless they give some explanation as to how you came to be involved in them, and they also provide some understanding of your repeated offending over the last 20 years.
On the other hand, as I have already stated, it is clear that you were one of the three principal actors in the events, which have led to your conviction. In that respect, it does you no credit that you and your brother involved your son NKC, who had then just turned 15 years of age, in the serious offences committed by you on that evening. Nor, it would seem, did you give any worthwhile consideration as to what might become of your infant son Kyle, then two years of age, in the event that you were implicated in those offences.
On the other hand, I do take into account the fact that you have no previous record for any violent offending. I accept that a term of imprisonment will be somewhat harsh on you for a number of reasons. You will be separated for some time from Kyle. I have no doubt that you will feel the pain of that separation, and that that pain will be exacerbated by your knowledge that Kyle, too, will be missing you. Your injured leg still troubles you from time to time, and thus your term of imprisonment may, from a physical point of view, be more difficult. In addition, you have a number of psychological issues, with which you need to grapple. It is important that you take the opportunity, during your term of imprisonment, to undergo appropriate counselling and behavioural therapies, in order to address your long standing problems. The report of Mr Ball persuades me that, if you were prepared to undertake those therapies, then ultimately you might be successfully rehabilitated.
It is convenient if I turn next to you, Brodie Cooper. As I have already remarked, the offences, for which you are now convicted, are particularly serious. Further, as I have concluded, you were one of the three principal actors in the incidents of 9 December 2008, which led to your conviction. You have admitted previous convictions arising out of three separate court appearances. Each of those convictions involved the commission by you of a crime of violence. You have two previous convictions for the offence of causing injury recklessly, two previous convictions for reckless conduct endangering serious injury, and convictions for unlawful assault, firearm offences, and assault with a weapon. The first recorded conviction arose out of an appearance by you at the Children’s Court in February 2008, when you were then 17 years of age. In the absence of any mitigating circumstances, your involvement in the present offences, and your previous convictions, would necessitate that I impose a long period of imprisonment on you. This is particularly so, given that you have not learnt the lesson from your previous three convictions, namely, that the courts will not tolerate the commission of violent and like offences, and that such offending will be met with stern punishment.
On the other hand, there are a number of matters, which have been outlined to me on your plea by your counsel, Mr Stuart, and which establish that there are important mitigating factors in your case. You are a young offender, having recently turned 20 years of age. The law takes into account the fact that young persons are prone to making bad judgments, and to acting immaturely, especially in the company of others. In addition, the law regard the rehabilitation of a young offender as an important, if not the primary, objective of sentencing. It is not only in the interests of the offender but, more importantly, the interests of the community, that a young offender undergo reform and rehabilitation, so as to prevent a repetition of the wrongdoing, for which the offender is sentenced.
More significant in your case is the fact that your history reveals that you have been subject to appalling deprivation and disadvantage from your earliest infancy. Your background history has been set out in some detail in the psychological reports tendered on your plea, in testimonials by your aunt Mrs Karen Cogswell, your sister Amber, your fiancé Rebecca Gatt and her mother, Trinette Eberle. In addition, Mrs Cogswell gave evidence on your behalf on your plea. Mrs Cogswell was a particularly impressive witness. She displayed a measured and profound understanding of your background difficulties, and she has clearly been one of the few positive influences you have had in your life.
You were born in Altona in November 1990. You have an older sister, Ashleigh, and a younger sister, Amber. Each of you had different fathers. Your own father was a drug addict, and he has had very little contact with you. Throughout your life, and before it, your mother has been a drug addict also. She abused illicit substances during the period in which she was pregnant with you. From your earliest infancy, your mother’s lifestyle has been solely directed, if not dedicated, to the pursuit and use of illegal drugs. In a thorough and helpful testimonial, your sister, Amber, summed up your childhood thus:
“As kids we seen a lot of things that no child should see, and were left in places no children should be. Unfortunately we were not first priority to our mother, her drugs were.”
During your childhood and early teen years, you lived at a number of addresses. Your mother was prone to changing residences frequently, principally as a result of the lifestyle to which she was addicted. She kept company with heavy drug users, particularly males. Those persons came and went at the homes, at which you resided, at any hour of the day or night. Violence, particularly directed towards your mother, was a common, if not daily, feature of your childhood.
In that setting, your proper upbringing was almost entirely neglected by your mother. On a number of occasions, you and your sisters were required to sleep on the floor in the accommodation which your mother had moved to. In your interview with the psychologist, you estimated that you attended nine different primary schools, because of the lack of any stability in your home life.
At one stage, when you were about six years of age, your sisters and you lived for a short time with your maternal grandparents. Your grandparents did their best for you. However, your mother also lived with them at that time, and it would appear that by doing so she disrupted the ability of your grandparents to provide any meaningful stability or parenting to you. After a few short months, your mother, of her own accord, removed your sisters and you from your grandparents’ home, and resumed the lifestyle, which I have just described. Later, in your early teenage years, you were living in Williamstown. Your aunt, Mrs Cogswell, stated that at that period of your life, you were doing quite well. However, without any regard for your wellbeing, your mother decided to move back to Deer Park.
Approximately one decade ago, your mother commenced a relationship with a man called Sonny. He had recently been released from prison. Sonny was a heavy drinker, and a heavy amphetamine abuser. He was particularly violent to your mother, and also to you and your sisters. There were constant angry arguments between your mother and Sonny. In the course of that relationship, your mother had three further children, a son Michael, a daughter Sharryn, and a younger son Jett, who suffers from Down’s Syndrome. Despite the chaotic lifestyle, to which you were subjected, throughout your childhood you attempted to play a supportive role to your sisters and to your younger brothers.
Ultimately, and indeed inevitably, your family has fallen apart. Ashleigh was the first to leave home. At the age of 14 years, you also left home. At the end of 2009, your mother, almost without warning, left Victoria with the three youngest children, and she has been living in Darwin since. She has had little or no contact with you since then.
What I have stated so far is but a short summary of the dysfunctional upbringing, to which you were subjected. Your aunt, who is the sister of your father, has attempted to do her best for you. However, in her evidence, she described how your mother constantly undermined her beneficial efforts in your regard. At one stage you were involved in Little Athletics, and you are in fact a talented athlete. However, your mother did nothing to support your involvement in that positive activity, and, it would seem, that unfortunately you have not participated in it for some years.
At about the age of 14 years, you met your present fiancé, Rebecca Gatt. For some time you have lived with Rebecca and her family. The testimonials from Rebecca and her mother, Mrs Trinette Eberle, confirm the matters to which I have already referred. They also describe some positive features of your character, including your capacity to relate with your fiancé’s family, and your love of your two year old daughter, Faith.
You have a long standing history of alcohol abuse. You began consuming alcohol at the very early age of 9 or 10 years, and you began drinking regularly at the age of 14 years. From the description of your habit given to the psychologists, you are not an addictive or habitual drinker. Rather, you are a heavy binge drinker, which might explain why your aunt expressed some surprise when learning of your problem, and she stated that she in fact has never seen you drinking alcohol. To your credit, you have never used illicit drugs.
Your formal education has been severely disrupted. You were ultimately expelled from high school during Year 8. You have significant deficits in your basic learning skills of reading, writing and numeracy. Those deficits are partly due to your disrupted education. In addition, you also suffer from learning and intellectual difficulties. Upon neuropsychological testing, your IQ score was 82. The testing found you had a number of deficits, particularly involving difficulties with processing information at speed, attention and concentration, memory and learning. In addition, you have what is described as executive dysfunction.
In his conclusion, Dr Popp, the neuropsychologist, states that, because of your intellectual limitations, and in light of your history of alcohol abuse, you are likely to make increasingly poor decisions, and become more impulsive, even at low levels of alcohol consumption. Mr Simmons, the psychologist, has also noted that you are prone to regarding the actions and conduct by other people as slights against you, to which you respond with aggression. You have a limited capacity to make a sensible judgment as to people, and your idea of being a male revolves around significant levels of aggression.
In that context, it is clear that a systematic effort must be undertaken to address your underlying issues, in order that you be rehabilitated into society upon the completion of the term of imprisonment, which I am to impose upon you. I was informed, on your plea, that you have not had the benefit of any psychotherapy or counselling. It is clear from the psychological reports tendered on your plea, and also from the matters of background related to me, that you are in pressing need of appropriate counselling and therapy, directed to your aggression and anger management issues, and to your abuse of alcohol. In addition, your areas of cognitive dysfunction need to be addressed in the manner referred to by Dr Popp, the neuropsychologist, at the conclusion of his report. Finally, your educational deficits should be addressed, and you should receive some occupational training, which will enable you to gain useful employment upon re-entering society.
As I stated, your offending in this case is serious, even more so in light of your previous convictions. However, I do take into account the matters, to which I have just referred. Although you were a major actor in the events, for which you are now convicted, it is relevant that the ringleader was a man who was more than twice your age. While that fact does not excuse your wrongdoing, nevertheless, it is relevant that you were under the influence of an adult of significantly more mature years than yourself. You were young at the time of the offending, and you are still young. As I have already explained, that factor is relevant, both to explain the impulsivity and poor judgment exhibited by you on the night in question, and also to questions relating to your rehabilitation. The fact that you do not come from a privileged background, but, by stark contrast, have suffered an extraordinarily deprived and disadvantaged childhood, lends force to Mr Stuart’s submission that your rehabilitation should be given particular weight in your case. Finally, I also take into account the positive character traits, which were referred to by your aunt in her evidence, and which have been adverted to by Mrs Eberle and Rebecca Gatt in their testimonials.
In the conclusion to his report, Mr Simmons has noted that it is likely that, while you are in prison, you will develop a degree of institutionalisation, and you will lose the few skills with which you are equipped. Accordingly, he has suggested that I give consideration to making an order, which would allow for a longer potential parole period than would otherwise be the case. That recommendation was supported by Mr Stuart in his plea to me.
As I stated, I consider that your rehabilitation is long overdue, and highly necessary, in order to prevent society suffering from any more re-offending by you. I also consider that, in your case, a longer than usual parole period would be justified, because of the few opportunities which life has hitherto offered to you. It will, of course, be a matter for the Parole Board whether you are granted parole at the conclusion of your minimum term. As you are well aware, you will need to earn parole. Further, it will be a matter for you whether you properly take advantage of any parole period offered to you, or whether you revert to your previous offending, which will inevitably lead to further and longer periods of incarceration for you.
I turn, next, to the personal circumstances relating to you, NKC. You are now 17 years of age. At the time of the offending, you had just celebrated your 15th birthday. You do not have any previous convictions.
Your personal background is set out in the pre-sentence report, which was provided to the court. I have already touched on your background, when detailing the circumstances of your mother. As I noted, you are the second son of Karen Hills and Tony Carnevale. They had a troubled relationship, and, after their separation, you remained in your mother’s care. For a number of years, you lived with your mother and her father, your grandfather. As I have already noted, your mother has experienced ongoing problems with the abuse of alcohol over a long period of time. Your mother has also had a difficult relationship with her second partner, Frank Marijancevic, and, as I have stated, she has now separated from him.
It would appear that you came to the attention of the Child Protection authorities from quite an early age. The file notes, which are referred to in the pre-sentence report, indicate that the principal concerns at the time related to domestic violence, your mother’s mental health issues, and her lack of adequate parenting skills. The Child Protection authorities had difficulty rendering appropriate assistance to you, because of the lack of cooperation of your grandfather, your mother and yourself.
At one stage, in about 2006, you commenced living in Sunbury with your grandfather, your uncle (Craig Hills) and your mother. Subsequently, at the beginning of last year, you commenced to reside with your father’s mother (your grandmother) and her family.
Your own father had a long standing heroin problem, and last year he died because of a drug overdose. Understandably, your father’s death came as quite a shock to you, and I have no doubt that you suffered emotionally as a result of it.
You have a limited education, having been expelled from school during Year 8. Since leaving school, you have had little by way of gainful employment. For some time, you have been acting as a carer for your uncle, Craig Hills, who has experienced a series of health issues over the last four years.
Following your conviction in December last year, you have been remanded at the Melbourne Youth Justice Centre. According to the pre-sentence report, your unit coordinator has stated that you have maintained positive behaviour during your period of detention, and you have not been involved in any incidents. You have participated in a number of programs including music, art, information technology, radio, general education and gymnasium.
It is a matter of concern that you have little by way of education, and that you have no apparent employment skills. It is important that, during the balance of the period of the sentence, which I am to impose upon you, you receive appropriate counselling, and that your lack of appropriate employment skills be addressed. Your involvement in the offending in this case, and indeed your behaviour in court during the lengthy trial, indicate to me that you are an impressionable and immature person, who is easily led. It is important that counselling equip you with the personal skills, which are necessary to enable you to avoid future conflict with the law.
In this respect, it has been drawn to my attention that you have some convictions, which are subsequent to your offending in this case. I do not take those matters into account, as matters adverse to your sentence. However, they are relevant, because they demonstrate that, unless you take stock of yourself, and learn not to follow the bad example of others, you will continue to land yourself in considerable trouble with the law. As a result of your offending in the present case, you stand convicted for some of the most serious offences known to our law. It would be hoped that your conviction of those offences, and the sentence which you are to undergo, will teach you a sharp lesson as to the painful consequences which will inevitably follow, unless you learn to think independently for yourself, and set yourself positive goals for your life in the community.
I do accept that there are a number of mitigating circumstances in your case. First, I take into account your particularly young age at the time of the offending. In that context, it is significant that you offended in the presence of two adults, who were more than twice your age. It is even more significant that one of those adults was your own mother, and the other was your uncle. While you were foolish to follow their leadership, nevertheless the inescapable fact is that you were under the influence of two mature aged persons, to whom you are closely related. I further take into account the fact that your offending, and indeed the offending of your co-accused RAC, was at a substantially lower level than the offending of Craig Hills, Karen Hills and Brodie Cooper. The evidence at the trial, reflected in the jury’s verdicts, indicated that you played a significantly lesser role in the offending on the night in question than did those three co-offenders. In addition, I take into account the fact that you have not been involved in any subsequent offending, since the night of 9 December 2008. The subsequent convictions, which have been brought to my attention, related to offences committed by you prior to that date. Your ability to remain out of trouble from the age of 15 until your present age (17 years) is a positive factor pointing to your rehabilitation. Finally, I agree with Mr Bayles that the delay in your disposition, of over two years, is a relevant mitigating circumstance in the case.
In the course of the plea made on your behalf, Mr Bayles submitted that the normal sentencing considerations of general deterrence and denunciation are not relevant to your case. He suggested that the provisions of the Act of Parliament, to which you are subject, preclude those factors from having any operation. In a separate ruling, which I shall deliver at the conclusion of the sentence, I reject that submission. The offending, in which you had become involved, is particularly serious. It is necessary that I impose a sentence, which is not only a lesson to you, but which, hopefully, might discourage like minded individuals from indulging in the same type of violent and outrageous conduct. It is also important, in the interests of the community, that the sentence imposed upon you properly reflects your level of wrongdoing, and thus expresses the condemnation by the community, and this Court, of your unacceptable conduct.
On the other hand, I do accept that, in light of your young years, it is important that substantial weight be given to your rehabilitation. In my view, that consideration should operate to significantly reduce the sentence, which I would otherwise impose on a person who was of more mature years. As I have already noted, it is not only in your interest, but in the community’s interest, that I impose a sentence, which will maximise the opportunities for you to be rehabilitated into the community as a law abiding and worthwhile citizen of this country. The sentence, which I shall impose on you, will be calculated by reference primarily to the need for your adequate rehabilitation. However, I do not consider that such a goal can be properly achieved by imposing on you a supervision order, as contended for by Mr Bayles. To impose such a sentence would, in my view, fail to teach you adequately the seriousness of the offences, in which you were a willing participant. Further, it would fail to properly reflect the seriousness of your wrongdoing, and it would fail to act as a deterrent to other persons, who are minded to act in the manner in which you did on the evening of 9 December 2008.
I turn, finally, to the circumstances of you, RAC.
You are also 17 years of age, and, at the time of the offending, you were 15 years of age. You have a number of previous convictions, arising out of three court appearances. They include convictions for burglary, robbery, recklessly causing serious injury, and intentionally damaging property. In May 2008, you were placed on probation for a period of six months by the Sunshine Children’s Court, in respect of a number of offences committed by you. On 10 November 2008, you received a further period of probation for twelve months for offences involving recklessly causing serious injury and robbery. Two weeks later, on 24 November 2008, you received a further period of probation for twelve months in respect of further offending. It is significant that your involvement in the offences in this case occurred less than one month after you had thus been placed on probation on two separate occasions. You failed to take advantage of the leniency offered to you by the court to assist in your rehabilitation, but, rather, it would appear, you treated each of those sentences with contempt.
You are the eldest of three brothers. You also have three other half-siblings. Your earlier years were quite happy, and you were involved in a number of normal activities with your parents and your siblings. However, when you were 13 years of age, your parents’ relationship broke down, and they separated. Your father moved out from home. As time went by, you saw increasingly less of your father. In the meantime, you began to have problems at school. You told Dr List, the clinical psychologist who has provided a report relating to you, that you commenced to associate with the wrong type of people. At the same time, you started drinking alcohol. You began to get into trouble at school, and were suspended from it on a number of occasions. Eventually, you were expelled from Deer Park Secondary College. You then engaged in the Oasis Program in Sunshine. However, your involvement in that program was unsatisfactory. In 2009, you undertook an apprenticeship in carpentry at a TAFE College. You have also performed some plastering work with Simon Diacono Plastering. Mr Diacono has provided a testimonial on your behalf. He describes you as a reliable and honest person, and states that he intended to employ you permanently, if you had been acquitted of the offences for which you are to be sentenced.
Unfortunately, your employment with Diacono Plastering has been interrupted, because of your involvement in further offending since the date of the offences, for which I am to sentence you. In July 2009, you were convicted of a number of offences in the Melbourne Children’s Court. As a result, your probation order of 24 November 2008 was breached. You were sentenced to be detained in a youth justice centre for a period of nine months. You were released on parole on 1 October 2009. Subsequently, on 16 September 2010, you were released on a 12 month youth supervision order in respect of a number of offences committed by you, including eight charges of burglary.
I do not take into account the subsequent convictions, to which I have just referred, as matters adverse to you in relation to your sentence. However, they demonstrate that, over the last two years, you have repeatedly involved yourself in criminal conduct, which can only lead to you spending lengthy periods of time in custody, unless you take immediate and positive steps to reform. On a positive note, I observe that the pre-sentence report, in relation to you, indicates that, since you have been remanded in Melbourne Youth Justice Centre since 13 December 2010, you have been doing well and you continue to engage and cooperate with the staff at the unit.
During recent times, you have had to deal with some personal tragedy. In May 2009, while you were on remand for the present offences, your father committed suicide. The pre-sentence report notes that, understandably, that was a very difficult and highly emotional time for you and your family.
I also note that your family are very close to you, and are supportive of you. Your mother was present throughout the lengthy trial. Your uncle and cousin gave evidence on your behalf. Your family regularly visits you at the Melbourne Youth Justice Centre, and you have daily contact with your mother and siblings. The support, provided to you by your family, should assist you in your rehabilitation, upon completion of your sentence in this matter. On the other hand, it is noteworthy that, notwithstanding that support, you have persistently offended in recent years. You are fortunate to have the support of your family. I have no doubt that your current predicament is a cause of great grief and anxiety to them. You should be properly motivated to rehabilitate yourself, not only for your own sake, but in order to spare your mother and your family from any further pain as a result of your wrongdoing. In that respect, I also note that you are fortunate to have the support of Mr Diacono. Again, it is for you to take advantage of the opportunity, which he is offering to you, to enable you to participate in the community in a useful and productive manner.
As I stated, the offences for which you have been convicted, and for which you are to be sentenced, are serious. I accept that you, like NKC, played a significantly lesser role in your involvement in those offences than the other co-offenders. The jury was satisfied, beyond reasonable doubt, that, at the time that you entered Leah Freeman’s house, you intended that the occupant of the premises would be assaulted. However, the jury was not satisfied, beyond reasonable doubt, that you were criminally implicated in any of the violence, which caused her to suffer injury. The verdicts of the jury reflected the evidence that, throughout the incident, you played quite a minor role.
I also take into account, as a mitigating circumstance, your youth, at the time of offending, and at the time of sentence. Your young years are relevant to determining the level of your culpability in the offending, and because of the weight which must be given to the issue of rehabilitation in respect of a person of your young years. In addition, I agree with the submission of your counsel, Mr Polak, that the delay between your commission of the offences, and your sentence, is relevant. This is particularly so, because you were discharged from the offences at the committal proceeding in August 2009, and subsequently were directly presented on the same charge in April 2010.
In sentencing each of the four of you, it is necessary for me to impose a sentence, which will adequately act as a specific deterrent to you committing similar crimes in the future. It is also necessary that the sentence sufficiently reflects the seriousness of the crimes which you have each committed, and that it acts as a deterrent to other like minded individuals from participating in similar offences. In determining your individual sentences, I take into account, on the one hand, the seriousness of the offending for which you have each been convicted, and, on the other hand, the mitigating circumstances to which I have referred.
You have each been convicted of more than one offence. In determining your total effective sentences, it is necessary for me to allow for substantial concurrency of your sentences on the individual counts, for which you are to be sentenced, otherwise your total sentences would be excessive and unjust. Accordingly, the principle of totality requires me to provide for substantial concurrency of your sentences on those counts.
In determining the sentences to be imposed upon each of you, it is important that I be mindful, so far as possible, of the issues of parity of sentencing between co-offenders. However, in this case, as I have already observed, I am satisfied that the roles of you, NKC and RAC, were significantly less than the roles played by you, Karen Hills and Brodie Cooper. I am satisfied that you, Karen Hills and Brodie Cooper, were each involved, broadly, to the same extent in the offending for which you have been convicted. However, the sentences to be imposed upon each of you will reflect the difference in ages between you, and will also take into account the significant mitigating factors attaching to Brodie Cooper’s background circumstances. In determining the sentences of you, NKC and RAC, I take into account not only that you each played significantly lesser roles in the offending for which you are convicted, but also that you were only 15 years of age at the time of the offending, and are now each only 17 years of age. By the verdicts of the jury, you NKC, were more involved in the offending than RAC, in that you have been convicted as being criminally implicated in the violence which caused physical injury to Leah Freeman at East Brunswick. On the other hand, you do not have any previous convictions, while RAC has previous convictions, to which I have referred. Those considerations lead me to the conclusion that you should each receive the same total effective sentence.
Taking those matters into account, I sentence you each as follows.
I sentence you, Karen Hills, as follows:
(a)On count 1 (aggravated burglary) I sentence you to 2 years and 6 months’ imprisonment.
(b)On count 2 (kidnapping) I sentence you to 6 years’ imprisonment.
(c)On count 3 (intentionally causing serious injury), I sentence you to 3 years’ imprisonment.
(d)On count 5 (making a threat to kill) I sentence you to 6 months’ imprisonment.
(e)On count 7 (reckless conduct endangering the life of Leah Freeman) I sentence you to 4 years’ imprisonment.
I direct that 6 months on count 3 and 18 months on count 7 each be served cumulatively upon the sentence on Count 2 and upon each other. The effect of that cumulation is to make a total effective sentence of 8 years’ imprisonment. I direct that you serve a minimum of 5 years’ imprisonment before you become eligible for parole.
In order to avoid any issue relating to the orders for cumulation, which I have just made, I note that, by reason of your conviction on count 3, you are a serious offender for the purposes of your conviction on count 5. Pursuant to s 6E of the Sentencing Act, I direct that your term of imprisonment on count 5 is to be served concurrently with your term of imprisonment on count 3. Pursuant to s 6F(1), I shall cause to be noted in the records of the court that you were sentenced in respect of count 5 as a serious offender.
Pursuant to s 18(4) of the Sentencing Act, I declare that the period of 117 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the court that that declaration was made.
NKC. I sentence you as follows:
(a)On count 1 (aggravated burglary) I sentence you to 18 months’ detention in a youth justice centre.
(b)On count 2 (kidnapping) I sentence you to 2 years and 6 months’ detention in a youth justice centre.
(c)On count 4 (recklessly causing serious injury) I sentence you to 12 months’ detention in a youth justice centre.
(d)On the alternative count to count 7 (recklessly endangering the person of Leah Freeman) I sentence you to 18 months’ detention in a youth justice centre.
I direct that 6 months on the alternative count to count 7 is to be served cumulatively with the sentence on count 2. Thus your total effective sentence shall be 3 years’ detention in a youth justice centre.
Pursuant to s 18(4) of the Sentencing Act, I declare that the period of 96 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the court that that declaration was made.
Brodie Cooper. I sentence you as follows.
(a)On count 1 (aggravated burglary) I sentence you to 2 years and 6 months’ imprisonment.
(b)On count 2 (kidnapping) I sentence you to 5 years’ imprisonment.
(c)On count 3 (intentionally causing serious injury) I sentence you to 3 years’ imprisonment.
(d)On count 7 (reckless conduct endangering the life of Leah Freeman) I sentence you to 3 years’ imprisonment.
I direct that 6 months of the sentence on Count 3 and 6 months of the sentence on Count 7 each be served cumulatively with the sentence on Count 2 and on each other. Thus your total effective sentence shall be 6 years’ imprisonment. I direct that you serve a minimum of 3 years’ imprisonment before you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act, I declare that the period of 333 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the court that that declaration was made.
RAC. I sentence you as follows:
(a)On count 1 (aggravated burglary) I sentence you to 18 months’ detention in a youth justice centre.
(b)On count 2 (kidnapping) I sentence you to 2 years and 6 months’ detention in a youth justice centre.
(c)On the alternative count of reckless conduct endangering the person of Leah Freeman, I sentence you to 18 months’ detention in a youth justice centre.
I direct that 6 months on the alternative count (reckless conduct endangering the person) be served cumulatively with the sentence on count 2. Thus your total effective sentence will be 3 years’ detention in a youth justice centre.
Pursuant to s 18(4) of the Sentencing Act, I declare that the period of 188 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the court that that declaration was made.
Finally, a number of materials were tendered on the plea of each of you which, I consider, will be relevant to the proper disposition of each of you in custody, and which will also be relevant for the purposes of the Parole Board. I shall therefore direct that there be sent to the Director-General of Corrections, and to the relevant Parole Board in each case, a copy of my sentencing remarks, together with: in the case of Karen Hills, a copy of the reports of Mr Ball and Mr Brearley; in the case of NKC, the report of Dr Cunningham; in the case of Brodie Cooper, the psychological report of Warren Simmons dated 9 February 2011 and the neuropsychological report of Dr Popp dated 6 March 2011; and, in the case of RAC, the report of Dr List.
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