Director of Public Prosecutions v Hind
[2015] VCC 1794
•9 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-01577
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES HIND |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 November 2015 |
| DATE OF SENTENCE: | 9 December 2015 |
| CASE MAY BE CITED AS: | DPP v Hind |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1794 |
REASONS FOR SENTENCE
---CRIMINAL LAW – Sentence – Plea of guilty to three charges of armed robbery - Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic) – R v Ibbs (1987) 163 CLR 447; R v Verdins [2007] VSCA 102; Hasan v R [2010] VSCA 352; R v Pratt [2003] VSCA 186; R v Bouchard [1996] A Crim R 499
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Lewis | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S. Kenny | Mike Wardell Barrister & Solicitor |
HIS HONOUR:
1James Hind is 27 years of age, having been born on 12 January 1988. He pleaded guilty on 19 November of this year at the Ballarat sittings of this Court. On that day, Mr Lewis appeared on behalf of the Director, and Mr Kenny on behalf of Mr Hind. The Indictment to which he pleaded is No.E11959380. On that Indictment were three charges, all of which Mr Hind pleaded guilty to.
2Each of the charges is of armed robbery, which occurred on 30 March 2015 in the early hours of that day, at the Blue Bell Hotel, which is located at Wendouree. The seriousness of these offences is demonstrated by the fact that a breach of this particular section of the Crimes Act 1958 brings with it a maximum period of imprisonment prescribed by Parliament of 25 years.
3Exhibit A was the prosecution summary, and this was accepted by Mr Kenny on behalf of Mr Hind as an accurate summary of the appropriate facts that this Court can take into account in regard to sentencing.
4As I said, the robbery itself took place at 1am on this date. Mr Hind was disguised with gloves and a balaclava, and entered the premises with a weapon, which was an axe handle. He entered the premises with the co-accused, Mr Kelly, who had a black handgun and was also disguised.
5The aim, of course, was to seek money. Apparently the safe could not be opened. However, Mr Kelly, while Mr Hind stood guard at the entry, got cash from the strongroom and the bar counter. Those moneys were obtained from threats made to Mr Lund, who has made the victim impact statement, Exhibit B.
6If that was not bad enough, Mr Hind decided to take the opportunity to commit what I might call two sub-armed robberies. Firstly, Charge 2, concerned an armed robbery from Mr Yourey, the weapon in this case being the axe handle. Mr Yourey was a member of the hotel security staff at the hotel, and his wallet was extracted from him by the use of such weapon. Equally, a further armed robbery was effected upon another employee of the premises, one Carla Brooker, when a set of gaming keys was removed from her, gaming keys of the gaming operation of the hotel. As I remarked, all for, as far as Mr Hind was concerned, a paltry $200.
7The victim impact statements tendered were firstly of Mr Lund, that is Exhibit B. He talks about the stress that has impacted upon him, and anxiety since this event; the restriction in his capacity to carry out his full or previous work commitments, to the extent that he says on p.5 that he is currently seeing a psychologist to try to come to terms with his fears, and as he calls it the roller coaster of his anxieties.
8Today was tendered a further victim impact statement of the security guard Mr Yourey, Exhibit C. Again, apart from the financial cost of some $100 or so to replace his cards, he talks about the ongoing problems which came upon him some three weeks or so after this armed robbery of nerves and anxiety, which has caused a lot of distress to him. He had had a lot of dislocation, so to speak, by having to reobtain all the various cards and registration and licenses that were in his wallet.
9He says that his life has been quite dramatically impacted. He summarises his life, as was just read to the Court, as essentially being now, "Work, drinking and sleeping". I am not quite certain, because I am not a psychiatrist, why the reaction in this instance has been so extreme, but I suppose this just shows how some people react when placed in such distressing situations.
10I have signed two compensation orders. One to the hotel of $2,500, which has within it a figure of $100 for replacing the keys, and one to Mr Yourey for the cost of replacing his cards, of $100.
11Unfortunately, Mr Hind does not come before the Court for the first occasion. I make the point, he does not come here to be sentenced for any of those matters either. The difficulty of course, when one comes with priors, is that it limits the alternatives the Court has.
12In the years 2013 to 2014, he had convictions for aggravated burglary, burglary, theft, and stealing goods, and previously had been sentenced to a Community Corrections Order in 2010 for burglary; 2008 for recklessly cause injury; and had a driving offence back to 2005. In saying that, it is clear that these are nowhere near as the same league as crimes that Mr Hind has committed on this night.
13Appropriately, what was brought to my attention are not priors, but matters that occurred subsequent to these events, and indeed the matters that led to him being arrested for a series of summary crimes, 36 in total, on 26 May 2015, and for which to the date of hearing he had served by way of remand a period of 164 days.
14He was sentenced for those matters in the Magistrates' Court. Exhibit 2 was tendered as to that sentence, which was effected in the Ballarat Magistrates' Court on 5 November 2015. There were 36 charges. As I say, all of them occurred after this armed robbery. Clearly, and given the make-up of them, burglaries and thefts of cars, they are all drug-related and essentially the types of crime - or a crime spree in fact - that relates unfortunately to the milieu of a person who is drug-affected.
15As a result of that splurge of criminality, the Magistrate determined the appropriate sentence to be three years imprisonment with a non-parole period of two years. The presentence detention of 164 days was taken fully into account in that sentence, so there is no presentence to be taken into account in this sentence. The release date, I am advised, in regard to that sentence is 26 May 2016. As I said, those burglaries and thefts essentially occurred in the Wendouree area, which was the same area where this hotel was located.
16Insofar as the plea was concerned, Mr Kenny was at pains to accept, and did not resile from the fact that the Court is dealing with a serious example of armed robbery. This was emphasised by the learned prosecutor, who stressed that this was an armed robbery committed in company, disguised, with weapons, upon a public facility which was operating at that time with members of the public attending. He stressed the issue that the parties were armed, one with a gun, and Mr Hind with an axe handle; that this armed robbery took place late at night while patrons were in fact at the gambling area of the hotel.
17It is necessary, of course, in any sentencing process to classify the objective seriousness of a crime as detailed out by the High Court in R v Ibbs (1987) 163 CLR 447 [452]. As to the scale of heinousness that relates to armed robbery, it seems to me that this crime must be put on the mid to high level.
18The sentencing, of course, of Mr Hind does not only require an assessment of the objective criminality; it also requires this Court to take into account the personal factors that were put to me by Mr Kenny in the plea. As I said, Mr Kenny had no issue with the fact that this was a crime of some seriousness.
19Equally it was put, and it seems that the subsequent spree of criminality would indicate that this was a drug-induced crime, or a crime committed to obtain money to obtain further drugs. On the information given to the psychologist at the time, Mr Hind indicates that he was taking amphetamines daily, or in fact methamphetamine, ice.
20Mr Kenny said that he had instructions that his client in fact had never seen the gun until he was on the way to the hotel; that at that stage he got cold feet, but was threatened by Mr Kelly and went ahead with the armed robbery. The unfortunate thing with Mr Hind is that, despite such alleged trepidation, even if I accept that, he clearly became more than a willing participant, and as I said on his own volition further participated in two other sub-armed robberies while he was on guard for Mr Kelly.
21Mr Hind is of course, and has to be dealt with, not only by way of the principles of concert, for being a party to Mr Lund being threatened by a gun by Mr Kelly. But of course, also the two sub-armed robberies that he commits himself while on guard at the premises.
22The only discernment I can make from Mr Kelly's role is that Mr Hind did not actually have a gun or handle a gun, or threaten anyone with the gun, albeit that he is equally liable by way of principles of concert. That is, he was clearly a party to such crime, and armed at the same time, and on guard while Mr Kelly carried out the actual armed robbery with Mr Lund.
23I stress, as I said at the plea, the first time I read these depositions, I wondered, can this really be serious, that a person would commit such serious crimes, with such potential impact upon his liberty, for the princely result of $200. It shows, if anything needs to demonstrate, how drug-addled Mr Hind was at the time. Apparently, Mr Kelly dudded him, so to speak, because Mr Hind apparently was unaware of the full amount of the results of the robbery, and simply accepted half of what he understood was the result, which was $400, hence his $200.
24Mr Kenny tendered on Mr Hind's behalf, the report of the psychologist Mr Cunningham dated 15 October 2015, Exhibit 1. Insofar as his background, apparently his father is somewhat detached from him at the moment, being upset about the failures of not only Mr Hind but his brother insofar as drug use is concerned. That seems to me an understandable reaction from a father.
25Clearly, these serious crimes were committed as part of a drug addicts' milieu, a person who was out of control insofar as his life at that time. As was clearly put by Mr Kenny, these matters do not in any way excuse this serious criminality, but explain it.
26Mr Hind has not had great periods of employment, essentially in the building and plastic trade by way of work at a company called Regina Glass, and another company called Danbar Plastics. He has had an ongoing problem with drugs from the age of 15, and more close to these events, as I said, he had been smoking ice apparently every day from the age of 25, and got up to the level of five points a day certainly before going to gaol as a result of the Magistrates' Court sentence. He had not at any stage engaged with drug rehabilitation or detoxification.
27Fortunately, at least for him, given the amount of drugs that he was consuming he has not, to this stage, and hopefully if he gives up drugs will not, suffer any psychotic illnesses. He does have an ongoing post-traumatic stress disorder related to some suicides that he had witnessed of friends. There is no issue of intellectual impairment with him, and as rightly said by Dr Cunningham, as I have already said, Mr Hind's drug abuse contributed to the offence behaviour.
28Fortunately, he has got a grandmother who continues to support him. Despite his father's concerns, he still has family support. He needs psychological intervention in regard to his post-traumatic stress disorder, but most importantly he needs to solve his problem, which has been ongoing in his life for well over 15 years. The real problem he has to solve is that of drugs.
29Mr Kenny stressed that there were no other aggravating factors in this matter, and I accept that. He stressed the plea of guilty; its utilitarian benefit; its indication of remorse. He stressed his client, despite an initial failure to cooperate, did cooperate two days later, and indeed provided a written statement.
30As I say, Mr Hind still has family supporting him, in particular his grandmother, and Mr Kenny, despite acknowledging the seriousness of these matters, asked the Court not to pass a crushing sentence. Mr Kenny submitted that hopefully for the first time, his client intends to seek assistance with issues of drugs while in gaol, and I hope that is so. He submitted the R v Verdins [2007] VSCA 102 principles five and six were enlivened insofar as the post-traumatic stress disorder was concerned, and I accept that. That has some limited impact insofar as meaning that his service of a prison sentence would be somewhat more difficult than other persons.
31Mr Kenny also tendered, Exhibit 3, Sentencing Snapshot 153, which compares the period 2009 through to 2013. The range of sentences given for armed robbery in that period, by way of total effective sentence, varies from three months imprisonment up to 16 years, with a median sentence of three years and eight months imprisonment. The non-parole period again varies from two months through to 13 years, but again with a median of two years.
32As to the use of such, they are, as was pointed out in Hasan v R [2010] VSCA 352, [45], only snapshots. They are of some assistance in the instinctive synthesis that one is involved with. One is particularly assisted in the sentencing process by the further comments made in that case by the Court of Appeal from [45] through to [53], in particular at [54] where they set out that the major sentencing principles in Victoria reside in the Sentencing Act 1991, in particular the matters set out in s.5(2) through to (6).
33The first and most important of those matters is the maximum sentence, which as I have already said is 25 years here. And I already remarked that this reflects not only the Parliament's concern, but the community's concern as to these type of offences.
34There are often references to principles that involve young, drug-addicted persons. Those matters are spoken about in cases such as R v Pratt [2003] VSCA 186 [20], and in R v Bouchard [1996] A Crim R 499 [84].
35Those principles are somewhat difficult to apply in your case, Mr Hind. I have got no doubt, given your drug-addicted crime spree and state at the time that you engaged in subsequently, that at the time of this armed robbery you were equally drug-addled. The problem is, of course, is that you are not a young, first time offender, although you have never committed crimes of this seriousness.
36However, it is still important to take into account that you are still, at 27, relatively young, and your behaviour demonstrates that drugs had dramatically impacted upon your capacity to reason, at this time. Consideration of your age, and a hope by this Court of rehabilitation, provided of course that you rid yourself of drug addiction, is taken into account to ameliorate your sentence.
37However, as I said, such must be balanced against the need for a sentence which reflects the objective seriousness of such offending, and effects the principles of general deterrence, specific deterrence, and in your case, punishment.
38Taking all of those into account, I have determined to sentence you as follows if you would stand up, please.
39On the first charge of armed robbery, a sentence of five years imprisonment.
40On the second and third charges, a sentence of two-and-a-half years imprisonment on each.
41The total effective sentence that I will impose is a period of five years imprisonment. I order that three years of such sentence be served cumulatively with the sentence that the Magistrate imposed upon you on 5 November 2015, making a new aggregate sentence from that date of six years from 5 November 2015.
42Pursuant to the provisions of s.14(1) of the Sentencing Act 1991, I order that the new, single non-parole period which you, Mr Hind, must serve before being eligible for parole, is a period of four years.
43The 164 days pre-sentence detention were taken into account by the Magistrate in total, so there is no figure to be added here.
44MR KENNY: Yes, that's so. I presume Your Honour doesn't have to re-declare it, given the re-setting a non-parole period.
45HIS HONOUR: No, it has already been done by the Magistrate, but I will make it clear in the order.
46MR KENNY: Yes.
47HIS HONOUR: Can I indicate to you Mr Hind in lay language, that means that your total sentence now for all of those matters the Magistrate dealt with you, and for these armed robberies, is a total of six years, and the period that you have got to serve from that date of that sentence of 5 November 2015, before you can get parole, is a period of four years.
48Pursuant to s.6AAA of the Sentencing Act 1991, can I indicate to you that, had you not pleaded guilty, insofar as charges 1, 2 and 3, I would have sentenced you to a period of six-and-a-half years in regard to the first charge, and the others a period of three years and three months each. I am not going to go into the parole period, considering the complications in the circumstances. That is as far as I can comply with Parliament's wish.
49So effectively, that means for you six years in total, for all of those matters including the armed robberies, with four years at the bottom starting 5 November 2015. Yes, so good luck, because if you are going to have a future, you know better than me what you have got to do, all right?
50OFFENDER: Yep.
51HIS HONOUR: All the best.
52OFFENDER: May it please Your Honour.
53HIS HONOUR: Any reason why the prisoner cannot go down?
54MR KENNY: Your Honour, just to clarify your sentence. Charges 2 and 3 are simply concurrent with Charge 1.
55HIS HONOUR: Yes. So the total effective sentence for that sentence is five years.
56MR KENNY: Yes. Thank you, Your Honour.
57HIS HONOUR: Yes, thank you, Mr Hind. I will stand down while we get ready for the next matter.
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