Director of Public Prosecutions v Hood

[2016] VCC 464

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00236

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE HOOD

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2016
DATE OF SENTENCE:	17 June 2016
CASE MAY BE CITED AS:	DPP v Hood
MEDIUM NEUTRAL CITATION:	[2016] VCC 464

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Kapitaniak	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Robert Davis Solicitors

HIS HONOUR:

1Lee Hood, on 21 August 2014, you were with a co-accused, Daniel Minahan, when you committed an armed robbery on Steven Stodkovic.  I sentenced
Mr Minahan on 19 August 2015, to a sentence of 12 months', with a two year community corrections order for the crime of armed robbery.  In addition to that single offence of armed robbery, you have pleaded guilty to a charge of theft and one of possession of a drug of dependence. 

2In respect of the armed robbery, I heard again this morning the prosecution summary of the facts.  It was tendered as an exhibit, and that exhibit will be attached to these reasons. 

3As I said, in Mr Minahan's case, there is no call for me to repeat all the facts in these reasons here.  However, what I said about the gravity of the crime in those sentencing reasons, does bear repeating. 

4I said in my reasons for sentence, when I imposed sentence on Mr Minahan, the following:  What I am required to do is assess the gravity or seriousness of what you did.  Factors that go to the seriousness of the crime were that you were with another man, that is, you were with Minahan, who was also armed. 

5You and your co-accused bailed the victim up in the driveway of a house that he was staying at.  He was entitled to feel safe at that place.  You took all he had, his backpack with electronic equipment, his tools, his shoes, his pants, the latter having an aspect of humiliation about it.  The threats that were made were violent.  The knives both of you had were dangerous and frightening. 

6The impact upon the victim is set out in his victim impact statement.  He is fearful and hypervigilant, that is, he is always looking over his shoulder and concerned when he goes out to see friends that something might go wrong.  He was really tossed by what happened to him on this occasion, and I take into account the emotional effect upon him.

7You, Mr Hood, are a 41 year old indigenous man.  You were born and raised in Gippsland.  Your early childhood was positive, then came the tragedy of your mother dying at a young age.  You were 11 at the time.  I have got no doubt that this has had an enduring effect upon you. 

8Your father worked full-time, but also has worked in welfare and in heritage roles.  He is well-known and respected in the Koori Court in Gippsland.  He continues to support you, despite your history of offending and drug abuse.  His support is important. 

9You struggled at school and sadly remain illiterate.  Your intelligence was tested by Mr Simmons in 2010.  It was not a full IQ assessment, but in his opinion, you fell into the lowest percentile in the community. 

10You have had a justice plan in 2011, but have not had services relating to your intellectual deficits at any other time.  This is regrettable and I hope it can be remedied.  But as I did with your co-accused, I take into account your low intelligence in accordance with the High Court decision in Muldrock, thus
I would temper denunciation because of your lowered capacity to make considered judgments.  I will also moderate the weight of deterrence because you are different and not an appropriate model to deter others. 

11I am mindful of the difficulties bedevilling indigenous men and apply those principles that have been most recently discussed by the High Court in the decision of Veen. 

12You have used drugs and drunk alcohol to excess all your life, commencing in your teenage years.  Alcohol and drugs have ruined almost every aspect of your life.  The only bright light being your ongoing relationship with your four children.  The relationship with their mother is over.  You have another partner and hope upon release to be reunited with her and possibly thereafter your younger children. 

13As to dealing with your drug and alcohol problems, Mr Simmons, whose report was dated but nonetheless still helpful, he set out the following:  "Over the years, Mr Hood has been involved in numerous treatment programs, including attending the Bridge Program in Warrnambool.  He has attended Galiamble about six or seven times and spent three months there on one occasion, although this was court ordered.  He has also completed 90 days at Chumbarrara at Bairnsdale, adding that he has completed most treatment programs that he's been referred to.  Mr Hood has attended counselling at Latrobe Community Health Centre in Morwell, as part of a CISP program and also undertaken a cannabis course on his own initiative in the past." 

14Despite all this, you have had many court appearances, including for armed robbery of a service station, which saw the County Court impose a two year sentence, wholly suspended.  That was a long time ago in 1997.  There also have been charges of robbery, aggravated burglary, intentionally cause injury and recklessly cause injury, threats to kill, extortion and many offences involving dishonesty, driving offences, drugs and street violence.  You have had community orders and suspended sentences and there have been breaches.  You have been sent to prison and have had one order setting a potential parole period in recent times.  In fact you were out of gaol for about six or so months at the most at the time when this armed robbery was committed. 

15I have been advised that you have a number of subsequent offences that are to be dealt with today in the Magistrates' Court.  But also in recent times the magistrate imposed upon you a six month community corrections order, which was breached immediately.  So, Mr Hood, I can come to no other conclusion, as sad as it is, that your history is a very bad one and it cannot be ignored or glossed over because of your disadvantages.

16I will temper the sentence that I will impose because of your disadvantages, but nonetheless, even with the ameliorations that I have spoken about, the weight to be accorded to denunciation and even to deterrence remains significant.  Your prospects of rehabilitation, although not completely extinguished, must be seen as dim. 

17In the end, Mr Hood, it is up to you.  It is not easy to put alcohol and drugs to one side.  Just take a seat.  You have got to do your best, otherwise you will just continually do sentences of imprisonment until your children will fade from your life, unfortunately.  Stick with it when you get out this time. 

18I keep in mind parity with your co-accused.  He was much younger and his history, although concerning, had many offences committed while he was a very young offender. 

19I have considered the Court of Appeal decision in Boulton v The Queen and your counsel's submission that a gaol term, combined with a community corrections order was the just and appropriate sentence.  In the end, even with all the moderations that I have applied, a sentence of imprisonment is required and one longer than will allow for a community corrections order.  I will allow for a parole period to help you return to the community, hopefully to stable accommodation and with a resolve to stay out of trouble, off drugs and alcohol. 

20Your plea of guilty has had the effect of lowering the sentences that I am about to impose.

21For committing the crime of armed robbery, you are sentenced to two years' and six months' imprisonment.  For committing the crime of theft, you are sentenced to seven days'.  For committing the crime of possession of a drug of dependence, being cannabis, you are convicted and discharged.

22All sentences are concurrent.  The sentence of two years' and six months' that I have imposed is the head sentence.  I order that you serve 16 months' in prison before being eligible for release on parole. 

23You have served time in prison.  Those days have been calculated and reckoned.  They are a total of 377 days, and I declare that this period of time be part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court, so that prison authorities are left in no doubt that you have already served 377 days of the sentence that
I have imposed. 

24Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of three years' and nine months', with
a minimum term of two years' and nine months'. 

25I make an order for disposal of the items that were sought to be disposed of by the prosecution.

26MS KAPITANIAK:  As the court pleases.

27MR BACKWELL:  If Your Honour pleases.   

28Is there any other matters?

29MS KAPITANIAK:  No, Your Honour.

30MR BACKWELL:  No, Sir. 

31HIS HONOUR:  Mr Hood, Mr Backwell will hopefully be able to have some time to talk to you to get you to see a magistrate today, if that is possible. 

32MR BACKWELL:  As Your Honour pleases. 

33HIS HONOUR:  It would be in everyone's interest that Mr Hood's matters be dealt with today.  Mr Hood, Mr Backwell will be able to calculate for you how much more you have got.

34OFFENDER:  Sorry, what was the sentence today?

35HIS HONOUR:  Yes.  It was two years' and six months', with a minimum term of 16 months'.  You have done 377 days.  That is a little over one year.  You have got a little under four months, as I calculate it. 

36OFFENDER:  Four months to go? 

37HIS HONOUR:  Do you understand?  No one can be more generous or merciful than that, in my view, but there it is. 

38OFFENDER:  I just don't believe why the sentence is so much, it's that long. 

39HIS HONOUR:  Thank you, Mr Hood.  Thank you, Mr Backwell for all your assistance. 

40MR BACKWELL:  Thank you, Your Honour.

41HIS HONOUR:  Thank you Ms Kapitaniak. 

42MS KAPITANIAK:  As the court pleases.

43HIS HONOUR:  Thank you.

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