Director of Public Prosecutions v Hodder
[2023] VCC 856
•25 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01938 & CR-20-00072
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON HODDER |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2023 | |
DATE OF SENTENCE: | 25 May 2023 | |
CASE MAY BE CITED AS: | DPP V HODDER | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 856 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Aggravated Burglary; Attempted Armed Robbery; Common Law Assault; Committing an indictable offence whilst on bail; Carjacking; Contravening Community Correction order
Legislation Cited: Crimes Act 1954: Sentencing Act 1991; Disability Act 1986
Cases Cited:Bugmy V R (2013) 302 ALR 192
Sentence: Contravention proven; CCO cancelled and resentenced; Convicted and sentenced to 20 months imprisonment with 486 days reckoned as served; Convicted and sentenced to 14 days imprisonment on contravention of CCO to be served concurrently; Convicted and sentenced to 3 years and 6 months imprisonment with 331 days reckoned as served on indictment N10987466; 6 months of cumulation is imposed on indictment N10987466; Total effective sentence is 4 years with a non-parole period of 2 years fixed across all matters.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. O'Halloran | Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Haines and Polites |
HER HONOUR:
1Shannon Hodder, you have pleaded guilty on Indictment N10987466 to charges of Aggravated Burglary, Attempt to Commit an Indictable Offence (Armed Robbery) and Common Law Assault.
2You have also pleaded guilty to a related summary offence of committing an indictable offence (aggravated burglary) whilst on bail.
3This offending all took place on 9 April 2022.
4
On 11 December 2020 you were convicted and sentenced by me to 486 days imprisonment in combination with a community correction order of 2 years duration for a single charge of carjacking. At the time of your offending on 9 April 2022 you were subject to this community correction order. You are charged with contravening that order. You admit breaching the corrections order by both
non-compliance with imposed conditions and by way of further offending. Those proceedings are also before me.
5In sentencing you for your crimes, I am obliged to have regard to the maximum penalty for the offences you have committed. Those maximum penalties are:
(a) Aggravated Burglary – 25 years imprisonment;
(b) Attempted Armed Robbery – 20 years imprisonment;
(c) Common Law Assault – 5 years imprisonment;
(d) Committing an indictable offence whilst on bail – 3 months imprisonment.
(e) Carjacking – 15 years imprisonment; and
(f) Contravening Community Correction order – 3 months imprisonment
6Those maximum penalties reflect the seriousness with which Parliament regards each offence.
Personal circumstances
7You are presently aged 21 years.
8You are the youngest of two children from the union of your parents, Cindy and Albert. You have five older half-siblings from your parents' previous relationships.
9You were initially raised in the suburb of Hampton. In the past you have maintained a positive relationship with your older brother, Ashley.
10You experienced considerable difficulty in your childhood. There were some 22 notifications to child protection, the first occurring within a week of your birth. The family circumstances include parental substance abuse and considerable family violence.
11You were placed into foster care at 11 years of age and were fortunate to experience a short period of relative stability. You were returned to your family home when aged around 13 years.
12Your education is extremely limited. You were bullied at school and were also involved in aggressive behaviour. Whilst briefly returning to your education when 15 years of age, you effectively left formal education in Year 7 after being expelled.
13You were unfortunate to be involved in a number of serious accidents which included being hit by a four-wheel drive vehicle when about seven years of age.
14Your father died when you were aged 15 years from emphysema and heart failure. For some reason you hold yourself responsible.
15In your youth, you gravitated towards older antisocial peers, demonstrating high risk behaviours which included absconding and drug use. You have used cannabis from the age of 11 years and have used methamphetamine and prescription medication. You spent time moving between the family home, secure welfare placements and youth detention.
16You are prone to self-harm when distressed.
17Your counsel seeks to rely on what is referred to as the Bugmy principles. Without turning to the dire personal circumstances and upbringing of Mr Bugmy, which was an environment of extreme dysfunction and disadvantage, the High Court in [Bugmy] made a number of significant findings which include:
(a) A person's background of social disadvantage may mitigate sentence.
(b) The effect of a person's background of social disadvantage may vary but it does not diminish over time.
(c) The impact on an individual sentence of a person's history of social disadvantage can and should vary as the weight to be afforded social disadvantage requires individual assessment.
18Whilst self-reported, I have no reason to challenge your background as described.
19A report tendered on your behalf authored by Dr Matthew Treeby, neuropsychologist, reports that
'It is likely that exposure to adverse early childhood experiences (i.e. complex trauma) compromised Mr Hodder's social, emotional, moral, and cognitive development during his formative years.'
20I accept the Bugmy principles have some application to your circumstance.
Prior criminal history
21You have an extensive and relevant history of appearances before the Children's Court dating back to 2016.
22Whilst not detailing each appearance, on 23 March 2017 you appeared at the Melbourne Children's Court in relation to charges including armed robbery, theft of a motor vehicle, intentionally cause injury, dishonestly receive stolen goods, commit indictable offence whilst on bail, threat to inflict serious injury and unlawful assault. You were convicted and released on a Youth Attendance Order for a period of 6 months.
23On 9 June 2017 you again appeared at the Melbourne Children's Court for breach of Youth Attendance Orders imposed 23 March 2017 and further offences of armed robbery, theft of a motor vehicle, attempted armed robbery, committing an indictable offence whilst on bail and unlicensed driving. You were convicted and sentenced on the new offences, and resentenced on the offences the subject of the Youth Attendance Order, to a total effective term of 6 months detention in a Youth Justice Centre.
24On 22 February 2018 you were dealt with at the Moorabbin Children's Court for charges of aggravated burglary (offensive weapon), armed robbery, theft of a motor vehicle, theft, unlicensed driving, commit indictable offence whilst on bail, unlawful assault, assault in company, attempt to commit an indictable offence, burglary, theft, obtain property by deception, handle stolen goods and unlicensed driving. At that time you were convicted and sentenced to 12 months detention in a Youth Justice Centre
25On 29 November 2018 you were dealt with at the Latrobe Valley Children's Court for charges of aggravated carjacking (offensive weapon), theft of a motor vehicle and theft, at which time you were convicted and sentenced to 12 months detention in a Youth Justice Centre.
26On 25 January 2019 you were convicted and sentenced by the Melbourne Children's Court to 2 months detention in a Youth Justice Centre for recklessly cause injury.
27As already outlined you are now in contravention of a community corrections order imposed by me on 11 December 2020 in relation to a charge of carjacking.
28You are not to be punished for your criminal history a second time. It finds its relevance in the weight that needs to be given to specific deterrence, that is putting you off further offending, denunciation and the protection of the community from you. It is also relevant in assessing your prospects for rehabilitation.
29At this stage, terms of youth detention and an adult gaol sentence have not deterred you, nor have supervisory orders assisted you. The nature of your criminal offending and regularity of it add weight to the need for community protection.
The contravention
30You are in breach of the community corrections order which I imposed upon you on 11 December 2020 for the offence of carjacking. The circumstances of that offending are a matter of record and are outlined in the Reasons for Sentence of the same date.
31As referred to earlier, on 11 December 2020, you were convicted and sentenced to 486 days imprisonment in combination with a community corrections order of 2 years duration. 486 days were declared as pre-sentence detention.
32In sentencing you on 11 December 2020, I took into account:
(a) The circumstances of your offending and an assessment of the gravity of it;
(b) Matters personal to you;
(c) Your plea of guilty;
(d) Your prior criminal history;
(e) Your youth;
(f) Your prospects for rehabilitation based on materials tendered ; and
(g) Sentencing submissions made by each party
33All of those factors remain relevant to the sentencing exercise today.
34A report authored by Ms Tammy Brimmel, psychologist, dated 7 September 2016 had been tendered on your behalf. In that report you were formally diagnosed with having an intellectual disability within the meaning of the Disability Act 1986.
35Dr Matthew Treeby, neuropsychologist, had also provided a report dated 8 November 2020 and assessed your intellectual ability to be in extremely low range, with an IQ of 69, consistent with mild intellectual disability. Your particular difficulties lie in comprehension, reasoning, judgement, planning and organisation. Dr Treeby concluded that your impairment is 'near global, is long-standing… and will be permanent'. He was of the opinion that you required lifelong support with complex activities of daily living as you progress through adulthood.
36Each of these reports were extremely relevant to the sentencing exercise in 2020 and remain so this day given the findings of those assessments. Dr Treeby's report was again tendered as part of your current plea.
37Given Dr Treeby's conclusions as to the permanency of your cognitive presentation there is a basis to reduce your moral culpability for the offending that occurred on 9 April 2022 and your level of compliance with the correction order in addition to the reduction associated with the application of the Bugmy principles.
38The community correction order imposed included conditions that you be supervised by the Office of Corrections, undergo drug and alcohol treatment, and participate in services specified in a Justice Plan. The order was designed to support your continued rehabilitation.
39At the time of your release, you had family support and could access a plan with the National Disability Insurance Scheme.
40Section 83AS of the Sentencing Act 1991 provides that a judge who is dealing with a contravention of a corrections order can deal with the offender for the original offence with respect to which the order was made as if the court had just found him guilty of that offence. In other words, the offender can be re-sentenced entirely afresh. In effect, you can be sentenced for the contravention of the correction order and your original offending which saw you placed on that order. It is that course which the Office of Corrections seek I undertake and that is supported by the Office of Public Prosecutions.
41Section 83AS(2) of the Sentencing Act 1991 requires me to take into account the extent to which you have complied with the order made.
42I have had recourse to the contravention package filed and the 'Contravention of Community Corrections Order by Conditions and further offences Report' dated 22 December 2022.
43You failed to comply with the direction given on seven occasions, failed to undergo treatment and rehabilitation as required on seven occasions, failed to be supervised, monitored and managed as directed on 17 occasions and failed to comply with the conditions of your Justice plan on two occasions.
44The report tells me that you initially attended appointments by telephone before transitioning to in-person appointments. You were commenced on the order during the height of the COVID-19 pandemic and community restrictions.
45Your overall engagement whilst reporting to community correctional services was described as 'somewhat satisfactory'. You presented in a polite and reasonable manner.
46You seemed to engage well with supports offered through Disability Justice although less so with psychological services which were offered via the Zoom media platform.
47The need for Corrections to respond to the COVID-19 pandemic meant there were difficulties in delivering services in the usual way. This I accept, in general terms, would have made it more difficult for you to navigate the order in your case with your recognised intellectual disability.
48Dr Treeby opines:
'Mr Hodder's cognitive difficulties have implications for the delivery of interventions which aim to assist him with his day-to-day functioning. He is likely to respond best to interventions which are concrete, structured, and environmental in nature. He is likely to learn best by rote and by being provided with "hands on" examples as to how to complete tasks.'
49You were also convicted of further offences during the operational period of the order which included a fine in the amount of $2150 imposed by the Latrobe Valley Magistrates' Court on 28 July 2022 in relation to charges of drive whilst disqualified, wilfully damage property, and unlawful assault.
50On 20 September 2022 you were convicted and sentenced to 80 days' imprisonment by the Latrobe Valley Magistrates' Court for charges of persistent contravention of a family violence intervention order, commit indictable offence whilst on bail, stalking and possess controlled weapons without excuse.
51Obviously the Magistrates' Court has dealt with for your further offending but it still represents an inability to comply with the community corrections order imposed upon you on 11 December 2020.
52There had been some return to cannabis usage and you struggled to remove yourself from negative peer influences when relationships with your family deteriorated, resulting in further offending.
53You were remanded into custody on 10 April 2022 as a result of further offending.
The offending
54The circumstances of that further offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 10 March 2023. It is a detailed document and represents an acceptance by you of all the elements of the offence to which you have pleaded guilty and the factual basis on which I am to sentence.
55In the lead up to the offending you were communicating with your 'nan', Christine Shearer, and your ex-partner, Alyzah Bell, about getting access to a car.
56In short compass on 9 April 2022 at approximately 6:45 am your two victims, Ryan and Sarah O’Brien[1], were in bed at their home located in Black Rock. Ryan O’Brien was awake listening to the news and Sarah O’Brien was asleep.
[1] Ryan and Sarah O’Brien are pseudonyms.
57At approximately 7:30 am you attended their home and gained access to a rear yard by forcing open an unlocked side gate and breaking the latch. You forced locked bifold doors to the home which caused significant damage. This allowed you to gain access to the residential premises and forms the basis for Charge 1 – aggravated burglary.
58Once inside, you began rifling through drawers in the front living room and kitchen. You removed what is described as a 'honing rod' (a knife steel) from a kitchen drawer.
59Ryan O’Brien went to investigate a noise and was confronted by you in the hallway.
60You yelled at him 'Give me your car keys!' to which Ryan O’Brien replied, 'Get out of here'. You replied, 'I'll stab you!'. These facts form the basis for Charge 2, attempted armed robbery.
61You waved the honing rod back-and-forth in a threatening manner. Ryan O’Brien yelled at you to leave his house but you lunged twice at him with the honing rod approximately 5 centimetres from his face. You then raised the honing rod and struck Ryan O’Brien across the stomach, causing a red mark. This is the factual basis for Charge 3, common law assault.
62Ryan O’Brien continued to yell at you to leave the house. At this point you turned and ran, leaving through the rear. You dropped the honing rod and fled through the side gate where you had entered.
63You removed some of your clothing, leaving it in some bushes.
64Police were contacted and an investigation commenced. Ultimately you surrendered yourself to police at around 6:15 pm in a location in Malvern East.
65You were arrested and, after receiving necessary medical attention as you had self-harmed, participated in a record of interview.
66At the time of this offending you were the subject of a bail order made by the Latrobe Valley Magistrates' Court on 17 March 2022, forming the basis for the related summary offence of committing an indictable offence whilst on bail.
Offence gravity and victim impact
67The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
68Ryan O’Brien has provided a victim impact statement. There were costs associated with repairing the damage caused by your break-in and in additional security measures the O’Briens required to feel safe. Ryan O’Brien describes feeling insecure in his own house and being anxious, particularly at night and at the start of the day. Both he and his wife suffered interrupted sleep, awakening easily to any noise and being afraid that someone was in the premises. He has had to seek psychological assistance.
69Your offending is obviously serious.
70You entered the private home of two people in the early hours of the day, caused damage and were involved in a physical confrontation using a weapon you obtained once inside. This was an environment in which both Ryan and Sarah O’Brien were entitled to feel safe. I have little doubt that they would have found the experience of you in their house as terrifying.
71Your entry to the O’Brien premises was in order to take their motor vehicle with no concern as to how their lives would be impacted.
72Given the content of your communications to others detailed in the Crown opening, it would appear that you were literally on the hunt for a car and that the O’Briens were your unfortunate victims. The circumstances outlined to me lend me to accept that you showed a reckless disregard to their presence.
73The circumstances overall again place relevance in the principle of protection of the community.
Plea of guilty
74The charges resolved to those on the indictment on the day of a committal hearing. No witnesses were required to give evidence. There was a factual dispute between the parties which resolved on that day, allowing your pleas of guilty to be entered.
75In that sense your plea has occurred at a relatively early opportunity.
76You also admit to contravening the community correction order imposed 11 December 2020.
77I do accept that your pleas have utilitarian value and have saved the court the time and expense of contested proceedings and the need for witnesses to give evidence and relive distressing events.
78Your plea has taken place whilst the courts are still responding to the backlog of matters created by the COVID-19 pandemic. This has additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the court's operations were significantly disrupted and many trial dates were affected.
79You have taken responsibility for your offending and I do accept that you are remorseful.
80These factors will be taken into account in your favour.
Prospects for rehabilitation
81For obvious reasons I am less satisfied as to future prospects than I was in December 2020.
82At 21 years of age, you are still a young offender and there remains a basis to give rehabilitation some additional focus in your sentencing.
83Whilst on remand you have been seeing counsellor, Valentino Gonsalves, on a regular basis.
84You have obtained a billets position which is a trusted position within the prison system.
85Tendered on your behalf was a letter authored by Dominic Richardson, NDIS support coordinator, dated 15 March 2023. Mr Richardson works with Phoenix Specialised Youth and Disability Services. His letter explains that you have been successful in obtaining a National Disability Insurance Scheme plan and that you have been engaged with Phoenix since 6 June 2022. You will have an NDIS plan for the rest of your life. With such supports you have set goals of being able to live in your own home and increase your life skills, find a job, and being able to better manage your emotions and behaviours. You have engaged with supports whilst in custody and been proactive in doing so. Support coordination has clearly continued whilst you have been incarcerated and will continue upon your release into the community. I encourage you to use all supports available to you through the NDIS scheme. It is clear from Mr Richardson's letter that you intend doing so.
Totality
86The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is 'just and appropriate' for the whole of the offending. In today's sentencing, care must be taken with the contravention proceedings, the associated resentencing exercise, the charge of contravening a community correction order and the charges on Indictment N10987466 and related summary offence.
Sentencing submissions
87On your behalf it is submitted that I should consider having you further assessed as to your suitability for a community corrections order with Justice Plan conditions.
88The Crown contends that in dealing with all matters the court should impose a head sentence with non-parole period.
89Taking all relevant factors into account, I accept the Crown submission. I do see benefit, however, with an extended period of supported transition into the community given your youth, intellectual disability and the supports available to you through the NDIS scheme.
90Mr Tomlinson, anything arising so far?
91MR TOMLINSON: Nothing so far, Your Honour.
92HER HONOUR: Mr O'Halloran?
93MR O'HALLORAN: No, thank you, Your Honour.
94HER HONOUR: All right.
Sentencing
95The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
96I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, offenders are rehabilitated and safely reintegrated into society.
97I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.
98In terms of the corrections order imposed 12 December 2020, I do find the contravention proven.
99I cancel the correction order and resentence on the original charge of carjacking. For that offence, you are convicted and sentenced to 20 months imprisonment; 486 days are reckoned as served.
100On the charge of contravening the community corrections order you are convicted and sentenced to 14 days imprisonment. This is to be served concurrently with the sentence imposed for the charge of carjacking.
101On indictment N10987466, I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. They were all part of the same incident occurring within a short amount of time.
102For the three charges on that indictment you are convicted and sentenced to 3 years and 6 months imprisonment. This is the base sentence. 331 days are reckoned as served by way of presentence detention.
103You do have a history for offences against the Bail Act. Accordingly, for the offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment. Again, with totality in mind, this is concurrent with the sentences imposed on Indictment N10987466.
104Six months of the sentence imposed for the charge of carjacking is cumulative on the sentences imposed on Indictment N10987466.
105This does comprise a total effective sentence across both sets of matters of 4 years' imprisonment.
106I fix a period of 2 years before you are eligible for parole.
107Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. Whilst somewhat artificial in the circumstances given the weight in sentencing which attached to your cognitive functioning, If not for your pleas of guilty I would have sentenced you to a total effective sentence of 5 years and 6 months' imprisonment with 3 years and 8 months before being eligible for parole.
108Anything else that requires clarity, gentlemen?
109MR O'HALLORAN: No, Your Honour.
110MR TOMLINSON: I just missed, sorry, the 6AAA, Your Honour. If I could just have that again.
111HER HONOUR: You can if I can find it. I just closed it.
112MR O'HALLORAN: Five and a half years with a non-parole of 3 years 8 months I think was what Your Honour said.
113HER HONOUR: Thank you, Mr O'Halloran.
114MR TOMLINSON: Thank you.
115MR O'HALLORAN: That is all right, Your Honour.
116HER HONOUR: As indicated, Mr Tomlinson, I will give you time with Mr Hodder.
117MR TOMLINSON: Yes. Thank you, Your Honour.
118HER HONOUR: Otherwise, I am standing down till 11 I believe. Thank you.
119MR O'HALLORAN: Yes. As Your Honour pleases.
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