Director of Public Prosecutions v Hope

[2020] VCC 1191

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 19-01431

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA HOPE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	24 June 2020
DATE OF SENTENCE:	5 August 2020
CASE MAY BE CITED AS:	DPP v HOPE
MEDIUM NEUTRAL CITATION:	[2020] VCC 1191

REASONS FOR SENTENCE

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Subject:

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr A. Paull	Adrian Paull Criminal Lawyers

HIS HONOUR:

1Joshua Hope, over the short period from 10 December 2019 to 22 December 2019, you committed a number of dishonesty and firearm offences.  What is far and away the most serious aspect of this offending is that you twice stole firearms from residential premises and then sold them on to other criminals, in exchange or to get money for your own drug purchases.  Crimes that enable firearms to be at large in the community, in the hands of criminals, is very serious offending.

2These crimes create potential for other violent frightening cries that are scourged in our community.  The courts must be firm in punishing offenders and deterring anyone from embarking on thefts of firearms and trafficking in them.  The first premises that you burgled and stole firearms from was in a street in the township of Donald.  You were on your way to Mildura.  You were homeless at the time and were heading to Mildura to meet up with a man you had met in prison.

3It was put that you deviated from the highways seeking petrol.  You came across the victim's house and broke into a shed.  You stole fuel by siphoning it from the victim's car.  You then cut two locks from a gun safe and stole five firearms.  You sold three guns in Mildura to associates of the man you were meeting up with.  They along with one other gun, have not been located.  The fifth gun was sold to a man in Ballarat and you identified that man to police at a later point.  He was arrested and dealt with and the gun recovered, together with another one.

4You committed the crimes of burglary, theft of firearms, theft of fuel, with other co-accused.  By having the firearms, you committed the offence of being a prohibited person in possession of firearms.  You were a prohibited person, as I understand it, because you were at the time, on a community corrections order.  It was put by your counsel that you did not know of, or plan to steal the guns, but when there was a gun safe in the shed you broke into to steal fuel, you just took the happenstance opportunity to steal the firearms.  That explanation must be seen in light of the fact that the house and the shed was in the township of Donald and someway off the main highway, or direct route to Mildura.  But also, it was a detour.  And if it was to get fuel, then it seems to be an unusual way to go about it.

5It also, this explanation, must be seen in light of your second burglary done some days later.  But before getting to that, I note that on 14 December, you were with a co-accused when a car was stolen.  You were in the car and drove it at a later point.  Ultimately though, after your arrest on
22 December 2019, you took the police to where this car had been dumped and it was returned to the owner.

6However, before that car was recovered, it was used by you to again drive to another house in the township of Donald. Again, you went to an unlocked shed and forced entry into a steel firearm storage locker in the shed.  Again, you say this was just an unknown and unplanned bonus, as you did not know or plan to steal firearms.  On this occasion, you stole the three firearms and 500 rounds of rifle ammunition and 11 shotgun cartridges, as well as some other items of property.  You sold one gun to the same man in Ballarat that I have mentioned, and that gun was recovered.

7Two days after the burglary, you were seen by police in a service station in Wendouree.  You fled the scene leaving your then girlfriend and an associate in the car.  The police found one of the firearms, a shotgun which was stolen in the second burglary in the boot of the car.  They also found the shotgun ammunition.  Searches of the premises of your co-accused discovered another of the stolen guns and ammunition.  You and your co-accused were arrested at this premises.  You made admissions in your record of interview and provided the information regarding the Ballarat man who got two guns from you and also as I have said, the location of the car that was stolen on 14 December 2019. 

8Taking the most favourable view of this set of crimes, that is, you just happened to burgle two sheds and not the houses I note. And came unknowingly upon firearms safely locked away and you there and then decided to steal them.  Even with that explanation, this is serious offending.  It is an explanation that I do not accept, but at the same time, I do not find, to the standard of beyond reasonable doubt, that you had planned and scoped out these sheds because they had firearms and had plans to sell them to pre-organised buyers.  What I am left with is that you were engaged in a pattern of firearm thefts and illegal sales, or trafficking to others, who bought them for criminal purposes. 

9You knew what you were doing was serious offending.  You have, as I will outline, a history of prior offending, mainly matters in the Children's, but also in the Magistrates' Court.  However, this offending that is before me is in another league entirely.  The number of guns is not insignificant and five times the trafficable quantity.  Your moral culpability remains high, notwithstanding that you committed the crimes to support your cannabis habit. 

10This is not a case, such as, the drug trafficking cases where an addict can explain why, or an addiction can explain why an offender on-sold drugs to other users.  This is serious and different offending and the fact that you committed the offence in order to get drugs, does not lower your moral culpability.  I will in due course say more of your mental health and the impact of that on various sentencing considerations, including your moral culpability.

11As to your personal circumstances, what is of importance in the sentencing synthesis is your young age.  You were 20 at the time of the offending, you will turn 21 in about two and a half months.  Your parents remain supportive.  You were raised in a loving family, as the youngest as I understand it of five boys.  Your mother's words, in a letter to the court, puts it best.  She says:

'Joshua has the support of a very stable, drug free family home, where he is loved and has our full support.  We are law abiding; honest and hardworking people and we would like for him to remember how he was raised and the importance of family'.

12Despite those positive family circumstances, you had in the words of your counsel Mr Paull, 'A deeply troubled childhood'.  He expanded on that in this way.  He wrote:

'That you exhibited problematic behaviour at a young age and were the subject of numerous assessments and treatments.  At 11 years old, you were considered to be in the borderline range of intelligence and diagnosed with ADHD and autism.  You got into fights at school.  You exhibited the troubling conduct of wandering off from the home property, particularly at night and the police were called on several occasions to search for you.  Your lack of appropriate risk assessment exposed you to situations where you were groomed and sexually assaulted by older men'.

13Your education came to an end far too early and most of it in any event was disruptive, because of your behaviour, but also because you were bullied.  You find it hard to relate to others of your own age in a meaningful way.  You moved out of home at 17 to live with a long term partner.  Both you and she were heavy cannabis users.  The relationship is now over.  You have not had much by way of employment. 

14As to drug use, it has only been cannabis, but from a young age and daily and in significant amounts.  It is notable in a positive manner that you did not move on to using the more damaging drugs of methylamphetamines or other like synthetic drugs and neither have you abused alcohol.  As mentioned, unhappily, you have a concerning number of court appearances and dozen prior offences.  Many are Children's Court appearances, mainly for driving matters, including theft of cars and reckless conduct endangering serious injury, burglaries, and criminal damage.

15You were as mentioned, on an 18 month community corrections order at the time of these offences, which aggravates this offending.  You had been on remand for some time before the community corrections order was imposed,   though oddly, this was not part of the sentencing order of the magistrate.  It was during that remand that you met the associate from Mildura that I have referred to.  These prior matters cannot be overlooked with respect to deterrence to you and in assessing your prospects for rehabilitation.  That is, a sentencing purpose that remains important given your age.

16You were assessed by the psychologist Mr Candlish.  He was provided with a very significant list of historical reports from the speech pathologist, psychologist, paediatricians, all arising from referrals when you were from the age of about seven to thirteen.  I have read but I will not summarise
Mr Candlish's analysis of all this material.  I have taken into account all that was written by Mr Candlish in his very detailed report, including those accounts of serious sexual assaults upon you as a child. 

17Mr Candlish did a range of tests and applied actuarial tools to assess your risk of reoffending.  Mr Candlish concluded that you had the potential to alter your pattern of behaviours and take a more productive path.  But that you would need help and commitment.  Staying away from negative peers and influences was critical.  He was of the view that you needed long term case management and treatment in the community.  As well as the whole report, I examine with particular are the paragraphs in the report referred to by your counsel in his written submissions.  Though plainly you have personality traits and problems involving impulsivity and risk taking and though there is a sad history of sexual abuse which no doubt has left its mark. I did not discern in the reports any basis for concluding that there was an impaired mental functioning that had a realistic connection to this offending, in a way that would lower your moral culpability.  I do not ignore your personality history and trauma and broadly, who you are.  And that gives rise to some mitigation.  But this is not, in my view, a case where an impaired mental functioning, short of a defence of mental impairment lowers your moral culpability.

18Of significant importance is that since you have been on remand, you have applied yourself well.  In particular, you have taken to learning the trade of cleaning by doing certificates and most importantly, to welding which you have done in the employment that you have in the prison.  And you have a plan it seems to use and advance those new skills upon your release.  You have a longstanding interest in cars and mechanics. 

19You have written regularly to your grandmother.  She set out some of the letters that you have written to her, in her own letter to the court.  She wrote of your remorse and intention not to repeat or fall back into offending.  She wrote of your welding and the other courses you have undertaken, until the COVID-19 pandemic caused them to shut down, or there to be restrictions on educational and vocational courses.  Your grandmother gave particular emphasis to your changed attitude.

20Your mother also wrote that she sees in you a better, more positive mindset.  She and your father are certain that your current settled circumstances at Marngoneet Prison is the best possible place for you while you undergo any sentence.  Your parents expressed the view that moving you to a Youth Justice Centre would be highly detrimental.  You too are keen to remain at Marngoneet or in the adult prison system and are against a sentence of detention in the Youth Justice Centre.

21While your preference is not determinative of the sentence, it is relevant as is the written evidence from your parents.  They know you best.  They have endured your offending behaviour and have remained supportive.  They see where you are now as the best chance for reform.  Your counsel submitted that within an adult gaol term, there was significant benefit in allowing for a lengthy period of parole.  The prosecution did not argue against such a sentence but emphasised that this was serious offending and that putting firearms into the criminal world, after not one, but two burglaries, and thefts from properties where there were secured firearms, establishes the gravity of this offending.

22Although given your age, your rehabilitation is important.  There are other weighty sentencing purposes.  In a balanced way, I must do what can be done to facilitate your rehabilitation.  The principles as set out in the case of Azzopardi[1] have application.  Those principles also recognise that where the offending is serious, and there is a history of prior offending, more weight has to be given to denunciation, general deterrence, and specific deterrence.

[1]Azzopardi [2011] VSCA 372

23The courts do what can be done to keep a young person out of gaol.  However, there comes a time when a young person commits a serious crime or serious crimes, after years of other offending, such that there is little choice but to impose the sentence of last resort being adult gaol.  In my view, that position has been reached in this case.  While the preference, as I have said, of the offender does not determine the sentence to be imposed, it is important in your case because you are doing as well as you ever have in Marngoneet.

24I had you assessed for your suitability for Youth Justice Centre detention.  As well as speaking to you, the assessor spoke to your parents and grandparents.  The assessment came to the following conclusions and I will set out some of what was said in that helpful report.  It was indicated that you told them that you relate better to older people rather than young people and you voiced concerns that your progress may be disrupted by contact with others, young people in the Youth Justice Centre.  You also pointed out that you had completed a number of certificates in cleaning and welding and that you were proud of this work. 

25It also emphasised, or the report writer emphasised that your family were very keen to see that you remained where you were, as you have developed a better attitude while in prison.  It was also pointed out that you have gained a clearer perspective on life, having been in custody when two close family members passed away.  It was noted that during your time in custody, you have remained without incident and have engaged in work and study.  You have the support of a positive family and appropriate plans for your release.  Although the report concludes that you are suitable for a Youth Justice Centre detention, I read into or from the whole report that there is significant benefit to your progress in rehabilitating if you stay in the adult gaol where you currently are.  In addition, I am also concerned that the length of a sentence available for Youth Justice Centre could not adequately meet all sentencing purposes, especially denunciation and general deterrence.  Also, you will be beyond the dual track criteria in terms of age in just two and a half months. 

26I am of the view that a gaol term with a lengthy period of potential parole would be the best approach you have, unlike so many young offenders, the considerable family support that I have spoken of.  You are showing good signs of reform and thus your prospects for rehabilitation on release are far from grim, in fact they look positive.

27You have pleaded guilty after confessing and cooperating with the police.  All those matters taken separately are mitigatory.  Your plea of guilty means that your sentence will be less than it otherwise would have been.  Your plea of guilty is particularly valuable given that jury trials are currently suspended.  The plea of guilty, your cooperation and what you have expressed to your family while in custody indicate remorse.  You have said that you want to turn things around and not return to prison again.  It is up to you Mr Hope, but you will need support and supervision, which can be achieved by being on parole.  Prison is harder because of the COVID-19 pandemic and I have factored that into the sentencing equation.  You do not receive visits and no doubt have anxiety about your older family members.  A co-accused pleaded guilty to some of the same offences, but his offences allowed his matters to be heard in the Magistrates' Court.

28I was advised that he received a 15 month sentence.  He was slightly older, but not much, but had had no prior matters as I was informed.  The issues of parity must recognise your more serious crimes which are ones that have to be dealt with in this court and also that you have a prior criminal history of offending.  I have considered all your offences that you committed in the short period from 10 to 22 December, ensuring that the principles of totality are properly applied.  There must be some cumulation but will be constrained given your young age and improving prospects and I have ensured that you are not doubly punished for the various overlapping offences.

29I commence by referring to the importance of denunciation of your serious and dangerous crimes.  I also gave emphasis to the need for deterrence to others and to you.  My sentence, which I will shortly announce, must give practical articulation to the importance of those sentencing purposes.  I have kept well in mind your rehabilitation as reclaiming you to lawful ways is very much in the interests of the whole community.  For those reasons, the sentences of imprisonment that I impose are as follows.

30Charge 1 burglary, one year. 

31Charge 2 theft of firearms, two years. 

32Charge 3 theft of the fuel, one month. 

33Charge 4 being a prohibited person in possession of a firearm, six months. 

34Charge 5 burglary, one year. 

35Charge 6 theft of the firearms, two years. 

36Charge 7 the theft of property, one month. 

37Charge 8 being a prohibited person in possession of firearm, six months. 

38Charge 9 the disposal of a trafficable quantity of firearm, two years and three months. 

39Charge 10 theft of a car, seven months. 

40Charge 11 possession of cannabis, that matter is proven and discharged and in relation to the summary offence of driving while disqualified, one month imprisonment.

41I make the following orders for cumulation.  Charge 2, six months.  Charge 4 one month.  Charge 6, six months.  Charge 8 one month.  Charge 10 one month. 

42That gives a total effective sentence - those orders for cumulation are cumulative upon the base sentence, Charge 9 of two years and three months. 

43If my maths are right, that gives a total effective sentence of three years and six months and I fix a minimum non-parole period of 22 months.  The number of days you have spent in custody has been calculated or reckoned at 227 days.  I declare that those days, 227 days, are part of the sentence I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities know that you have already done 227 days of the sentence that I have just imposed.

44Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a total sentence of five years, with a minimum of three years and four months. 

45Mr Moore, if I can just quickly ask, is there a minimum disqualification?  I just want to make sure of his driving licence.

46MR MOORE:  Just bear with me a minute, I've got a feeling it's two years, but I'll just look at - at the end of the prosecution opening, Your Honour.

47HIS HONOUR:  Yes.  Yes I am sorry, what did - have you got it there?

48MR MOORE:  Just bear with me a minute?

49HIS HONOUR:  Yes.  I should have ‑ ‑ ‑

50MR MOORE:  Well according to the prosecution opening, ‑ ‑ ‑

51HIS HONOUR:  Yes.

52MR MOORE:  ‑ ‑ ‑ I'm not quite sure whether this is correct, but a cancellation period is required, but ‑ ‑ ‑

53HIS HONOUR:  Yes.

54MR MOORE:  ‑ ‑ ‑ it's a matter for the court to ‑ ‑ ‑

55HIS HONOUR:  Yes.

56MR MOORE:  ‑ ‑ ‑ what period that is.

57HIS HONOUR:  In respect of your driving licence Mr Hope, all licences are cancelled, and you are disqualified from driving for a period of 14 months.  Are there any other orders required?

58MR MOORE:  Your Honour pleases.  There's a disposal order which ‑ ‑ ‑

59HIS HONOUR:  Yes.

60MR MOORE:  ‑ ‑ ‑ has been filed, Your Honour.

61HIS HONOUR:  Yes.  I make that order.

62MR MOORE:  There's some cannabis found.  Yes.

63HIS HONOUR:  I make that order.  Mr Paull, is there anything else ‑ ‑ ‑

64MR MOORE:  That's all.

65HIS HONOUR:  ‑ ‑ ‑ that needs to be attended to?

66MR PAULL:  I don't believe so Your Honour, no.

67HIS HONOUR:  Thank you.  All right, well I propose to stand down and we will give you an opportunity to speak to Mr Hope on this link now.  Thank you.

68MR PAULL:  Thank you, Your Honour.

69HIS HONOUR:  I thank counsel for their very significant assistance in this matter.

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