Director of Public Prosecutions v Hodgkinson
[2018] VCC 1279
•31 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00571
Indictment No. H13480261
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL HODGKINSON |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 19 July 2018 | |
DATE OF SENTENCE: | 31 July 2018 | |
CASE MAY BE CITED AS: | DPP v Hodgkinson | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1279 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V. Morkos (plea) Mr M. Robinson – OPP Victoria (sentence) | Office of Public Prosecutions Victoria |
| For the Offender | Mr D. McGlone (plea and sentence) | Michael J. Gleeson & Associates Pty |
HER HONOUR:
1 Michael Hodgkinson, you have pleaded guilty to an Indictment containing three charges; one charge of armed robbery and two charges of theft. You have also pleaded guilty to a related summary offence, being a charge of commit an indictable offence, namely armed robbery, whilst on bail. You have also admitted your criminal history. The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment, and the maximum available penalty for committing an indictable offence whilst on bail is 30 penalty units, or three months' imprisonment.
2 A Summary of Prosecution Opening was tendered on the plea and marked Exhibit 1. I will confine my remarks here to a summary.
3 Charge 1 occurred in the early hours of the morning on 18 November 2017. The victim, a taxi driver, received a job to collect a customer in Broadmeadows. The job was booked by you under the name "Alex". You were waiting for the victim when he arrived in his taxi, and seated yourself in the front passenger seat, requesting the victim to drive you to Fawkner, approximately 8.9 kilometres away. Approximately 15 minutes into the journey, you put your hand on the gear shift and placed the gear into park whilst the taxi was moving, causing it to come to a stop. You then produced a large knife with a 30-centimetre blade, pointed it at the victim, and demanded his wallet. The victim told you he did not have any money in his wallet and suggested he had money in his pocket. You then demanded, "Give me your money now!" The victim took approximately $150 to $160 cash out of his shirt pocket and gave it to you. He pleaded with you to take the money and not hurt him, and to leave him alone. The victim was in fear of being stabbed by you. You continued to hold the knife and pressed the victim for money, asking if that was all he had. You then demanded that the victim get out of the taxi. Whilst the victim was getting out of the taxi, you grabbed his mobile phone, which was sitting in the centre console. The victim pleaded with you to return the phone, and you told him you would give it back if he got out of the taxi. The victim then exited the taxi, and you slid over the centre console into the driver's seat and asked for keys. The victim told you the keys were in the taxi. You then threw his phone out of the taxi onto the nature strip and attempted to drive away; however, you were unable to deactivate the electronic handbrake. You then made a further demand for the keys while still holding the knife in your hand. A witness in a nearby home heard two males arguing and came out of his house. This disturbed you, and the victim took the opportunity of running away to the safety of the witness's home. You fled the scene on foot. Police attended, however they were unable to locate you.
4 On 8 December 2017, you contacted the victim of Charge 2, Gillian Farley, via a text message, enquiring about a car she had advertised for sale on Gumtree. Arrangements were made between you and Ms Farley for you to attend her home and inspect the vehicle, a white Volkswagen Golf. At approximately 7.30 pm on 11 December, you attended Ms Farley's home, introduced yourself as Michael, and provided her with your probationary driver's licence. Ms Farley confirmed the image in the licence appeared to be you.
5 Ms Farley then provided you with the keys to open the car to perform an inspection, whilst she kept hold of your licence. You reached into the car and turned the ignition on, whilst still standing outside the car. You then sat in the driver's seat and revved the vehicle, whilst Ms Farley stood behind the car. She then walked to the passenger side and you have told her you would be taking the car for a test drive. She told you, "Not without me, you're not." You have then reversed the car fast down the driveway and driven away. Ms Farley was shocked by your conduct and immediately called police, providing the licence which you had given her.
6 After police investigation and inquiries, police attended at the Meadow Inn Hotel on Wednesday, 20 December 2017, where they observed a Volkswagen Golf, bearing registration plates TTH 393. Inquiries in relation to the plates revealed that they had been stolen between 16 and 17 December 2017 from an address in Coburg North.
7 Police attended inside the hotel and observed you playing on the pokie machines. You were arrested and cautioned, and conveyed to Fawkner Police Station, where you made a "no comment" interview in relation to the armed robbery. When asked about travelling by taxi, you told police that the last timeyou had called a taxi could have possibly been four years ago. In relation to the theft of the Volkswagen Golf, you stated, "No Comment. I lost my licence, like, a long time ago."
8 During a forensic examination of the Golf, your fingerprint was located on the rear view mirror. Both victims also identified you as the person responsible, from a photo board identification. At the time of the commission of these offences, you were on two sets of bail. You failed to appear at the Sunshine Magistrates' Court on 27 and 30 November 2017.
9 A Victim Impact Statement of Mr Abbas, the taxi driver, was tendered on the plea. Mr Abbas said that at the time of the offending, he was frightened for his life, not knowing whether you would use the knife. He said he felt scared at the time it happened, and he has not been the same since that day. He worries that it might happen again, and initially he was worried and fearful, and could not work in the area of Broadmeadows. He had trouble sleeping, talking, going outside, and did not want to leave his family alone. He said things are now a lot better and getting back to normal at home. However, he has stopped working Saturday nights, fearing it would happen again. He said he is still always worried when he goes to work, and his family get worried all the time now. He said he has just lost his normal life. He was happy, and that changed, and he now goes to work in fear.
10 The prosecution submitted that armed robbery is a serious offence, and you have relevant prior convictions. The victim was a vulnerable victim, and there was a degree of planning involved, in that you armed yourself with a knife and called the taxi. It was agreed between the parties that the attempted theft of the taxi was to be regarded as an aggravating feature of the armed robbery. However, you were not charged with a separate offence of attempted theft, and I am mindful that you should not be punished for something with which you are not charged.
11 Your counsel stated, on your behalf, that at the time of this offending, you had commenced using drugs again, and had a heroin habit. You were trying to detox without help, and the motivation for the offending, as I understand it, was to obtain money to buy drugs. It was submitted there was a marked lack of sophistication in the offending. In my view, the armed robbery was planned, to some extent, in the ways outlined by the prosecution. The theft of the Volkswagen Golf was less sophisticated, and I note that you used your own licence and left that licence at the scene. You did retain and use the vehicle for approximately two weeks, and replaced the number plates with stolen plates, no doubt in an attempt to avoid detection.
12 I turn now to your personal circumstances.
13 A psychological report of Tim Watson-Munro, dated 6 July 2018, was tendered on your behalf. An undated reference from your mother was also tendered, and I note there is a short paragraph from your sister at the end of that reference. A reference was provided by your girlfriend, and from Danice Frichitthavong. A bundle of references from the Mousa family was also tendered on your behalf. Finally, a letter written by you to this court was also tendered on the plea.
14 You are the third of four siblings, born 8 April 1987. Your parents separated in around October 1991 as a result of domestic violence. Your mother moved to Tasmania to escape your father. Unfortunately, your mother formed another dysfunctional relationship, marked by physical and emotional abuse and domestic violence. Your mother said you became withdrawn and would not show emotion. In primary school, you burnt yourself with an iron, or so it was thought. Child Protection removed you and your brother and kept you for 30 days, before returning you to your mother on an order. You would never talk about this, but it seems you were burnt with the iron by your mother's then-partner. You were bullied in high school and survived by becoming a bully. Your father died when you were aged around 15, and you left home for Melbourne, aged around 16, because you could not cope at home.
15 Your education was marred by your problems at home, and you had difficulty applying yourself to school. You attended nine different primary schools and two different high schools in Hobart, before leaving half way through Year 10.
16 When you returned to Melbourne, you attempted to restart you education, and managed to complete Year 11 at Sunbury Secondary College. You commenced employment and pursued a plastering apprenticeship. You did not complete it, but did continue working in plastering. It seems that you have a good work ethic when you are not drug addicted.
17 Once in Melbourne, you also began using drugs. At the age of 19, you returned to Tasmania with an ice addiction and with your then-partner. Your mother and family supported you to get clean, which you did, as well as obtaining employment.
18 Aged approximately 21, you returned to Melbourne. Your then-girlfriend was pregnant, but miscarried, and subsequently you broke up. According to your mother, this totally broke you, and you returned to using drugs and ended up going to jail, where you were diagnosed apparently with bipolar disorder.
19 I pause to note that despite the reference to bipolar disorder, there is nothing before me to say you have, in fact, been formally diagnosed with that disorder. I note that you are currently doing well in prison, and are not on any medication. I will return to this issue.
20 In 2012, you were sentenced by this court on three charges of armed robbery. The three armed robberies were also committed on taxi drivers. You called the taxis, sat in the front seat, and, at a certain point, produced a knife and demanded money. You then stole the taxis. For that offending, you had with you a co-offender who was seated in the back seat on all occasions. I note that that offending is almost identical to this offending, being the armed robbery, other than, on this occasion, you had no co-offender, and you failed to successfully steal the taxi. You were sentenced by this court for that offending on 31 August 2012. I was provided with the Reasons for Sentence in relation to those three armed robberies. The armed robberies were characterised by Her Honour as "lower to midpoint," and the Crown accept that this characterisation applies here. In sentencing you, Her Honour found grounds to moderate general deterrence. She regarded your prospects of rehabilitation as positive, and found that personal deterrence and protection of the community had lesser roles to play in formulating an appropriate sentence. Totality would have played a part in the sentences Her Honour imposed.
21 On that occasion, you were sentenced to a total effective sentence of four years and eight months' imprisonment, and Her Honour fixed a non-parole period of two years and six months. I am told you had two attempts at parole, but were never granted parole. Your first attempt failed because you had a dirty urine screen. As a result, it seems you were never paroled, and served the entire of the four years and eight months.
22 Whilst in custody, you met and commenced a relationship with your current girlfriend, Hanene Elzaibak. You were released from custody in December 2016. Upon your release, you were embraced by your girlfriend's family, the Mousa family. I have been provided with a number of references from that family, and it is clear that they regarded you well. They describe you as respectful and helpful, and enjoyed having you with them. Upon your release, you were also able to return to work as a plasterer with your previous employer. Despite your imprisonment, you had maintained a positive relationship with your employer.
23 It is clear when you were released, you had completely different intentions and hopes to what has ended up eventuating. You had the support of your family, the support of your girlfriend's family, and employment. You had an opportunity to start afresh and tried to do that in the first six months, including working as a plasterer.
24 I am told that there was a downturn in work, which resulted in you not working, in circumstances where your partner was working. I note, however, that in the report of Mr Watson-Munro, he said you found it difficult upon your release to negotiate work, because of a drug problem and escalating psychiatric issues. In any event, work dried up, and you found yourself unemployed.
25 It seems that by mid-2017, you had returned to drug use. I am told you took up with an old prison associate, and because you did not want to use methamphetamine, you started smoking heroin instead, and you rapidly became addicted.
26 On 16 June 2017, you were arrested and placed on bail for shop theft. On 24 July 2017, you were arrested and placed on bail for possessing heroin and possessing a prescription drug of dependence. I am told you became embroiled, again, in the criminal world and the world of drug debts. You did not seek out any professional help, and you recognise now that you should have. By the time of these offences, being the offences before me, your life had again gone off the rails. You were smoking heroin and crashing at various drug associates' houses.
27 I turn now to other matters.
28 You entered a plea of guilty at committal mention, and, in my view, this is a plea of guilty at the earliest reasonable opportunity.
29 Your plea of guilty reflects an acceptance of responsibility by you and a willingness to facilitate the course of justice, together with the utilitarian benefit of saving the community the cost of a trial, including saving the victims the ordeal of giving evidence. It is submitted that the plea of guilty is also evidence of some remorse. Further, you expressed remorse to Mr Watson-Munro, and also in your letter to the court. The letter from your girlfriend also speaks of your shame and remorse, together with your regret for the pain you have caused the victim of your offending and the people who love you. Other references also speak of some remorse. I am satisfied that you are remorseful for your offending, and now that you are drug free, you are capable of expressing some empathy for your victim.
30 Your counsel submitted that your prospects of rehabilitation are not wholly extinguished by this re-offending. I accept that you have some prospects for rehabilitation, but they are somewhat guarded. It is clear that you need to stay away from illegal drug use. It also appears that you are unlikely to be able to do that without sustained professional assistance. I am told that since being in custody, you have signed up for courses to deal with drug and alcohol relapse prevention. However, at this point, you remain on the waiting list.
31 Mr Watson-Munro assessed you on 21 May 2018. At that time, you had been assaulted whilst at the MRC, felt unsafe, and were locked in your cell 13 hours a day. It appears since then you have been moved to Port Phillip Prison, and thing have improved. I am told you are a unit billet, a position of some responsibility. Any random urine tests have been clean, and I am told, and accept, that you are drug-free.
32 As mentioned earlier, there is some reference in the material to you being diagnosed last time in custody with bipolar disorder. Your counsel does not rely on this in any way. As I observed on the plea, I have no material before me that establishes that diagnosis, and in any event, there is nothing to suggest that even if you are bipolar, it played any part in this offending. I note in the sentencing remarks of Judge Millane, referring to the earlier report of Mr Watson-Munro back in April 2012, that you were then diagnosed as suffering from a protracted anxiety disorder, major depression, post-traumatic stress, and a substance abuse disorder. On this occasion, Mr Watson-Munro diagnosed you with severe depressive disorder.
33 Armed robbery committed against soft targets is a prevalent type of offending, and general deterrence, denunciation and community protection are significant sentencing factors. Taxi drivers provide a necessary service. They are nearly always, if not always, alone, and often working late at night. The knife you chose was a large and dangerous weapon. You planned the incident to some degree, by arming yourself, calling the taxi, and seating yourself in the front seat. Charges 1, 2 and 3 were all committed whilst you were on bail. Specific deterrence is a relevant sentencing factor, given your prior criminal history includes three almost identical armed robberies.
34 Your counsel submitted that you had an opportunity when you came out of prison, and, through your stupid decisions, you went back to drug use. In my view, you do have some prospects of rehabilitation, given your age, the support of your girlfriend and her family, and your family's support, but your prospects of rehabilitation are very much tied to your ability to stop using illicit drugs. If you continue to do that, you are almost certainly destined to return to criminal offending and to custody.
35 Mr Hodgkinson, can you please stand. In all the circumstances, the sentence of the court is as follows.
36 On Charge 1, you are convicted and sentenced to three years and six months' imprisonment. This is the base sentence. On Charge 2, you are convicted and sentenced to 15 months' imprisonment. On Charge 3, you are convicted and sentenced to three months' imprisonment. On the summary offence of commit an indictable offence whilst on bail, you are convicted and sentenced to one-month imprisonment.
37 I direct that seven months of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively upon the sentence on Charge 1 and upon each other. The sentence of one month on the summary offence is wholly concurrent with the sentence imposed on Charge 1.
38 This makes a total effective sentence of four years and two months' imprisonment, and I direct that the minimum term you must serve before becoming eligible for parole is two years and six months' imprisonment. I order that – is it 221 days, not including today?
39 MR ROBINSON: I'll just check that. I have 223, Your Honour, to today.
40 HER HONOUR: Mr McGlone, are you happy with 223? Sorry, not including today, Mr Prosecutor.
41 MR McGLONE: It might include today, so perhaps 222, Your Honour.
42 HER HONOUR: Do counsel want a moment to check that?
43 MR McGLONE: Yes, I wouldn't mind.
44 HER HONOUR: On the last occasion we were here, I was told that PSD was 221 days, not including today.
45 MR McGLONE: Yes, that was correct.
46 HER HONOUR: I added ten, but maybe I should have added 11, which would be 222.
47 MR McGLONE: I think that is actually correct, Your Honour, yes.
48 MR ROBINSON: I think if we work on 222, Your Honour, that'd be safe.
49 HER HONOUR: All right, thank you. I order that 222 days be reckoned as a period of imprisonment already served under this sentence.
50 Pursuant to s 6AAA, but for your pleas of guilty, the total effective sentence I would have imposed is six years' imprisonment, with a non-parole period of four years' imprisonment.
51 On charge 2, any licences or permits held by you are cancelled, and you are disqualified from obtaining a licence for a period of 12 months from today.
52 I have also made the forfeiture order and the compensation order sought, and a forensic sample order. Mr Hodgkinson, the reasons for making the forensic sample order are the seriousness of the circumstances of the offending and your prior convictions. I also note that it is by consent – you do not oppose the order – and, in my view, the granting of the order is in the public interest. Your counsel will explain that order, but it gives the authorities the right to take a forensic sample from you.
53 PRISONER: They've already done it. They've done it two weeks ago.
54 HER HONOUR: Well this is a taking, not a retention. But in any event is there a problem?
55 MR McGLONE: No, there's not a problem.
56 HER HONOUR: All right. The sample will be retaken. So, I make that order, unless there's anything else?
57 MR ROBINSON: No, Your Honour.
58 HER HONOUR: All right, thank you. We'll adjourn the court until 10.30.
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