Director of Public Prosecutions v Hodgson

[2018] VCC 875

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00933

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE HODGSON

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JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATES OF HEARING:	12-14 February 2018 (Trial). 2 March 2018, 16 April 2018 and 30 April 2018 (Plea).
DATE OF SENTENCE:	28 May 2018
CASE MAY BE CITED AS:	DPP v Hodgson
MEDIUM NEUTRAL CITATION:	[2018] VCC 875

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence - armed robbery – plea of guilty
Legislation Cited:  Crimes Act 1958 (Vic), s75A

Sentence:Total effective sentence of five years and five months’ imprisonment and a non-parole period of three years and four months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C McConaghy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M Mann	Stary Norton Halphen

HER HONOUR:

1Shane Hodgson, you have pleaded guilty before me to one count of armed robbery.  The maximum penalty for armed robbery is 25 years' imprisonment.  You are now aged 23 and were 22 years old at the time of this offending. 
Exhibit A on the plea in mitigation is the Summary of Prosecution Opening which sets out in detail the facts and circumstances of this offence.  However, I will briefly summarise the offence. 

2At approximately 10.49 am on 18 August 2016 you along with your co-offender, Daniel Gretelianos, entered the Ferntree Gully Bowling Club.  You were armed with an under-over double-barrel sawn-off shotgun and your
co-offender, Gretelianos, a machete.  Both of you were disguised:  Gretelianos with a mask, you with a black balaclava.  You robbed the bowling club of $3,315.00 in cash and left the scene in a silver Holden Cruze driven by your co-offender, Daniel Brittain. 

3The principal victim in this matter, Ms Andrea North, was working as the compliance manager at the bowling club at the time of the offence.  At the time you and Gretelianos entered the club there were approximately 25 patrons there.  Andrea North was at the gaming room bar making coffees when she first saw you and Gretelianos.  You walked directly towards her and told her to “go and get the money”.  She initially said no.  You then pointed the gun at her chest and pulled the trigger, which made a clicking sound but did not fire. 

4You again demanded that she go and get the money.  Ms North then walked to the strong room where the club safes are kept.  She told you that at least one of the two safes was on a time delay and you would have to wait ten minutes.  Whilst in the strong room you took cash from a lockbox on the wall.  You also made various further demands to open both safes held in the strong room. 
One safe was empty and the other subject to a time delay as she had previously told you. 

5The exchange between you and Ms North regarding the two safes in the strong room was captured on exhibit D, CCTV footage dated 18 August 2016.  Watching it is a chilling experience.  The footage makes clear that in the course of your dealing with Ms North you used the sawn-off shotgun in order to force compliance with the various demands you made of her. 

6While you were in the strong room your co-offender, Gretelianos stood outside the entrance to the gaming room bar and told the other patrons to keep out. 
He banged the machete on the counter and said "Stay where you are and you won't get hurt.  Don't call the cops and you won't get hurt".  He can be seen on the CCTV footage waving the machete around in a menacing and threatening fashion.

7You and Gretelianos then left the club and your co-offender, Brittain, drove you away from the scene.  Gretelianos and Brittain were arrested at an address in Dandenong some hours later on the same day as the armed robbery.  Police executed a search warrant at that address and located the silver Holden Cruze which had been used in the armed robbery.  Inside the premises police found the face mask used by Gretelianos, as well as the machete. 

8Your co-offender, Brittain, made admissions in relation to his involvement in this offence.  He also made three sworn statements to the police outlining his involvement, yours and that of your co-offender, Gretelianos.  You were arrested on 23 September 2016 and made no comment during your record of interview.

9This matter was originally set down for trial before me on 12 February 2018. 
I heard pre-trial legal argument on that day and the following day. 
On 14 February 2018 you then pleaded guilty to one charge of armed robbery.

10As is clear from a viewing of the CCTV footage there can be no doubt that
Ms North was subjected to an utterly terrifying experience.  Exhibit B consisted of her victim impact statements.  In the first victim impact statement dated 10 February 2017 she said this:

"As a result of being terrorised with a sawn off shotgun and a machete I have had to deal with fear, physical shaking, hot and cold sweats, nervousness, nightmares, sleeplessness and the terror of uncontrollably reliving the event".

11She also stated:

"In the weeks after the robbery I tried to go back to work but this resulted in increased anxiety and panic attacks.  I was not able to concentrate or keep my attention on my duties and working in the area where the event took place was traumatic".

12Almost a year later she made a subsequent victim impact statement.  While she observed that it had been 18 months since the day of the robbery, she said this:

"I am still feeling the effects of that day.  Although I have been able to return to work. I no longer work at the Ferntree Gully Bowling Club as I was not able to overcome the anxiety of working in the place that caused me so much distress".

13She also observed, "Now that the perpetrator has finally pleaded guilty I hope that I can move on and regain the health and passion for life that I had before this event". 

14This is serious offending warranting condign punishment.  In my view, your degree of moral culpability for this offence is high.  It constitutes a particularly serious example of the offence of armed robbery.  The enlistment of Brittain as the getaway driver and the deployment of masks and balaclavas for use as disguises speaks to a significant degree of planning.  Furthermore, you and Gretelianos attended the bowling club earlier on the day of the offence in order to ascertain its opening time.  The nature of the weapons used is not insignificant nor is the fact that you pointed the gun at Ms North's chest and pulled the trigger.

15As already noted, you pleaded guilty to this offence on 14 February of this year.  I accept that your plea is consistent with an acceptance of responsibility for your role in this offence and a desire to facilitate the administration of justice.

16Your co-offender, Gretelianos, was sentenced on 10 March 2017 in this Court by Her Honour Judge Pullen.  He was convicted and sentenced to four years' imprisonment with a non-parole period of two years and four months. 
Your co-offender, Daniel Brittain, was sentenced on 7 April 2017 by the same Judge.  On the charge of armed robbery he was convicted and sentenced to a Community Correction Order for a period of four years. 

17As indicated in the course of the plea in mitigation, the sentence in relation to Daniel Brittain is of limited assistance on the question of parity by dint of his offer to give evidence against you and Gretelianos.  It was common ground between the prosecution and your counsel that the sentence of Gretelianos was the more logical starting point so far as the question of parity is concerned.  However, your defence counsel also conceded that a degree of disparity was warranted. 

18Ultimately the submission was made that the correct application of the parity principle dictates a longer period of imprisonment than that imposed on Gretelianos, albeit it one that reflects only a modest increase.

19The prosecution submitted that there was a significant disparity between you and Gretelianos in regards to the role played by each of you in the commission of the offence.  It is clear that you were armed with the more dangerous weapon, being the sawn off shotgun and again, as I am aided by viewing the CCTV footage, you were the only one with direct dealings with the victim in this matter, Ms North.

20I accept the submission made by the prosecution that Gretelianos' role was that of a lesser player although I make the observation that the role played by each of you was integral to the successful execution of the armed robbery. 

21At the time of the commission of this offence you were on Youth Parole. 
On 21 March 2016 you were released pursuant to a Youth Justice Centre Order imposed by His Honour Judge Bourke in this Court on 18 December 2014.  On that day, His Honour imposed a three-year Youth Justice Centre Order in respect of a number of offences which included two charges of armed robbery, three charges of possessing a firearm as a prohibited person and two charges of aggravated burglary. 

22The facts of one of the armed robbery offences bears a striking similarity to this offence.  Whilst you are still a relatively young man your involvement in this offence and previous violent offences reveals a concerning pattern of behaviour.  There are some hallmarks emerging in relation to your offending conduct, the most disturbing of which involves the use of a firearm on at least three previous occasions.  Given this, the sentencing principle of specific deterrence in your case must be given considerable weight.

23I received as exhibit 3 a progress report authored by Ms Nicole Salter, Team Leader, Youth Justice.  Part of the delay in the disposition of this plea related to some difficulties associated with the obtaining of this report on your behalf. 

24Be that as it may, I found her report to be of considerable assistance as it provided me with some essential background as to your time on the Youth Justice Centre Order imposed by His Honour Judge Bourke.  The report observed that your behaviour in custody whilst at Malmsbury Youth Justice Centre was mostly positive, as was your attendance at Youth Justice supervision appointments upon your release on parole.

25Ms Salter indicated that you openly communicated with her the challenges you faced with transitioning into the community after a lengthy period of incarceration.  However she notes that you were profoundly impacted by the death of a close friend on 19 August 2016.

26As part of Youth Parole you were required to participate in substance abuse counselling and it is to your credit that you completed 12 out of your
14 sessions.  You were residing at a Youth Justice transitional housing property in Power Avenue, Chadstone, when you were released on Youth Parole.  Indeed this is the address that you were arrested at on 23 September 2016.  On that day you were remanded in custody in relation to this offence and you have remained in custody ever since.

27I note that the Youth Parole Order expired on 27 April 2018.  I was informed by the prosecution that it was never cancelled, thus there was no subsequent involvement with the Youth Parole Board.  However Ms Salter's report indicates that Youth Justice continued, presumably up until the order expired, to visit you in adult remand every three weeks and that you have engaged well in those interactions.

28The experience of being on remand in the adult prison system has been an adverse one for you.  Tendered on the plea was exhibit E.  These are two affidavits of Ms Jennifer Ann Hosking, of Corrections Victoria.  They outline various incidents that you have been involved in since your initial reception to the Melbourne Assessment Prison on 26 September 2016. 

29Since 11 January 2017 you have been classified as a protection prisoner and have found that experience oppressive.  At the time that Ms Hosking swore her affidavit you were being held in Deakin C Protection Unit at the Melbourne Remand Centre.  You are now in protection at Port Phillip Prison.  As articulated in Ms Hosking’s affidavit, it is impossible to know how you will be classified in the future as this will ultimately depend on your behaviour and your interaction with other prisoners.  While you may be subsequently classified to again become a mainstream prisoner, I do take into account in imposing sentence upon you the fact that your classification has remained unaltered since January 2017. 

30You have made some gains whilst in custody.  As at June 2017 you were employed as a unit billet and had completed a number of education courses.  Tendered on the plea as exhibit 4 were two certificates evidencing your successful completion of two courses run by the Kangan Institute.  I also received in evidence three certificates indicating urine screens, all with a negative result. 

31As was conceded by your defence counsel, a further period of imprisonment in your case is inevitable.  Your offending behaviour commenced in your adolescent years and has been persistent until your remand on this matter on 23 September 2016.  Of particular concern is your disclosure to Ms Salter that many of your negative associations are linked to individuals that you have met on previous occasions whilst on adult remand.  She states that you have a history of gravitating towards negative peers to get a sense of belonging and acceptance.

32In imposing sentence upon you I am mindful of the fact that as a relatively young person you remain extremely vulnerable to negative association and the potential to become entrenched in the adult prison system.  Indeed you expressed this very concern to Ms Salter in 2014 when being assessed for the Youth Justice Centre Order ultimately imposed by His Honour Judge Bourke. 

33This signals to me that you possess some level of insight and understanding as to what the future holds for you should you continue to offend in the same manner.  You further acknowledge the wrongfulness of your offending behaviour to Dr Cunningham.[1]  In his view, you present with insight into your risk factors and need for treatment. 

[1] Exhibit  2

34Any assessment as to your prospects of rehabilitation that I make must take account of your unenviable criminal history.  While both Dr Cunningham and Ms Salter's reports make it clear to me that you are not without insight as to the reasons for your offending behaviour, it would be overly optimistic, in my view, to assess your prospects for rehabilitation as anything other than guarded.

35I turn now to your personal circumstances.  You are the product of severe disadvantage.  You are the only child born to Catherine Hodgson and
Lee Fletcher.  You and your mother were exposed to violence from your father.  The relationship dissolved not long after you were born and you have had very little contact with your father.  From the age of six you lived in foster care and residential units.  You had a long placement in foster care with a couple who lived in Bonnie Doon and you suffered chronic physical and emotional abuse at their hands.

36You told Dr Cunningham that whilst there you were treated like "a dog" and not allowed to contact your biological mother.  This aggravated your grief and sense of abandonment when your mother died around 2004-2005 when you were only 10 or 11 years of age.  At the age of 15, you ran away from your foster placement and were then placed into various residential and foster care placements until the age of 18. 

37In effect you have had an upbringing devoid of stability and comfort.  Furthermore you have had extremely limited educational opportunities having only completed Year 7.  You have never completed any significant period of employment but expressed to Dr Cunningham your desire to work in a trade.

38It was whilst you first began living in residential care that you used alcohol, cannabis, amphetamine and ecstasy.  You told Dr Cunningham that this offence was drug related and that in the lead up to the offending you were active in the drug scene.  Apparently the motive for the offence was that you and your co-accused, Gretelianos, found yourselves in drug related debt to the same individual.  The commission of this offence was devised as the solution. 

39In Dr Cunningham's opinion you present with a diagnosis of post-traumatic stress disorder (PTSD).  In his opinion, your disorder stems from the abandonment, neglect and abuse in your childhood environment.  In his opinion your PTSD is severe, incorporating symptoms of disassociation.  In Dr Cunningham's opinion your drug abuse and association with negative peers are the main contributors to your offending behaviour.  He views you as an ongoing risk of re-offending as long as your trauma remains untreated, as you will abuse drugs and continue to associate with negative peers.  He views your prospects for rehabilitation as being dependent on your engagement with treatment providers and the ability to maintain stable housing and employment while abstaining from drug use and criminal peer associations.

40As I have already articulated your prospects for rehabilitation in light of your recent and extended criminal history remain guarded.  Furthermore, not surprisingly, given your wretched upbringing, you have very limited family support.  I was told by your counsel that you do have the support of a half-brother and half-sister; however, neither of them were in attendance on either of the two days of the plea in mitigation.

41As I have already noted your personal history is undoubtedly sad.  However your personal circumstances do not override the seriousness of the offending here.  Furthermore, the weight to be given to your relative youth at the time of the offending is reduced by reference to the gravity of the offence of armed robbery.

42The basic purposes for which a court may impose a sentence are just punishment, general deterrence, 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 the victim, if any.

43I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society. 

44In your case, as I have stated, this is grave offending warranting condign punishment.  However, in sentencing you I take account of the following factors in mitigation: your relative youth at the time; your plea of guilty; your disadvantaged upbringing; and the fact that you have some insight into your offending behaviour. 

45Please stand up, Mr Hodgson.

46In relation to the charge of armed robbery you are convicted and sentenced to five years (5) and five (5) months' imprisonment.  I fix a minimum non-parole period of three (3) years and four (4) months. 

47Pursuant to s18(4) of the Sentencing Act I declare that 612 days be reckoned as served under the sentence and I cause that declaration to be noted in the records of the court. 

48For the purposes of s6AAA of the Sentencing Act but for your plea of guilty
I would have imposed a sentence of seven (7) years' imprisonment with a non-parole period of five (5) years.  Yes, you may be seated. 

49MR McCONAGHY:  There's nothing further, Your Honour.

50HER HONOUR:  Yes, adjourn the court thank you.

51MR MANN:  The court pleases.

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