Director of Public Prosecutions v Hood

[2017] VCC 878

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00268
CR 17-00269

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI HOOD
ANTHONY GEBHARDT

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 June 2017
DATE OF SENTENCE:	27 June 2017
CASE MAY BE CITED AS:	DPP v Hood & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 878

REASONS FOR SENTENCE
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Subject:Criminal law – sentence – armed robbery – Koori Court Division – powerful mitigating factors – application of principles in R v Morgan [2010] VSCA 15 – significant prior criminal history – parity – jail term imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	John Cain, Solicitor for Public Prosecutions
For Accused Hood	Mr D Cronin (Plea) Mr M. Sturges (Sentence)	Mathew White & Associates
For Accused Gebhardt	Mr R. Backwell	Victorian Aboriginal Legal Service

HER HONOUR:

1Ali Hood, you have pleaded guilty before me to one charge of armed robbery and a summary charge of commit indictable offence whilst on bail, and you have admitted your prior criminal record.

2Anthony Gebhardt, you too have pleaded guilty before me to one charge of armed robbery, and have admitted your prior criminal record.  I will now proceed to sentence you on the basis of the prosecution opening that was read out during the sentencing conversation.

3There we three co-offenders in respect to the armed robbery, namely
Carl Sudmeyer, Ali Hood and Anthony Gebhardt.  Another man,
Christopher Kaufusi, was involved in the same incident, but he participated at the end of the incident and was not charged in respect to the armed robbery.

4At the time of the offending, you were all living at the Gatwick Hotel, which is situated in Fitzroy Street, St Kilda.  Mr Sudmeyer and the victim, a man called Recep Karabas, were known to each other, but neither you Mr Hood nor you Mr Gebhardt knew the victim.

5Previously the victim had left his bike in the female toilets at the hotel, and was retrieving his bike when the offending occurred.  The context to this offending was that there had been a dispute about him selling drugs at the hotel and a dispute about the quality of some drugs that he had earlier sold to you, Mr Hood.

6I have viewed the CCTV footage of the incident, and that shows a physical confrontation between each of you and Mr Karabas and Mr Sudmeyer in the stairwell area outside the entrance to the female bathroom.  The incident took place at about 1.37 am on Saturday 10 September 2016.  Mr Sudmeyer was seen holding a machete by his side in his right hand.  He was joined by both of you.  Mr Gebhardt, you blocked the access to the stairs, and Mr Hood, you are off screen, standing blocking another doorway.  A discussion took place between the parties, and eventually Mr Karabas was forced into the nearby toilet cubicles.

7At some stage, Mr Karabas' bicycle was removed from him, and it is seen being taken out of the toilet area.  Mr Sudmeyer is seen pointing the machete directly at Mr Karabas.  Mr Hood, you are seen walking past Mr Sudmeyer to physically confront the victim, at which stage he is forced backwards into the bathroom.  Mr Gebhardt, you are seen standing up, moving closer to the victim.  Eventually Mr Karabas' bum bag with his mobile phone was removed by
Mr Hood, and that constitutes the facts of Charge 1, armed robbery.

8At around this time, Mr Kaufusi, another resident at the Gatwick Hotel, walked up and stood behind you, Mr Gebhardt, in the bathroom doorway, and shone a torch into the area.  Mr Hood, you began to punch the victim, and Mr Karabas tried to grab the metal wrench that was in your hand.  Mr Sudmeyer dropped his machete and started to punch Mr Karabas.  Mr Karabas managed to push you both away, and then picked up the machete from the floor.  He ran into the toilet cubicle.  He panicked and used the machete to smash a number of glass louvers covering the toilet window.  He then crawled out of the window and slipped on the pipe he was balancing on, falling some five to seven metres to the ground, as a consequence of which he suffered serious injury.  After the fall, Mr Gebhardt, you are seen on the CCTV footage coming out of the bathroom in possession of Mr Karabas' bum bag.

9In sentencing you both, I make it clear that you are not being sentenced for the serious injury suffered by the victim inflicted when he slipped from the downpipe.  The Crown accepts that the armed robbery was not a substantial and contributing cause to the fall.  That information was provided to the court as background or context material only.

10The maximum penalty for armed robbery is 25 years' imprisonment, and that is one measure of its seriousness.  The victim Mr Karabas has declined to provide a victim impact statement, however having regard to the circumstances of this offending, as is evidenced by the CCTV footage, I am satisfied that it would have been terrifying for him to have been surrounded by three men, such as yourselves and Mr Sudmeyer, in such a menacing and threatening manner.

11The maximum penalty for the summary charge of committing an indictable offence whilst on bail is 30 penalty units, or three months' imprisonment. 

12On 14 June 2017, Mr Sudmeyer was convicted and sentenced by this court on one charge of armed robbery to three years' imprisonment, and in respect to a summary charge of commit indictable offence whilst on bail, he was convicted and sentenced to two months' imprisonment, one month of that sentence was cumulative upon the sentence imposed in respect to the armed robbery charge, making a total effective sentence of three years and one month, with a non-parole period fixed of 18 months.

13Mr Sudmeyer is aged 27.  He had a history of prior criminal convictions that were particularly relevant.  That is, convictions for armed robbery, attempted armed robbery, robbery, recklessly causing injury, threats to inflict serious injury, and committing an indictable offence whilst on bail.  He has had a number of dispositions imposed in the past, including Community Based Orders with justice plans, Community Correction Orders, and he too has undergone gaol sentences.

14In sentencing you both, I consider that you each played an active role in the offending.  I accept Mr Sudmeyer was the original aggressor, and he was armed with a machete.  Mr Hood, you were armed with a metal wrench.  Each of you were aware of those weapons, and whilst Mr Sudmeyer was the main aggressor initially, each of you went ahead and participated in this armed robbery.  You were all behaving in a menacing and threatening manner towards the victim, and therefore the sentence to be imposed upon you for the armed robbery will be similar to the one imposed on Mr Sudmeyer.

15However, I have had regard to differences in your prior criminal histories, and also the impact of your documented intellectual impairments that have significantly impacted upon your decision to participate in this offending.

16Overall, I consider the armed robbery to be a low-range, mid-level example of this serious offence. 

17Mr Hood, you have in the past been assessed by Isobella Walters, a neuropsychologist. In 2012 she confirmed on testing that you are in the lowest two per cent of the population on IQ quotient, and you suffer from an acquired brain injury with impaired memory.

18Mr Gebhardt, you have been assessed by Bernard Healey in 2017 as having a full-scale IQ of 63.  He says that you are significantly impaired intellectually, and he places you in the first percentile, where 99 per cent of people your age would perform better, and he considers that your condition may well be congenital in origin, and would have been exacerbated by chroming from age 12.

19Part of your intellectual impairment is that you have great difficulties assessing situations of danger of becoming involved in offending with others, or assessing the consequences of your actions.

20I have taken into account the fact that you both have documented intellectual impairments of that severity, and I have therefore, insofar as the principles in Muldrock[1] apply, reduced your sentence to take into account a reduction in moral culpability and moderation of both general and specific deterrence.  And further I have recognised, having regard to your situations, that for you both, your time in prison will be more burdensome.

[1]Muldrock v The Queen [2011] HCA 39.

21You both have indigenous backgrounds, and an important aspect of both your cases is that you both consented to having your charges heard in the Koori Court division, and in doing so you agreed to participate in the sentencing conversation that involves appearing before Elders and Respected Persons from the Koori community.  The Court of Appeal in Victoria in Morgan[2] has recognised that the sentencing conversation in the Koori Court is designed to further reform Aboriginal offenders.  Participation in such a process is not easy, indeed it is very challenging, and your active participation in the process is a factor that does mitigate punishment.  It is obvious to me, from the way that you both participated, that you were both sorry for what you had done, and that you now have some insight into your offending behaviour.

[2]The Queen v Morgan [2010] VSCA 15.

22I shall now turn to each of your personal history and backgrounds, and I will briefly describe them.  You are both aged 29.  You were both 28 at the time of the offending.

23Mr Hood, you were arrested on 12 December 2016, you made no formal admissions when interviewed. You were supported during the sentencing conversation by your long-term partner, Holly.  You were very respectful and willingly participated in the process.  You openly acknowledged your guilt, and agreed that you behaved in a manner that was not acceptable.

24Since you have been on remand, you have reflected on your offending behaviour.  You told the court that you had thought a lot about what you did and what you want and need to do to change your behaviour in the future.

25You openly apologised to the victim for your behaviour.  You accepted the strong comments that were made to you by both the elders, who emphasised to you that what you did was very disturbing.  However, they both acknowledged that you are still relatively young, you are a person who has some real potential, and in the future you need to deal with your mental health issues, anger management and drug issues.

26Your childhood was characterised by tragic and traumatic events, and I have taken into account the detail set out in the comprehensive report of
Lee Minton, psychologist.  I do not propose to repeat that in full, but your mother was tragically killed when struck by a train when you were only three.  Your father, who is not a person who is known to you, is believed to be dead.  Both you and your sister Kathy were placed in an orphanage, and ultimately adopted at around the age of eight or nine. I believe that you were then taken to live in the Latrobe Valley.  There have been many, many challenges in respect to your life over the years, and you were placed in care at an early age, with a lot of transience ever since. You had 79 different care and foster placements from about age ten.

27I have already acknowledged your intellectual impairment and the difficulties that that encompasses.  Your disadvantage suffered during your formative years has been given full weight in mitigation of your sentence.

28You now have little to do with either your sister or your adoptive parents.  Due to the effects of chroming and drug addictions which started sadly at a very tender age, you came into the criminal justice system at a young age.  You were held in detention at age 17 in the juvenile justice system, and since then you have been regularly dealt with by the courts, spending time in adult gaol.

29Some of your prior convictions are particularly relevant. You have convictions for recklessly cause serious injury, assault in company in 2005, false imprisonment, intentionally cause injury in 2005, robbery and violence against the person 2010, recklessly cause injury 2011, unlawful assault, make threat to kill, theft 2012, and recklessly cause serious injury 2013.  It is obvious that you do have difficulty managing anger, and that is particularly fuelled by taking drugs.  When involved in this offending, you had separated from Holly and you were living in the Gatwick, indulging in taking methamphetamine, heroin and other drugs, and mixing with other known drug users.

30Currently, you recognise it is important that you remain abstinent, and there is a need for you to address your mental health issues in the future.  You are a person who has been assessed as functionally illiterate, and there is some evidence of an acquired brain injury.  Nevertheless, it was demonstrated in the conversation that you said that you knew what is right and what is wrong, and you admitted that what you did on this occasion was wrong.

31You entered a plea of guilty at an early stage.  Your lawyers made an offer to settle before the contested committal hearing in February of 2017.  There is utility in your plea, you spared the victim the further trauma of having to come to court to give evidence at your trial, and you have spared the State the expense and inconvenience of a trial and therefore you have facilitated justice and your sentence will be discounted accordingly.  I accept that through your expressed apology to the victim and your plea of guilty that you are genuinely remorseful.

32In sentencing you I have had regard to the serious nature of the offending, and I have noted that another aggravating feature was that the offending was committed whilst you were on bail.

33I have had regard to your rehabilitation prospects.  Given your present attitude, clear drug screens, the completion of the numerous programs that you have undertaken involving drug treatment, education and counselling whilst on remand, I consider that there is still cause for hope for you. I have formed a view that you do have good prospects for the future for your rehabilitation.  But the important thing is on your release you will have to seek further assistance with your mental health issues, drug addictions and anger management issues.

34You are fortunate to have the continued support of your partner Holly.  She visits you regularly in gaol.  She demonstrated her frustration at your behaviour, and indicated quite strongly to the court that she remained committed to a future relationship with you.  She wants to support your goal of remaining drug-free so that you break the repeated cycle of offending and going back to gaol.

35Holly has an older daughter Mia who calls you Dad, and there are two children that you have together, Malachi and Ali jnr.  For the future, you say that you want to be reunited with your children.  They are currently in foster care, and you write to them twice every month.  You plan to work with DHHS to reunite with them in the future, and ultimately you want to be a better role model for the children.

36Holly is currently making plans to secure housing, and it is intended that you will live together on your release. 

37Overall, having regard to the nature of the offending, the seriousness of the offending, and the other matters that I have referred to, I consider that a gaol term to be served is the most appropriate punishment, and I will announce the sentence once I have described Mr Gebhardt's personal circumstances.

38Mr Gebhardt, you were born in Moe.  You are one of two children.  You have an Aboriginal mother and a German father.  Your father left before you were born and you were raised by your mother as a single parent.  Both your father and sister now live in South Australia.  Your mother is in a nursing home in the Latrobe Valley.

39You have had a tragic background and one of significant disadvantage.  You were diagnosed with ADHD when you were ten.  You too tragically started chroming at a young age, and that has exacerbated your problems.  You are not literate, you have had no jobs in the past, and you have no real structure in your life.  You have very little by way of formal education.  You were asked to leave a special school before completing Grade 6.

40You have a long history of contact with the criminal justice system, and that was set out in Mr Healey's report that was tendered.  The juvenile offending was linked to both your intellectual impairment and also your problems with chroming at an early age.

41You came into contact with the adult justice system in 2007, and there are multiple appearances in court for various offences against the person, damaging property, resisting police, failure to comply with Community-Based Orders, aggravated burglaries and unlawful assault.  You have had some gaol terms in the past.  In particular, you were dealt with by His Honour Judge Smallwood at Latrobe Valley County Court on 3 April 2009 for an intentionally cause serious injury matter, for which you were gaoled.  In November of 2009, you were dealt with for recklessly causing injury at Latrobe Valley Magistrates' Court, for which you received a wholly-suspended gaol term.  Thereafter, you have had no further contact with the system in Victoria, but you do have two court attendances in South Australia in 2012 and 2013.  They were in relation to driving charges and failure to comply with bail conditions.  I have had regard to your past history and background in assessing your matter.

42In mitigation, I accept that you too entered an early plea of guilty, and that is also evidence of remorse.  There is utility in your plea.  You too have spared the victim of having to come to court to give evidence.  I accept that you now regret your involvement, and you are genuinely remorseful.  You have facilitated justice, so your sentence will be discounted.

43You have some positive things in your favour.  You have been drug-free since being held on remand.  You have managed to do some courses whilst in gaol, relating to food handling and emotional and social regulation. On your eventual release you plan to go to live in South Australia to be away from negative peers.

44I accept that your time in custody has been difficult by reason of your condition, and I have noted in particular the testing that was undertaken by
Mr Healey when he saw you, and that was on 28 January 2017, and he confirms your intellectual impairment. He noted that you did have (notwithstanding that the personality testing was to be interpreted with caution) a hypomanic trend linked to heightened excitability and associated impulsivity, in turn exacerbated by the effects of stimulant drugs, sociopathic trends deriving its contributions from problems with authority, and a measure of social alienation.

45Overall, I am cautious about your rehabilitation prospects, and guarded.  It is important for the future that the authorities put in place significant structural supports upon your eventual release.  It is essential that you are assisted to find suitable long-term accommodation, and that you also obtain assistance to deal with your drug addictions and the impact of your drug-taking over the years to help you to lead a more pro-law lifestyle.

46You do have available to you strong support within the Aboriginal community in Gippsland, but as has been stated by one of the Elders this morning, that will be dependent on you staying clean from drugs. 

47Ultimately I have come to the same conclusion as I did with Mr Hood, that the appropriate sentence is one of a gaol term to be immediately served.  I have had regard to all the relevant sentencing principles, your early pleas of guilty, and the other mitigating factors.  Overall, I must impose just sentence.

48Mr Hood, for your charge of armed robbery, you will be convicted and sentenced to 30 months' imprisonment, and on the summary charge of commit indictable offence on bail, you will be convicted to one month's imprisonment, and that is to be concurrent, and I fix a non-parole period of 15 months.

49I have fixed a non-parole that is shorter than it would have otherwise been because of your efforts and prospects of rehabilitation.  Are you clear with that?

50OFFENDER HOOD:  Yes I am.

51HER HONOUR:  Yes, thanks.  I make a declaration pursuant to s.6AAA but for your plea of guilty, I would have imposed a term of four years to serve two years and six months.  I declare that you have served 280 days – I believe that is the correct figure, presentence detention, and direct that that be entered into the records of the court, all right? You can have a seat now.

52Mr Gebhardt, on the one charge of armed robbery, you will be convicted and sentenced to 30 months' imprisonment with a non-parole period fixed at 15 months.  I have also fixed a non-parole period that is shorter than it would otherwise have been because of your efforts towards rehabilitation whilst you have been on remand, all right?

53I make a declaration pursuant to s.6AAA but for your plea of guilty I would have imposed a sentence of four years to serve two years and six months, and I declare that you have served 290 days' presentence detention and I direct that that be entered into the records of the court.

54All right, I think that covers everything?

55COUNSEL:  Yes Your Honour.

56HER HONOUR:  Yes, Mr Backwell, do you want to just go to the back and have a chat to your client, just to confirm with him the terms of the order so he understands it clearly.  He is having a bit of discussion there.  All okay?

57MR BACKWELL:  Your Honour, I will go downstairs and deal with it there.

58HER HONOUR:  All right, thank you.  All right, we can adjourn.

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