Director of Public Prosecutions v Hopcraft
[2018] VCC 975
•27 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-17-00078
Indictment No. G12647687
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT HOPCRAFT |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2018 | |
DATE OF SENTENCE: | 27 June 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hopcraft | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 975 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of robbery – one charge of theft – one charge of possession of a drug of dependence (methylamphetamine)
Legislation Cited: Crimes Act 1958, s74 (1), s75; Drugs, Poisons and Controlled Substances Act 1981, s73 (1); Sentencing Act 1991
Cases Cited: Director of Public Prosecutions v Bell [2018] VCC 177
Sentence: Imprisonment – Total Effective Sentence 1 year, and 2 year CCO and Judicial Monitoring
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Wilson | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr A Malik | Ms Stephanie Joosten |
HIS HONOUR:
1 Brett Hopcraft, on 8 June 2018, you pleaded guilty to the following offences:
Charge 1 – that you, at Chirnside Park in Victoria on 14 September 2016, robbed Abigail Vos (“Vos”) of certain money.
The offence of robbery is contrary to s.75 of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 2 – that you, at Croydon in Victoria on 14 September 2016, robbed Tom Cawood (“Cawood”) of certain money.
The offence of robbery is contrary to s.75 of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 3 – that you, at Bayswater North in Victoria on 23 September 2016, stole clothing belonging to Andrea Bearsley (“Bearsley”).
The offence of theft is contrary to s.74 (1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 4 – that you, at Melbourne in Victoria on 26 September 2016, possessed a drug of dependence, namely, methylamphetamine.
The offence of possession of a drug of dependence is contrary to s.73 (1) of the Drugs, Poisons and Controlled Substances Act 1981. Such offence, if not related to trafficking, carries a maximum penalty of 30 penalty points and/or one year’s imprisonment. In any other case, the maximum penalty is 400 penalty points and/or five years’ imprisonment.
The circumstances of the offending
2 The prosecution has provided a document headed “Summary of Prosecution Opening”, which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you, and your counsel, as an appropriate representation of the offending.
3 The important things of such summary are:
·You were involved in two robberies from shops and one theft from a shop between 14 September 2016 and 23 September 2016, during which time you assisted a man called Dean Cameron Bell (“Bell”), to commit the offences, by driving Bell to the shops and dropping him off. After Bell carried out the offences, you would then drive Bell away. Importantly, it is accepted that you were unaware that Bell had a knife with him when he committed the armed robberies.
Charge 1: Robbery (Priceline Pharmacy, Chirnside Park on 14 September 2016)
·At about 2.10 pm on 14 September 2016, you, together with your girlfriend, Jessica Henson (“Henson”), drove Bell to the Chirnside Park Shopping Centre, where Bell got out of the car and you drove to a loading bay of the shopping centre a short distance away.
·Bell entered the Priceline Pharmacy at Chirnside Park Shopping Centre where Vos was serving behind the counter. Bell leant over the serving counter, produced a knife and told Vos to open the register, after which he took $302 from the till, before running out the store towards the exit doors. Bell went to your car and you then drove Bell away from the shopping centre.
Charge 2: Robbery (Reject Shop, Croydon, 14 September 2016)
·At about 2.30 pm on 14 September 2016, (the same day as the robbery at the Priceline Pharmacy), you drove Bell to the Reject Shop in the Arndal Shopping Centre, Croydon, where Bell put on a mullet-style wig.
·Bell entered the Reject Shop where Cawood was working at the register. Bell produced a knife and demanded money, after which Cawood opened the till and Bell stole $350. Bell then left the shop and was picked up by you, after which you both went to buy food.
Charge 3: Theft (Anaconda Store, Bayswater North, 23 September 2016)
·About 3.50 pm on 23 September 2016, Bearsley was working at the Anaconda store in Bayswater North when Bell, who was wearing a wig, entered the store. Shortly prior to Bell entering the store, your car was depicted driving slowly past the entrance to the store.
·Bell stole a jacket and another item of clothing, the total value of which was approximately $500.
·After you picked up Bell, your car was seen taking off quickly, with screeching tyres.
Charge 4: Possession of methylamphetamine
·On 26 September 2016, you were arrested and your car seized. At the time of your arrest, you were found to be in possession of methylamphetamine.
·On 26 September 2016, you underwent a Record of Interview in relation to the armed robberies, and when asked if you were involved in the armed robberies, you said: “I did not know they were armed robberies” and later, “I thought I was just taking a mate to get some smokes”.
4 You were remanded in custody from the date of your arrest, (26 September 2016), to the date when you were initially granted bail, (23 December 2016), resulting in 89 days of pre-sentence detention. You were remanded in custody again from the date of the execution of warrant for failing to appear, (14 October 2017) until the plea date, (8 June 2018), resulting in a further 237 days of pre-sentence detention. The total number of days of pre-sentence detention to that date, but not including 8 June 2018, was 326 days.
5 Counsel for the prosecution also advised the court that Bell was sentenced to six years and five months’ imprisonment, with a non-parole period of three-years and six months by Judge Gucciardo on 2 May 2018. A copy of the sentencing remarks of Judge Gucciardo were tendered (see Exhibit 4).[1] Henson was initially charged, but her charges were withdrawn at the committal stage.
[1]Director of Public Prosecutions v Bell [2018] VCC 177
6 Counsel for the prosecution also informed the court:
(a)Application would be made for orders for a forensic sample and disposal – both of which were not opposed;
(b)That the matter was resolved on 9 May 2018. The court was informed that the Director made an “offer” shortly before the first directions hearing.
Your criminal record
7 Counsel for the prosecution tendered your criminal record (see Exhibit 2). In particular I note:
(a) In December 2011 and June 2012 at the Ringwood Magistrates’ Court, you were found guilty of contravening family violence intervention orders, but were not convicted and ordered to pay a fine and a donation respectively;
(b) On 20 March 2014, you were convicted of contravening a family violence intervention order, unlawful assault and assault with a weapon and placed on a twelve month Community Correction Order, with a variety of conditions;
(c) On 25 May 2014, at the Dandenong Magistrates’ Court, you were convicted of carrying a prohibited weapon without approval or an order for exemption and fined $1,000;
(d) On 27 April 2015, it was found proven that you had contravened the Community Correction Order made on 20 March 2014 and were re-sentenced to a period of three months’ imprisonment, concurrent with any other sentence in relation to the offences of contravening a family violence intervention order, assault with weapon and unlawful assault.
Also on that day, you were found guilty and convicted of two charges of intentionally causing property damage, three charges of unlawful assault, one charge of making threat to kill, two charges of contravening a family violence intervention order and one charge of intentionally causing injury, and were sentenced to twelve months’ imprisonment, with a non-parole period fixed at six months;
8 The court was informed that during the period between being granted bail on 23 December 2016, to being again remanded on 14 October 2017, you assaulted a male in Bunyip. Apparently the driver of your vehicle was your now partner, Ms Katelyn Angelopoulos, who was friends with the victim’s ex-wife. The victim believed the assault may have been linked to an intervention order his ex-wife had taken out on him. The court was informed that you intend to plead guilty when this matter is brought before the Ringwood Magistrates’ Court on 24 October 2018.
Your personal circumstances and background
9 Your counsel tendered the following documents:
(a) A document setting out various submissions on your behalf (exhibit “A”);
(b)A bundle of documents, collectively referred to as exhibit “B”, consisting of:
-a urine drug screening test dated 26 March 2018, which was negative (undertaken in prison);
-a Certificate II in Kitchen Operations from the Kangan Institute dated 21 May 2018, (obtained in prison);
-a Certificate II in Cleaning Operations from the Kangan Institute, dated 6 February 2018, (obtained in prison);
-a Certificate I in Access to Vocational Pathways from the Kangan Institute, dated 28 February 2018, (obtained in prison);
-a Certificate II in Warehousing Operations from the Kangan Institute, dated 28 February 2018, (obtained in prison);
-a participation certificate and substance-use program run over twelve hours in prison by Uniting, dated 8 June 2018; and
-a referral by OSTP to organise a methadone program dated
7 February 2018, in anticipation of your release from prison.
10 Based on such material, and the various submissions made by your counsel, I note the following:
· You are thirty-three years old, having been born on 28 February 1985. At the time of the subject offending, you were thirty-one years old.
· You were raised in Cranbourne and have one brother. Your parents separated and your mother re-partnered and her new partner had four children from a previous relationship. Apparently you did not “gel” with your stepsiblings.
· You left school at the end of Year 10 when you were aged fifteen, after which you completed an apprenticeship with Tomlinson Glass. Thereafter, you worked as a glazier for a number of years.
· In or about 2010, your mother was diagnosed with brain cancer and ultimately died in early 2014.
· During this period of time, you were living with her and in part, due to the stress of her ongoing disease, and arguments with an ex-partner over custody issues in relation to your son with her, you commenced to use methylamphetamine (ice) and heroin.
· You commenced using approximately half a gram of ice per day, moving up to one gram per day, particularly after your mother died of her condition.
· Your son from the previous relationship is approximately ten years old and you have not seen him since 2014.
· At the time of your offending, you had been living in your car and staying with your girlfriend, Henson, who was also a heavy drug user.
· You were granted bail in December 2016, to comply with a CISP condition, but breached the terms of your bail in January 2017, causing a warrant to be issued. Initially, you continued to live with your previous partner, who continued to use drugs, and ultimately broke up with her in March 2017.
· Between March and May 2017, you “couch surfed” before moving to Bunyip in rural Victoria.
· In Bunyip you met your current partner, Ms Katelyn Angelopoulos, who works in aged care and has a nine year old son. She has no involvement with drugs whatsoever.
· On again being remanded on 14 October 2017 to date, you have not been involved in drugs and have undertaken a variety of courses in prison (see exhibit “B”). In particular, you have been working in the kitchens at the prison seven days a week, (for which certificates are required).
· During your period of incarceration, there was a fire at the Port Phillip Prison which caused a lockdown for three weeks and you were confined in your cell for 23 hours a day.
Mitigating circumstances relied on by your counsel
11 Your counsel submitted that the following matters are relevant to mitigation of your sentence:
(a) You pleaded guilty to the subject offending after negotiations with the Director of Public Prosecutions. Such a plea has significant utilitarian value, as it obviates the need for a trial and it also obviates the need for the complainants to give evidence at a trial involving this offending;
(b) You have a relatively limited prior criminal history and in particular, there is no offending involving dishonesty and or thefts and robberies;
(c) Your role in the offending was limited and that in relation to Charges 1 to 3, your role was to drive the co-offender Bell, to and from the various places where the offending occurred, unaware that Bell was armed with a knife, (in relation to Charges 1 and 2);
(d) That you did not obtain any money or reward from your involvement in the robberies and theft, save perhaps for some food being paid for by your co-offender;
(e)
On release from prison, it is anticipated that you will live with
Ms Angelopoulos and her nine year old child, and further anticipated that you will be able to obtain work in a lawn mowing business through a mutual friend.
12 Your counsel submitted that an appropriate disposition would be time served, coupled with a community corrections order with various conditions. Your counsel further submitted that any community corrections order should not have a condition involving community work, as you have suffered a punitive factor by way of the imprisonment to date. However, conditions relating to drug use, psychological counselling and programs to reduce re-offending should be considered.
The response of the Prosecution
13 Counsel for the prosecution, although noting that you breached an earlier community corrections order causing you to be resentenced to a period of imprisonment, did not oppose a community corrections order which, he submitted, would assist you in your rehabilitation from drug use.
14 Counsel for the prosecution noted that your criminal history did not commence until you were about twenty-six years old and prior to that, it appears that you had been a contributing member to the community.
15 Reference was made to the sentencing remarks of his Honour Judge Gucciardo in relation to your co-offender, Bell, and, indeed, it is accepted that his offending was far more serious than yours as:
(a)he pleaded guilty to four charges of theft and two charges of armed robbery;
(b) in respect to the two armed robberies, he was armed with a knife;
(c)Bell has a far more extensive criminal record than you, involving armed robbery, various thefts, and robbery offences over the years from 2004 to 2012. Furthermore, over the years, Bell has been sentenced to various periods of imprisonment, as well as community-based dispositions trying to help him rehabilitate.
In this sense, the concept of parity has little relevance.
16 Counsel for the prosecution did stress that general deterrence was of some importance given the nature of the offending which occurred against “soft targets”.
Conclusion
17 The offences of robbery and theft are serious offences. The legislature has seen fit to give a maximum sentence of fifteen years in relation to robbery, and ten years in relation to theft. Although there are no victim impact statements in relation to any of these offences, I would generally accept that the victims of your offending would have been frightened and shocked by being confronted by Bell, who had, (on two occasions), a knife.
18 I accept that your role in relation to Charges 1, 2 and 3 was significantly less than the role played by Bell, as you were the driver of the vehicle rather than the person who entered the premises and made the various demands for money or stole the clothes.
19 In particular, and importantly, it is accepted that you were unaware that Bell was armed with a knife to help facilitate the various robberies, (that is, Charges 1 and 2). Furthermore, it is accepted by the prosecution, there is no particular evidence that you financially gained from these robberies.
20 However, you were well aware that Bell intended to commit the offences and you helped to facilitate such offending, by driving him to the places where the offending was going to occur and then driving him quickly away to avoid detection and capture. In this sense, you clearly helped to facilitate the offending.
21 Furthermore, the places which were the subject of the offending relating to Charges 1, 2 and 3, were all so-called “soft targets" where people were doing no more than going about their normal day-to-day work in shops that the general community visit every day. Although the amounts of money and the value of the clothing were not large amounts this, in itself, does not change the circumstances where such people were confronted by Bell in what must have been a frightening experience.
22 However, taking the matters already referred to into account, I do accept that your role was at the lower end of these types of offences.
23 In relation to Charge 4, I accept that there is no evidence that you were involved in trafficking in methylamphetamine and indeed, as I have already detailed, there was no issue that you were a user of methylamphetamine (or ice), leading up to and around the time of the subject offending.
24 In general mitigation, I do accept that you pleaded guilty – not necessarily at the earliest time, but certainly after negotiations with the Director of Public Prosecutions. To this end, such a plea of guilty has utilitarian value and does save the cost of a trial and the need for the various complainants to relive the events the subject of the offending.
25 You have a limited criminal history, and as observed by counsel for the prosecution, such criminal history commenced when you were about twenty-five and at around the time when your mother was seriously ill, leading up to her death in early 2014. During this period of time, you descended into regular drug use, and particularly the use of Ice. It was also during this period of time you had ongoing difficulties with your ex-partner, who was also a drug user, over custody issues relating to your son. At the time of the offending, you were an Ice user.
26 I do consider that you have made a genuine decision to try and rehabilitate yourself from drug use, demonstrated by your keenness to undergo courses when in prison, your eagerness to work at prison and your intentions when leaving prison.
27 In particular, I note that you have largely eradicated the use of methylamphetamine since early last year and have formed a relationship with Ms Katelyn Angelopolous, who is employed full time and who has no relationship to the drug culture. When released, you have ambitions to become involved in a lawn-mowing business. All this bodes well for the future.
28 I do consider that deterrence, both specific and general deterrence, denunciation of the crimes and protection of the community, are important in determining an appropriate sentence. After a consideration of all the matters referred to above, I consider that a combined sentence of imprisonment followed by a community correction order would be appropriate in order that the conditions of the community correction order would assist you in your ongoing desire to overcome your drug habit and resume some type of normal life.
29 As I have already noted, I consider that the objective seriousness of your offending is at the lower end of these types of offences and that your prospects of rehabilitation are reasonable, based on your efforts when in prison, and your intentions after being released from prison.
30 The court arranged for you to be assessed as to your suitability for a community correction order. Such assessment was undertaken on 12 June 2018.
31
In a letter from the Department of Justice, a Community Correction’s officer,
Ms R Edwards, assessed you to be suitable for such an order, including conditions involving drug treatment and rehabilitation, programs reducing offending, and supervision.
32 However, it is to be noted that Ms Edwards reports that Community Correctional Services has assessed you as being a “high risk” of re-offending according to the Level of Service Risk Assessment Tool.
33 Although appreciating that you did breach an earlier community correction order that was in circumstances where you were in the throes of ice use during your mother’s illness, and when in conflict with your previous partner.
34 Please be upstanding:
(a)In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of six months;
(b)In relation to Charge 2, you are convicted and sentenced to a period of imprisonment of six months;
(c)In relation to Charge 3, you are convicted and sentenced to a period of imprisonment of three months;
(d)The sentence of six months’ imprisonment in relation to Charge 1 will be the base sentence and I order that five months of the sentence in relation to Charge 2 on the Indictment, and one month of the sentence in relation to Charge 3 on the Indictment, be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1. The total effective sentence is (12) twelve months imprisonment.
(e)I declare that you have served up to, not including this day, 345 days of pre-sentence detention, and such period should be administratively deducted;
(f)Furthermore, in relation to Charges 1 and 2, you are further sentenced to a community correction order for a period of two years. On release from prison you must attend the Morwell Community Correctional Services situated at 23 Ann Street, Morwell, within two clear working days from your release. In addition to the mandatory terms, there will be the following orders:
(i)pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the Department of Justice and Regulation for the length of the community correction order;
(ii)pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment, (including testing) for drug abuse or dependency;
(iii)pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to attend any program that addresses factors relating to your offending behaviour;
(iv)pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo assessment and treatment, including testing, for any mental health conditions; and
(v)pursuant to s.48K of the Sentencing Act 1991, you will be judicially monitored by the court, and the first judicial monitoring will occur on 19 September 2018 at 10.00 am;
(g)In relation to Charge 4, you are convicted and sentenced to a fine of $250;
(h) I grant the orders for a forensic sample and disposal.
35 Save for your pleas of guilty, I would have ordered a period of imprisonment of two and a half years in relation to Charges 1, 2 and 3.
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Anything arising out of that gentlemen?
36 MR MALIK: No thank you, Your Honour.
37 MR WILSON: Nothing further from me, Your Honour.
38 HIS HONOUR: Yes. Mr Hopcraft, you probably did not take all of that in. The upshot of it is, is what we call a combined sentence. Your total period of imprisonment will be one year, which means given the amount of time that you have been in prison already, it will be a relatively short time before you get released. It will be a little bit longer in prison.
39 However, you have also been sentenced to what is called a community correction order, and although that makes you free to live in the community, you have to abide by various conditions and you are under the general supervision of the Corrections people, which will require you reporting to them as they require and going to doctors for either checking up on drug use and drug testing, any mental health problems and maybe any courses to help control and keep you on the straight and narrow.
40 Perhaps more importantly, I have decided that in your case, I am going to have what is called judicial monitoring. What that means, you will be required to come back before me, maybe every few months, that first date in September this year and I will get a report from Corrections as to how you are going. I can assure you if I get a bad report, I will get extremely upset and that will have consequences for you.
41 I should also tell you that if you breach any of these conditions of the community correction order, there is the prospect that Corrections will bring what they call a breach application. What that means I would have - it will be back before me because I was the Judge who gave you the community correction order and if I do find that you breached it, one of the options available to me, I can resentence you and my option for resentencing would involve, or could include sending you to prison.
42 What this has been structured to achieve, I hope, is to carry on with the work that you are undertaking already. You are in a curious position that you have no offending until about the age of 25. Many people who appear before me have drug use from sometimes early to mid-teens and they have already had significant offending by the time they are 19 or 20. It does appear that you descent into drugs was caused by problems associated with the tragic death of your mother and indeed, problems with your previous partner.
43 Be that as it may, you have also shown, at least in the last fifteen months, a real desire, it would appear, to overcome your drug habit and seemingly you formed a good relationship with someone who has no involvement with drugs and you have got prospects of getting a job, once you are released. So in other words, really the ball is in your court. If you stuff up, you come back to me. Really prison is looking you squarely in the face. You have had a taste of what it is like for nearly one year. I am sure you do not want to go back. So it is very much in your court.
44 What you have to remember, as I say with a community correction order, this in many ways is directly to your benefit. At Corrections, these people are out to help you. They are out to help you, particularly to overcome this drug habit, overcome any psychological issues you may have and for you to get back on track, along with your life. So it is really much up to you. So think about that every day. This order goes for two years. Now if you put your head down, you get back to work once you get out of prison, it will probably fly through. But it is really up to you. You have really been given a chance. You are still a young man, you still have got a lot of time in front of you. So really it is up to you now. Do you understand?
45 OFFENDER: Yes, Your Honour.
46 HIS HONOUR: Yes, anything arising gentlemen?
47 MR MALIK: No thank you, Your Honour.
48 MR WILSON: No, Your Honour.
49 HIS HONOUR: Yes very well, we will adjourn temporarily.
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