Director of Public Prosecutions v Hooper

[2013] VCC 1869

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01495

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYRONE HOOPER

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2013
CASE MAY BE CITED AS:	DPP v Hooper
MEDIUM NEUTRAL CITATION:	[2013] VCC 1869

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr Ayres
For the Accused	Mr D. Cronin

HER HONOUR:

1Tyrone Hooper, you have pleaded guilty to one charge of intentionally causing injury contrary to s.18 of the Crimes Act. The maximum penalty for this offence is ten years imprisonment. Further, you have pleaded guilty to one charge of recklessly causing injury contrary to s.18 of the Crimes Act. The maximum penalty for that offence is five years imprisonment.

2The circumstances of your offending are as set out in the summary read by the prosecutor and tendered upon your plea.  I do not propose to recite that document in full now but I direct that a copy be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded.

3In essence, however, on 31 March this year you attended a pizza restaurant in Blackburn with the victim of Charge 1, Ms Moett.  The owner of the restaurant Mr Mustafa is the victim as regards Charge 2.  During the course of the meal, the victim indicated that she wanted to break up with you.  You wanted to hug her and she refused.  There was arguing and swearing and you were escorted from the premises by Mr Mustafa and a staff member.

4Upon reaching the front door, you produced a small box cutter and rushed back towards Ms Moett who was still seated at the table.  You then picked up a chair and swung it at her, narrowly missing her head.  You then grabbed her arm and you slashed her twice with the knife to her head and right forearm.  This conduct founds Charge 1.

5Mr Mustafa picked up a chair to try and defend Ms Moett and you slashed his arm with a knife before pushing him backwards, causing him to fall heavily.  This conduct founds Charge 2.  You then fled the scene

6I have seen CCTV footage of this incident, which depicts the serious violence in which you engaged.  The victims were injured as a result of your conduct and the injuries are described in paragraph 8 of the opening to which I have already referred.  It is fair to say that the injuries were largely superficial in nature.

7On 11 April 2013, you were arrested and you exercised your rights not to answer questions in relation to the matter.  Your conduct is properly described as disgraceful and cowardly.  It would have been terrifying for the victims and those around them, who included a ten year old child.  Your preparedness to cause injury with a knife in these circumstances simply beggars belief.  As I said during the course of your plea, as a community we cannot tolerate this culture of carrying and using knives to assault others which so often leads to tragedy.  The message must be clear and consistent that condign punishment will result in appropriate circumstances.

8I accept in this case that your use of the knife was spontaneous rather than pre-planned, but that really just illustrates the problem with the culture.  It was simply good fortune that the injuries were largely superficial.  The psychological sequelae is usually more enduring.

9Exhibit 3 is a victim impact statement from the second victim, Mr Mustafa.  I have had regard to that statement to the extent it is relevant and admissible for my purposes in sentencing you today.  The effects described are hardly surprising and would or should have been appreciated by you at the time of your offending.  I note that the first victim declined to make a victim impact statement.

10You have admitted the contents of a criminal record, which discloses a long history of appearances before the criminal courts dating back to 2004 in the Children's Court.  You have a significant history of dishonesty but more relevant for my purposes is your history of violent offending.

11On 26 August 2005 at the Dandenong Children's Court, you were found guilty of armed robbery and placed on probation.  You breached that order and you were sentenced to be detained for three months.

12On 23 January 2006 at the Melbourne Children's Court you were convicted of intentionally causing serious injury and sentenced to be detained for eight months.

13On 2 March 2007 at the Dandenong Magistrates' Court, amongst other matters, you were convicted of intentionally causing injury and assault in company.  You were sentenced to be detained for 12 months.

14On 27 March 2007 at the Melbourne Children's Court, you were convicted, amongst other matters, of affray and sentenced to be detained for six months.

15On 5 April 2011 at this court, you were convicted of intentionally causing injury and sentenced to be imprisoned for two years.  12 months of that sentence was suspended for two years.  I have had the advantage of reading His Honour Judge Smallwood's sentencing remarks in relation to this matter and I note I was told the breach proceedings will be instituted in relation to that sentence and listed before His Honour, as this offending occurred a few days prior to the conclusion of the suspension period.

16Your most recent offending includes weapons offences.  In addition, I have been told that your offending breaches a three month suspended sentence imposed at the Magistrates' Court on 26 November 2012.  Breach proceedings will be instituted in that jurisdiction.

17You are now aged 25, having been born on 11 August 1988.  You were 24 at the date of this offending.  You were born in Victoria and, due to your mother's drug abuse issues, you were raised by your grandmother until the age of 11 or 12, when she tragically passed away.

18Following that, you spent two years in foster care where you were unfortunately the subject of both physical and sexual abuse.  You then returned to live with your mother, who was involved in a volatile relationship herself.  She continued to be abusive of you and indeed ended up stabbing you during an argument.  Since the age of 14, you have found your own accommodation and had a very unstable existence.

19You have limited education, having only proceeded until partway through Year 8.  You have had only short and sporadic periods of unskilled employment.  You completed a certificate in fitness whilst in a Youth Justice Centre and I have been told you would like to work as a personal trainer.

20At 17 you commenced a relationship with the mother of your daughter Summer, who is now six.  That relationship ended when Summer was two and you have no contact with the child or her mother.  In 2011, you were pushed from a taxi and you suffered a traumatic brain injury which is confirmed in material from the Alfred Hospital , which is Exhibit B.  In addition, you were a victim of a stabbing incident that same year.

21As regards your future, you have been told that your employment options may be limited by your head injury.  It is your intention to return to live with your mother as you report that relationship has now improved.  What is clear is that substantial work will need to be done if rehabilitation is to be achieved.

22As regards drugs and alcohol, you commenced smoking cannabis at 13, you were using amphetamines at 14, methamphetamine at 16, acid at 17 and, following your head injury, you commenced using heroin aged 23.  You also abused alcohol at a rate of what you describe as a 'slab' a day until you were remanded.  You have had some counselling in custody but thus far it has proved insufficient to curb your behaviour in the community.

23Exhibit C is a report form Dr Cunningham.  He diagnosed you as suffering from PTSD arising from your sexual and physical abuse as a child and a neurocognitive disorder leading to disinhibition and affective lability due to your traumatic brain injury.  In his opinion, these conditions, combined with alcohol and drug abuse, led to you having impaired ability to exercise appropriate judgement with respect to offending behaviour and its consequences.  Dr Cunningham says there is a serious risk that imprisonment will have an adverse effect upon your mental health and in the absence of treatment prison will weigh more heavily upon you.  I accept in this regard that treatment in custody will be limited.

24I think your prospects of rehabilitation are difficult and guarded.  In large part, they are dependent upon you addressing your substance abuse issues and maintaining abstinence and you engaging in programs to assist in your rehabilitation.  I think it is clear that you will require substantial support and supervision to manage what I think will be a difficult transition back into the community, with its temptations and stressors.

25Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  Firstly, your plea of guilty at committal mention, which saved the court and the community the time and expense of a trial and witnesses the ordeal of giving evidence.  You are entitled to the full benefit of what was an early plea and I have acted on that basis.  In addition, I am satisfied that your plea should be used as evidence of your remorse.

26You are still a relatively young man and your rehabilitation must be given weight in the sentencing process because that is not only in your interests but those of the community.  I accept that you will experience any term of imprisonment more hardly as a result of your PTSD and neurocognitive disorder and, further, that there is a serious risk that your mental health deficits will be exacerbated in custody.

27I accept that proper assessment of moral culpability is affected and moderated to a limited degree by the role played by your diagnosed mental illness.  I note of course that there was substantial violent offending prior to your head injury.

28The Crown submit that the appropriate sentencing range is a head sentence of 20 to 30 months with a non-parole period between 12 and 20 months.  Your counsel, whilst quite properly conceding that the only disposition open is an immediately servable term of imprisonment, submits firstly on your instructions that a straight sentence should be imposed or a partially suspended sentence.  It seems that you wish to advance these submissions due to concerns you have in relation to your own ability to obtain parole.

29In the alternative, your counsel submits that a longer than normal parole period should be imposed in light of your psychological issues and your need for support.  He submits that the appropriate sentencing range is a head sentence of 18 to 20 months with a non-parole period of 9 to 12.

30As well as matters personal to you to which I have referred, I must take into account other relevant sentencing considerations.  General deterrence is, in relation to this sort of offending, of considerable importance.  I must seek to deter not only you but others who would engage in like conduct.  The sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must seek to deter you from future offending, which must be given weight in light of your history. 

31In the circumstances, I have no option but to impose terms of imprisonment.  On Charge 1, intentionally causing injury, you are convicted and sentenced to be imprisoned for two years and four months.  On Charge 2, recklessly causing injury, you are convicted to be imprisoned for 12 months.  I direct that four months of the sentence upon Charge 2 is served cumulatively with the sentence upon Charge 1, making a total effective sentence of two years and eight months.  I direct that you serve 20 months before becoming eligible for parole.  I direct that 223 days be reckoned as served.  I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 44 months with a non-parole period of 30.

32Take a moment please, counsel, and check the cumulation?  Is there anything arising which needs to be corrected?

33MR AYERS:  Nothing, Your Honour.  No orders are sought in this matter.

34HER HONOUR:  Thank you.  Mr Hooper may be taken downstairs please.

35MR AYERS:  Your Honour, I relation to the media's application, I'm led to believe that the principle complainant has not been able to be contacted in the short period of time, therefore ‑ ‑ ‑

36HER HONOUR:  We have not had an application yet but I raise it while you are all here because it may not be Mr Butcher who makes the application, it may be that another news organisation makes the application and it is easier than bringing you back to be clear what the situation is.  So who could not be contacted?

37MR AYERS:  The principle complainant or victim, the lady.

38HER HONOUR:  Yes.

39MR AYERS:  Ms Moett couldn't be contacted.  Mr Mustafa has no issues as long as his daughter is not depicted in the footage and I don't believe she is present during the critical moments, of course.

40HER HONOUR:  Yes.

41MR AYERS:  So Ms Moett is yet to be contacted, so that might have to remain ‑ ‑ ‑

42HER HONOUR:  Well, I have not got any applications yet so there is nothing pressing.  Mr Butcher, do you want to be heard?

43MR BUTCHER (from body of court):  Thank you, Your Honour.  Steve Butcher from The Age.

44HER HONOUR:  Yes, thank you.

45MR BUCTHER:  I talked to your associate prior to you adjourning that I would contact Kerry O'Shea, the communications media person, which I have done and foreshadow that I will be making an application, pending of course the outcome of the contact that the informant has made.

46HER HONOUR:  Yes, thank you.

47MR BUTCHER:  Now, if it's okay by you, Your Honour, I mention to the informant that until I hear back from him in relation to the main complainant's position on it, I'll hold off on the application but I foreshadow that if that's forthcoming, I certainly will be making application and doing it through the formal channels.

48HER HONOUR:  Yes.  That would then obviously be brought to me for decision, but I indicate that in the absence of the primary complainant's consent, I would not grant the application.  If she consents, I will have consents from both complainants and contingent upon no other person being shown, I would be prepared to grant the application.  So I wouldn't need to hear further from anybody, I will do all that in chambers, depending on the result of enquiries.

49MR BUTCHER:  That's what I was going to ask, Your Honour.  Is it possible to do it via email and through - by the ‑ ‑ ‑

50HER HONOUR:  Well, I don't accept emails but you can send those quite rightly, Mr Butcher, to the communications manager.

51MR BUTCHER:  Oh thanks, Your Honour.

52HER HONOUR:  And we will deal with that.  I will make orders in chambers in due course dependent upon the results of those enquiries.

53MR BUTCHER:  Thank you, Your Honour.

54MR AYERS:  Your Honour pleases.

55HER HONOUR:  All right, thank you.  10 o'clock tomorrow.

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