Director of Public Prosecutions v Hoober
[2023] VCC 615
•18 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SETH HOOBER |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2023 | |
DATE OF SENTENCE: | 18 April 2023 | |
CASE MAY BE CITED AS: | DPP v Hoober | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 615 | |
REASONS FOR SENTENCE
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Subject:Criminal Law. Sentence upon plea of guilty.
Catchwords: Armed Robbery - Offence committed in company - History of drugs,
alcohol abuse and social anxieties - Prior criminal history – Covid-
19 delay - Evidence of impaired mental functioning – Good
prospects of rehabilitation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Criminal Procedure Act
2009; Mental Health Act 2014.
Cases Cited:DPP v Bowen [2021] VSCA 355; Worboyes v The Queen [2021]
VSCA 169.
Sentence: Community Corrections Order for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Ms K. Marshall |
| For the Accused | Mr J. Lavery | Ms A. Sutherland |
HIS HONOUR:
1 Seth Hoober, you pleaded guilty to one charge of armed robbery.
2 The circumstances of your offending are set out in a prosecution opening which was exhibited and accepted as agreed facts. I will summarise them briefly.
3
On 2 November 2019, you were 19 years of age, you are now 22. At the time of the offending, you were living in Maryborough with your half-brother
Brandon Oxborough, and Tyla Oxborough your sister were living in
Williams Landing. Brandon was 22 years old and bound to a wheelchair,
Tyla was 24 years old.
4 On that day, Brandon, Tyla, yourself and one other Justin Siaoloa were together at the Williams Landing residence. A plan was devised whereby Tyla would use her Facebook profile to make contact with a random male and convince him to attend the premises for purposes of a sexual encounter. The random male would then be robbed.
5 At approximately 7.30 the Facebook profile of Tyla added the complainant, Steven Atkins as a friend and struck up a conversation. The topic turned sexual in nature, after a few hours Atkins was invited over to the Williams Landing address. A request was also made that Atkins bring drugs over for you to share.
6 He was instructed to park in the rear laneway to the house and to park behind another vehicle. At approximately 10.21 am Atkins arrived and parked as instructed. He observed that the rear garage roller door was up around waist height. He entered the garage area where he was greeted by Tyla. Atkins then kissed her on the cheek and noticed that she not wearing any clothes underneath her coat.
7
The two sat down on a couch in the garage and began talking. Brandon,
Justin Siaoloa and you went to Atkins' vehicle, engaged in a discussion and looked inside the vehicle. After approximately three or four minutes, following Atkins' arrival the roller door to the laneway closed and the roller door closest to the house opened completely.
8
After the roller door opened, Brandon, Siaoloa and you entered the garage and surrounded Atkin, Brandon was in his wheelchair. You were wearing a hooded jumper pulled over your head, although Atkins could see your face.
Brandon, Siaoloa and you surrounded Atkins and in the presence of Atkins, Brandon spoke to him as to Tyla about what he would do to the next guy that she brought over. Brandon left the garage shortly after the three of you came in. Sorry that should be Tyla, left the garage shortly after the three men came in.
9 Atkins then got up to leave, but Brandon Oxborough stated, 'You're not going anywhere, maybe I'll cap you with my gun', and asked Atkins how much money he had on him. He told Atkins he could keep his car if he transferred a thousand dollars. Atkins, logged in to his ANZ banking phone application to show that he had sufficient funds to meet the demand. A demand was made to call - for Atkins to call a friend to transfer the money and he attempted to call his mother Leeann Zuk but was prevented from making the call.
10 At that point one of you extended a black extendable baton and gestured towards the victim in a threatening manner. The baton was approximately a metre long when extended and one of you said words to the effect that Atkins would be 'fucked' if he did not give you the money.
11 Brandon then demanded that Atkins handover his Samsung Galaxy S3 Smartwatch. In fear of being assaulted, Atkins complied with the demand and handed over his Smartwatch. Brandon Oxborough then told Atkins to give him his mobile phone. Atkins took his mobile phone from his pocket and it was smashed from his hand. Brandon asked what else Atkins had in his pockets, and whilst emptying his pockets, Atkins dropped the key to his vehicle on the floor, a 2013 Ford Ranger Utility, which was picked up by Siaoloa. He exited the garage and proceeded to get into the driver's seat of Atkins' vehicle and then drove away in the vehicle.
12 At the time the vehicle contained various tools, a wallet with Atkins' personal identification documents, bankcards and business cards an Alienware R14 laptop computer, and Apple iPad mini 3 and four large storage containers with clothes and shoes.
13 After Siaoloa left, you and Brandon stood either side of Atkins and continued to demand money from him. Atkins exited the rear garage door and began walking away. You followed him for about 10 metres before stopping. Brandon followed Atkins for a few minutes while speaking to Siaoloa on the phone. He asked Atkins to provide the passcode to the Apple iPad mini which was in the car, and Atkins provided the passcode. Atkins then was instructed to wait on the corner of the main road for you to return his vehicle. He waited, but the vehicle was not returned and then he went to the train station and travelled to a friend's house before calling his mother.
14 On 4 November 2019 a search warrant was executed at the Williams Landing address and you and Brandon Oxborough were arrested there and the following items were located. The extendable baton used in the offending was located underneath couch cushions in the living room, Atkins' mobile phone was located in Brandon Oxborough's bedroom. The Apple Mac computer was in the garage and messages sent from Tyla Oxborough's Facebook account were located on the computer.
15 You were interviewed by the police on 4 November 2019 and made the following comments that you had heard Justin Siaoloa saying to your brother, 'We're going to roll this cunt.' And that he was setting up a bloke on his sister's Facebook, that you always look out for your brother because he's in a wheelchair, and so you have got to be there for him. That you walked out as Justin and your brother were telling the complainant to hand over any drugs he had and you stood next to your brother.
16
The complainant dropped his key to the ground and Justin picked it up and jumped the fence and hopped into the car. Then it was Justin that was telling your brother what was going on. Brandon was your brother, or who is your
half-brother. That you had known Justin for a few days and he was a friend of your sister's. You were the little brother and you have learned what they planned, when you learned what the planned, you could not do anything to stop what was going to happen, and that it was Justin that was holding the extendable baton that was now in police possession.
17 You believed the person being robbed might fight back and you accompanied your brother to the - through the armed robbery to look after him. You did not say anything you just stood back and that you expected your DNA to be on the baton because, 'I just touch it, move it, I don't know'.
18 Your co-accused have been sentenced in respect of this matter with you being the last co-offender falling to be sentenced. In December of 2021 I sentenced Tyla Oxborough of one charge of robbery, to be the subject of a Community Corrections Order with a hundred hours unpaid community work, which I am currently supervising by way of judicial monitoring.
19 On 1 December 2021, I sentenced Justin Siaoloa, to the effective sentence of seven months' imprisonment for armed robbery and related bail offences, with pre-sentence detention of seven months.
20 On 20 October 2021, I sentenced Brandon Oxborough to nine months' imprisonment for armed robbery and obtaining a financial advantage by deception. No formal victim impact statement was received by the court, however it is reasonable to infer that the victim Atkins, would have been fearful and traumatised and humiliated by his ordeal in these circumstances.
21 He was fortunate that he was not further subjected to physical violence or injury. You were part of a group arrayed together him at close quarters, who used threats and intimidation with the presence of a weapon. He was restrained and prevented from calling for help and his personal items were stolen.
22 Such offending may cause enduring effect on the victim's life and most aspect of their social health, vocational and personal experience. That is why armed robbery carries such a high maximum term of imprisonment, by that maximum the legislators have indicated the gravity of such conduct and the penalty reflects the fear in consternation such offending causes the community. It is conduct which calls for deterrence, denunciation and community protection.
23 By the imposition of just punishment armed robbery is a Category 2 offence under s75A of the Crimes Act. It is an offence committed in company. In relation to the provision of the Sentencing Act s5(2HA) provides that the court must impose a sentence of imprisonment, excluding a Community Corrections Order, unless one of the circumstances outlined are met, that is under s5(2HA) (c) or (e). Sub-sections (1) and (2) of sub-s(c) concerned whether the offender at the time of the offending and impaired mental functioning causally linked to the commission of the offence, substantially materially reducing his moral culpability or (2) which would result in there being subject to substantially and materially greater than ordinary burden or risks of imprisonment.
24 Sub-section(e) provides that the court must impose a sentence of imprisonment, not including or incorporating a Community Corrections Order, unless there are substantial and compelling circumstances that are exceptional and justify not making an order of that type.
25
Section5(2HC) provides for matters which the court must pay regard to, or not have regard to, or give less weight in making a determination under sub-s(e). Section5(2I) provides what the court must have regard to in determining whether there are substantial and compelling circumstances under that
sub-section. That is parliament's intention in sentencing an offender to Category 2 offence.
26 Sub-section(2I) (a) and (b), whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
27 As to your role in the armed robbery, I have described how the group acted together in pursuit of a foolish intent to rob, however it is clear when one breaks down the participation of the participants, that you had the least active involvement of all. Armed robbery may be committed in a variety of ways, along a large spectrum of seriousness and gravity and in my view, although not at the lowest level, this armed robbery lies towards the lower end of that spectrum, particularly when I go to assess the moral culpability which I should assign to your participation.
28 In my view, your participation was even less active than Tyla Oxborough who was the bait for the victim. I accept you were present out of misguided loyalty and concern for your half-brother Brandon because he's in a wheelchair, and once you were present, you acted out of this misplaced loyalty. It was not contended by the prosecution that it was you who wielded the baton involved, but that by your presence you were part of this enterprise which included threats, intimidation, and which was at some point accompanied by the production of the extended baton.
29 You are 22 years of age, at the time of the offending you were 19 years old and I accept that as you told the police, you were the little brother and that you felt you could not do anything to stop what was going to happen and what was happening.
30 You have been a carer for Brandon after the motorcycle accident of 2017, which left him a paraplegic and wheelchair bound. You are currently unemployed and received benefits from Centrelink. This matter proceeded before me by way of an application for a sentence indication from the court under s207 of the Criminal Procedure Act 2009. This was sought after obtaining the consent of the prosecution even though by the time the matter came before me, this consent requirement had been deleted from the relevant legislation.
31 The application followed a contested committal in January 2021, which were followed by a psychiatric assessment by Dr Adam Deacon, a Consultant Psychiatrist. The factual basis proposed in the submissions to the Director is that reflected in the summary of prosecution opening dated 15 March 2021, upon which I relied to summarise the circumstances of the offending, and on that basis, you indicated that you would plead guilty to armed robbery, should a favourable sentence indication.
32 The submissions were presented, primarily focused on the psychiatric reports of Dr Deacon, which I will summarise in a moment, and a few other reports and references. Having provided a sentence indication you then pleaded guilty before me in March of this year. I should note that the sentence indication was first heard in March 2022, but was adjourned part-heard to obtain a further updated report from Dr Deacon which was only ready in Mid-November 2022.
33
The defence sought to rely on the previously mentioned provisions in the Sentencing Act, to overcome the hurdle of the offences categorisation and its consequent disposition of imprisonment. Specifically the provisions of
sub-s(c)(2), which provide as I outlined above. Alternatively, the defence submitted the circumstances here prevailing were such as to not making an order for imprisonment under sub-s(e). I note for completeness that s5(2HA) provides that (2H) (c)(1) does not apply to impaired mental functioning caused substantially by self-induced intoxication, but this qualification does not apply to (c)(2).
34 The prosecution submitted that neither of these provisions could be met and made operational on the evidence arguing that the material was not sufficient to enliven the exception to either sub-s(c) or (e). It conceded that the material would likely merely enliven the 5th and 6th limb of Verdins when it came to determining the period of reclusion, but that it did not go further than that.
35 It is my view that in the circumstances of this case, the material available to the court falls short of satisfying the very high bar which sub-s(e) provides for. The Court of Appeal authority established that the test in this sub-section providing as it does mandatory sentencing, creates a requirement that is almost impossible to satisfy. See DPP v Bowen [2021] VSCA 355.
36 However, the criteria outlined in sub-s(c)(2), is a different matter. For purposes of the exception in that sub-section, the Act defines impaired mental functioning to mean any of five types of conditions. See s(2HB).
37
The type of condition that is presently relevant is mental illness within the meaning of the Mental Health Act 2014 s10A (1) definition sub-s(a) of impaired mental functioning, which is a medical condition, that is characterised by a significant disturbance of thought, mood, perception or memory, see the
Mental Health Act2014 s4(1).
38 Sub-section(c)(2) by its term requires the offender to prove that he has impaired mental functioning, that is that the offender has a mental illness. The exception looks to the future insofar as it requires proof of the likely effect of imprisonment on the offender. There must be however, an extent mental illness established at the time of the sentence. That is, that at the time of sentencing on the balance of probabilities the court needs to be satisfied that the offender has a mental illness which would result in his being subject to a substantially and materially greater than ordinary burden of risk of imprisonment.
39
As I previously indicated, the main material upon which the offender relying to meet the burden of proof upon him, where the reports of Dr Adam Deacon, a very experienced consultant psychiatrist. The first report was dated
6 October 2021. Your mental state at that first assessment was said to be reflective of intelligence of low borderline. You reported ongoing experiences consistent with psychosis in the form of persecutory delusions and auditory hallucinations, where you've heard muffled conversations. You reported compliance with mental health service treatment. Dr Deacon summarised your family background and personal history.
40 You were living with your mother, half-sister and half-brother who was wheelchair bound. You had adopted an active role of carer for him. Your parents separated when aged five. You enjoyed a good relationship with your father except when he was violent and drunk. You had a good relationship with your mother.
41 In 2021, you had experienced a series of deaths in the family, including your grandmother, an uncle and a friend. Your early development was marked by learning difficulties in a number of schools. You left school in Year 8 and completed Year 9 and 10 at VCAL. You had limited work history and incomplete certificate of further education.
42 In terms of relationship, you had a three-year relationship which resulted in charges in December 2020 resulting in a Community Corrections Order. That matter was not included in your prior history but is part of your antecedence. In the context of prior history, the only matter is a Children's Court 2018 matter which included some dishonesty offences, resisting police and possession of methamphetamine, when without conviction you entered into a good behaviour bond to engage in YSAS treatment.
43 Dr Deacon reported on your alcohol and drug history. You regularly drank from age 16 and smoked cannabis from age 13, resulting in anxiety and abstinence. Between ages 14-21, you smoked methamphetamine. Dr Deacon obtained a history of social anxieties since childhood. In 2019, you recalled seeing people following you, believing people were hiding in walls and roofs, this may explain your sense of protectiveness and hypervigilance for your half-brother and his welfare at the time of the offending.
44 You said at the time of the offence, you were experiencing paranoia. Later in around 2021, you were worried you were being monitored by Russian and Chinese in a matrix conspiracy. You heard whispering voices and that you were being stalked. A few months before the first assessment by Dr Deacon in September 21, you engaged with psychiatric assessment and treatment, when you informed your parents the secret society were after you. You also thought your grandfather wanted to kill you.
45
In May 2021, you were admitted as a voluntary patient to Ballarat Psychiatric Services and diagnosed with a psychotic disorder. You were given
anti-psychotic medication and anti-depressant medication. You received weekly home visits from local mental health services and at that time file to which Dr Deacon referred, mentioned being followed by people, receiving messages phone and TV, and hearing voices. At that time the diagnosis was by reference to drug-induced psychosis and generalised anxiety disorder. But the differential diagnosis including an enduring psychotic disorder, which included paranoia, being monitored, receiving messages by phone and TV and intrusive on conspiratorial themes.
46 Then in late June 2021 you were admitted to an inpatient psychiatric unit. The voluminous discharge papers which were tendered the court, set out that you, 'Appeared to have a mental illness with psychotic systems', including paranoid ideation, auditory hallucinations, increasing suicidal ideation with current planning necessitating compulsory treatment. In July your mental state stabilised. The notes as to this period mention a diagnosis of borderline schizophrenia and that further assessment was required to determine if there was a standalone psychiatric illness underlying.
47 It was noted that you remained vulnerable to further deterioration of your mental state and prescribed Elanzepine and Escitalopram. The need for an assessment for schizophrenia and bipolar disorder was referred also in CISP report provided to both Dr Deacon and the court. Based on the persistence of psychiatric symptoms by and the cessation of illicit drugs. Dr Deacon opined a likely diagnosis of schizophrenia. Although he stated that your use of methamphetamine and the period of the armed robbery makes a drug-induced psychosis the more likely diagnosis at the time of the offending, he stated,
'That it can be now identified to be the precursor to an enduring psychotic disorder'.
48 He then added,
'Mr Hoober would likely experience a custodial setting as more onerous than a person with stable mental health. He could also experience the deterioration of his mental health in the custodial setting'.
49 He wrote that you were an anxious and insecure young man who continued to be troubled by psychotic symptoms.
50 In July 2022, Dr Deacon provided a second report, having summarised again the conclusions from the admissions to Ballarat Psychiatric Service in 2021, he noted his opinion expressed in the first report and added that an enduring psychotic disorder could not definitely be excluded and expressed the need for an updated review in your mental state. Dr Deacon thought a further assessment was required because if you had fully recovered from your psychosis, that you had previously stated, you may not experience prison as more onerous than others without your mental health history.
51 Alternatively, if you had continued to experience psychotic symptoms commensurate with an enduring illness, you would likely experience prison as more onerous. He stated clearly,
'Prisoners with active psychotic illness commonly experience prison as substantially and materially greater than the ordinary burden of risks of imprisonment'.
52 Clearly, Dr Deacon is aware of the relevant provisions of the Act by the use of the language just mentioned. His third supplementary report followed and assessment conducted in November 2022. I should say that a criticism was made of Dr Deacon's conclusions because he relied upon your reports as to your mental state. And the prosecution sought to diminish the weight of his opinion and findings because of this mechanism.
53 I regret this criticism, experienced psychiatrists, particularly those who have assessed a person over a number of times, and have reference to other persons who know the subject well, like your mother, and they have experience in the assessment evaluation of self-reports without any mention of any reliability issue or lack thereof, entitled me to place reliance on such an assessment to be persuaded to the required standard.
54
Dr Deakin was not required to attend to be cross-examined and did not report in any sense that you had provided him with an unreliable false account. He summarised your current situation and that you continued to experience
low-grade psychotic symptoms in the form of paranoia and auditory hallucinations.
55 You elected to almost always stay at home, had no employment since last assessed in October 21, feel anxiety at being in a public setting, continued to hear whispering voices. Dr Deakin's concluded that despite being illicit-drug free for well over a year, and consistently taking anti-psychotic medication, you continued to be afflicted with psychiatric symptoms and psychotic symptoms.
'It is most likely [he wrote], that Mr Hoober has an enduring psychotic disorder likely schizophrenia, rather than a drug-induced psychosis'.
56 Your symptoms have persisted for well over a year and well beyond the expected time period associated with drug use. He then again stated clearly,
'Mr Hoober would likely experience prison as more onerous than a person with stable mental health. It is possible that a prison setting could contribute to a deterioration of his mental health'.
57 In my view the evidence of Dr Deacon establishes on the balance of probabilities that at the time of sentencing you have impaired mental functioning as a result of his diagnosis and he has expressed that there is an appreciable risk that your mental state could deteriorate under the circumstances of reclusion. As a result it is my opinion that your impaired mental functioning would result in you being subjected to significantly more than the ordinary burden or risks of imprisonment, and that these matters have been established as required for the application of s5(2H)(c)(2) of the Sentencing Act.
58 Having taken your low moral culpability and lower objective gravity of your offending into account and having considered your personal circumstances and having taken into account your plea of guilty and the delay involved in your sentencing, taking those things into account I consider that the required degrees of just punishment, deterrence, denunciation and community protection, are properly and appropriately met by a Community Corrections Order.
59 The matters in mitigation that is your relatively priors, your mental health condition which in my view, enlivens the Verdins limbs in 5 and 6. Your youth now and at the time of your offending brings prominence - to prominence your rehabilitation as a primary matter to be encouraged by the sentence. I consider that your prospects of rehabilitation are good, subject to your continued persistence in abstaining from drugs and in maintaining your medication regime for your mental health.
60 The time at which your plea was made is a time of pandemic with the prospect of incarceration, but more importantly at a time, when the Court of Appeal noted in Worboyes, 'It has caused disruption and delay in the criminal justice system'. It carries therefore with it a significant utilitarian value which I take into account. I accept that it is evidence of remorse on your part.
61 I mentioned the CISP reports that were tendered to the court which I take into account as containing positive indications that you will take up the opportunities offered on the Community Corrections Order. I have also taken into account the references by your mother and Codie Hart from Anglicare. I had you assessed for a Community Corrections Order, you were found to be suitable. The assessment report was accompanied by a Mental Health Community Corrections Screening Program report.
62 I intend to place you on a Community Corrections Order with a conviction for two years, which will involve unpaid community work. Drug assessment and treatment and rehabilitation participation in programs to reduce re-offending and supervision. You will perform 200 hours of community work, 60 hours of treatment will be credited to your work hours.
63 But for your plea I would have sentenced you to six months' imprisonment. I will sign the forfeiture order which was handed up to me in completing this sentence.
64 Mr Hoober I have put you on a Community Corrections Order, you have to report to Community Corrections where you're living promptly. I noted that you weren't here yesterday, that's not really a great start. But you need to attend to appointments, you need to go to supervision. The best way of not breaking this order is to stay in contact with Corrections at all times, do you understand?
65 OFFENDER: Yes, Your Honour.
66 HIS HONOUR: They are there to assist you with what you need to do.
67 OFFENDER: Yep.
68 HIS HONOUR: But you need not to disengage, you need to engage with them, do you understand what I'm saying?
69 OFFENDER: Yep.
70 HIS HONOUR: And you certainly need to continue to take your medication.
71 OFFENDER: Yep.
72 HIS HONOUR: If you do that then I think that you will probably be all right. I'm confident that if you do those two things that you will continue to be able to stay in the community.
73 OFFENDER: Yes, Your Honour.
74 HIS HONOUR: You'll have some paperwork to sign, all right?
75 OFFENDER: Yep.
76 HIS HONOUR: Just come forward and sit behind Mr Lavery. I'll just stand down while that's happening. Thank you.
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