Director of Public Prosecutions v Hollingsworth
[2023] VCC 616
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 22-02212
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOLLINGSWORTH, LUKE |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2023 | |
DATE OF SENTENCE: | 14 April 2023 | |
CASE MAY BE CITED AS: | DPP v Hollingsworth | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 616 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – Serious violent offender – General deterrence – Intimidation – Spontaneous
Legislation Cited: S31D Crimes Act 1958 (Vic) – S6AAA, S15 Sentencing Act 1991 (Vic)
Cases Cited: DPP v Tierney [2020] VCC 1175 - Worboyes [2021] VSCA 169
Sentence: Five months imprisonment, two months to be served cumulatively upon the current sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Ms. S McNeil |
| For the Accused | Ms J. McGarvie | Mr K. McLaughlin |
HIS HONOUR:
1 This matter comes before me by way of a plea this morning, to an offence under S31D of the Crimes Act. The matter is serious by way of the fact of that the maximum applicable for such crime is one of 10 years and/or with 1200 penalty units.
2 The circumstances are set out in the facts detailed in Exhibit A, which is a summary of the prosecution opening, and Ms McGarvie agreed that, for the purposes of sentencing those facts are accepted.
3 The victim impact statement which is set out in Exhibit D indicates the concern of the victim in this matter, such concern is appropriate given his occupation and the terms of the intimidation that took place on the day of the offence [11] – [12].
4 As has been reported in the one reference to that section by Ms McGarvie in DPP v Tierney [2020] VCC 1175, persons who are police officers are entitled to carry out such occupation without fear of intimidation.
5 The matters as expressed in the victim impact statement, given the understanding of the victim of Mr Hollingsworth and his priors, and given his history of serious offending, were not inappropriate.
6 As a result, as I detailed earlier the principles of general deterrence are particularly important and even more so when one takes into account that such comments were made in a curial situation. The prior offences of Mr Hollingsworth are concerning and it is noted that in the sentence of Judge Taft, you were sentenced as a serious violent offender. That said, there are matters that need to be taken into account which have been detailed by Ms McGarvie and in particular in her outline of plea submission, tendered as Exhibit 1.
7 I accept the background and personal circumstances that were referred to by Judge Taft in his sentencing remarks and in particular the matters detailed under Mental Health and detailed by Ms McGarvie in [8] and [9], as perhaps reasons for the outburst.
8 As to the gravity of the offending, I also accept that the offending was spontaneous, unsophisticated and of short duration. I also accept that no doubt having received, what can be seen as a substantial sentence, that such occurred in the heat of the moment and during an outburst of anger. It is not to excuse it, but to understand it. I do however, accept as genuine, the letter tendered by the defence from Mr Hollingsworth, Exhibit 2, in which he offers an apology, indicates sorrow for the manner in which he acted and indeed describes it as it was, 'a dumb action'.
9 It is noted as part of the other materials, the steps that he has been taking, while in gaol, and in particular the steps to assist in handling his anger. And I take those matters into account.
10 As to mitigation I accept the matters put by Ms McGarvie as to the early plea and the circumstances that led to this plea not being heard for some significant period of two and a half years, because of it going through the summary jurisdiction. I also note the substantial sentence and the time in custody, and while there's not substantial material as to current sentencing practice, I note the case of Tierney and the matters referred to by the Sentence Advisory Council.
11 I also note that while in gaol, not only has he had to endure the issues of COVID, which are ongoing, but Mr Hollingsworth also suffered a foot fracture of which he's still having difficulty with. I also accept the principles that apply generally to a plea of guilty, by way of indication of acceptance of responsibility and to facilitate the course of justice and in particular the reference to Worboyes, whereby this plea is entered during the currency of the epidemic and pandemic and greater weight is given therefore to the plea in such circumstances, especially when the plea is offered from the person actually serving gaol.
12
Taking all those matters into account, and the submissions of both parties, I have determined that the sentence that should be imposed is a period of
five months. In those circumstances, S14 will not be engaged. I order that of those five months, two months should be served cumulatively upon the sentence now being served. As I understand the operation of S15, that would mean that two months will be added to the aggregate period to be served, which I understand is now set at 31 June, by way of those two months being served first from this date.
13 And then the balance of the period which is set out in the aggregate term, would then be served. So, for clarity what I mean to ensure by way of this sentence, is that of the five months that Mr Hollingworth has been sentenced to for this offence, two months will be served cumulatively upon the current sentence. Yes, good luck Mr Hollingsworth.
14 OFFENDER: Thanks a lot, Your Honour.
15 HIS HONOUR: Thank you. And I thank counsel for their assistance.
16 MR McCARTHY: As the Court please, there's a 6AAA declaration required, Your Honour.
17 HIS HONOUR: Thank you, Mr Prosecutor. In regard to this matter, had the plea not been affected especially in the circumstances of this case, the sentence that I would have imposed is not five months, but would have been a period of seven months. I won't go further as to what would have been and would have not been concurrent.
18 MS McGARVIE: As Your Honour pleases.
19 MR McCARTHY: As the Court please.
20 HIS HONOUR: Thank you.
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