Director of Public Prosecutions v Hopkins
[2023] VCC 1007
•13 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00360
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BAILEY HOPKINS |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2023 | |
DATE OF SENTENCE: | 13 June 2023 | |
CASE MAY BE CITED AS: | DPP v Hopkins | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1007 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Intentionally exposing emergency worker to risk by driving -threaten to assault emergency worker on duty - damaging property - unlicenced driving - commit indictable offence whilst on bail - unlicenced driving - fail to stop on police direction - possess controlled weapon – drive unregistered vehicle
Legislation Cited:
Cases Cited:Bugmy v The Queen [2013] HCA 37,
Azzopardi v The Queen [2011] VSCA 372Sentence:180 days' imprisonment plus 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms T. Stokes Ms J. Caust | Office of Public Prosecutions |
| For the Accused | Ms H. Edwards | Victoria Legal Aid |
HIS HONOUR:
1 Bailey Hopkins, you have pleaded guilty to three offences on the indictment:
- intentionally exposing an emergency worker to risk by driving, the maximum sentence for which is imprisonment for 20 years;
- threatening to assault an emergency worker on duty, the maximum penalty for which is imprisonment for five years;
- damaging property, namely the rear light of a police vehicle, for which the maximum penalty is imprisonment for 10 years.
2 You have also pleaded guilty to a number of related summary offences, namely:
- unlicenced driving (on two occasions), for which the maximum penalty is imprisonment for six months;
- committing an indictable offence whilst on bail, for which the maximum penalty is imprisonment for three months;
- failing to stop on police direction, for which the maximum penalty is imprisonment for six months;
- possessing a controlled weapon, for which the maximum penalty is imprisonment for one year; and
- two offences of driving an unregistered vehicle, for which the maximum penalty is a fine of 25 penalty units or 50 penalty units for a second or subsequent offence.
3 You have admitted a prior criminal history which goes back to May 2019 and includes appearances for various offences of dishonesty and various motoring offences including theft of a motor vehicle, failing to stop a vehicle on police direction, unlicenced driving and driving in a manner dangerous. The offences of dishonesty include burglary and aggravated burglary. On another occasion there was a court appearance for affray and in October 2022 for an offence of assaulting a protective services officer and behaving in an offensive manner in a public place.
4 I note that on no occasion throughout that criminal history were you dealt with by way of a conviction. All of the court orders were without conviction, and none resulted in custodial sentences. So the first time that you have been subjected to incarceration in an adult prison has been as a result of your arrest on these matters.
5
The prosecution tendered and relied upon a summary of prosecution opening dated 7 June 2023, which became Exhibit A on the plea hearing. I will not go into the full exposition of what is set out in that document, suffice to say that on 30 November of last year investigators attended your home address in
Noble Park where you were residing with your grandmother, your aunt and an uncle by the name of Brody Hopkins. The police from the Eastern Region Crime Squad attended a little after 9 am on that day with two police vehicles, with the intention of arresting your uncle, Brody Hopkins, at the premises.
6 After knocking on the door, police indicated their reason for being at the premises. You appeared at the front door shortly after police arrived and endeavoured to shut the door on the investigating police. There was a period during which you were pushing against the door and you threatened the police officer who was endeavouring to keep the door open, telling him that you would break his leg, and telling him and police generally to 'Fuck off'.
7 Police then noticed your Uncle Brody appear at the window of the laundry, and one of the officers entered the property through the kitchen. There then occurred a number of aggressive actions on your part which were intended to interfere with the police arresting your uncle and to challenge the police for being present in the premises. You showed concern that they had not produced a warrant for the purposes of entering the premises.
8 During the course of the plea hearing, I indicated that it seemed to me that there was no basis upon which the police were required to have a warrant in circumstances where they were arresting your uncle, who was known to be on the premises at the time. However you became incensed that police seemed to be acting in a manner that you regarded as contrary to your rights as a member of the household and the rights of others who were present within the house. You became incensed by the presence of police.
9 You threatened to “smash” them. You threatened to “smash” their cars, and you were aggressive towards them, both verbally and in your manner. Police endeavoured to arrest your uncle. You then threatened the police with a hammer, and continued to do so despite the fact that police were wielding OC spray as a means of defending themselves against your aggression. You threatened them with the hammer, verbally and by actions, and you also threatened to “smash” their cars whilst wielding the hammer above your head. Police then took your Uncle Brody out of the front door. You then came out of the premises, dressed at that stage only in your underpants and holding the hammer in what was described as a fighting stance, and you threatened again that you were going to “smash” the police cars, and “smash” the police.
10 Whilst police were endeavouring to put your uncle into a police vehicle, you went back into the house, apparently to retrieve car keys. You then drove your Holden motorcar with no registration plates in a manner that was designed to put at least one of the police officers in fear that you were going to run him over. You drove directly at that officer, causing the officer to jump onto the roof of the police vehicle nearby to avoid being struck by you. Your vehicle missed the officer by about six inches. You had turned the wheel of your vehicle towards the officer.
11
It was fortunate indeed that you did not strike the officer. Had you done so, you would have been up on a much more serious charge. There is no doubt that it was your intention to put the officer in fear that they would be struck and injured by your conduct.
12 You then returned and again threatened the police that you were going to “smash” their vehicles. You then smashed the rear tail light of one of the police vehicles. That action is the subject of Charge 3 on the indictment. Police succeeded in loading your uncle into a police vehicle and departed the scene.
13 On 15 December at about 10.40 am, two of the police officers present saw you in Doveton. You were driving the same Holden Commodore motor vehicle that you had used in the commission of the offence the subject of Charge 1 on the indictment. Police endeavoured to pull you over by activating the lights on the police vehicle. You pulled over briefly and, as the police approached you on foot, you drove away from the scene at a fast speed.
14 You were seen again on foot at about five minutes past 11 and were arrested by police. When police searched you, they found the keys to the vehicle in your pocket and a green and yellow-coloured handled hunting knife in the glove box of the vehicle that you had been driving. You were questioned by police and, to your credit, you admitted all of the alleged offences to which you have pleaded guilty. You were defiant and still unrepentant at the time that you were explaining your conduct to the police. But it is to your credit that you made the admissions that you did.
15 Your counsel provided me with written defence submissions dated 2 June 2023, and they became Exhibit 1 on the plea hearing. She also provided me with a copy of a report from Warren Simmons, psychologist, dated 25 May 2023 which is Exhibit 2. I was provided with a pre-sentence report dated 8 June 2021, prepared in relation to some earlier court appearances, including the offence of affray that is listed on your criminal record. That document is Exhibit 3.
16 I was provided with an ATLAS Remand Program summary which attaches certificates showing that you had completed all 10 modules of the ATLAS Remand Program, again very much to your credit. The remand program summary and the attached certificates are collectively Exhibit 4. I was also provided with a letter of support from Madison Thomas, which became Exhibit 5. That letter is a useful insight into your upbringing, to your more recent life and to your prospects of rehabilitation.
17 In essence the plea put on your behalf drew my attention to a troubled upbringing, to put it mildly. Your counsel invited me to apply the principles arising from the case referred to as Bugmy v The Queen[1], which requires the court to take into account a deprived upbringing which was likely to have affected the individual to a significant degree. I am satisfied that the principles arising from that case do apply in this case. I note, not just from the submissions of your counsel but also from the content of the pre-sentence report which is Exhibit 3, that it is clear and documented that you had a disadvantaged upbringing which involved no less than 35 protection notifications in relation to abuse, trauma, negligence and domestic violence. As a result of those notifications there were a number of child protection orders that were designed to protect you during the period from about 7 March 2011 to 25 July 2016.
[1][2013] HCA 37
18 Your schooling seems to have been affected by your upbringing and by the fact that you have suffered from attention-deficit hyperactivity disorder from quite an early stage in your school career. Your parents had separated when you were at a young age and it seems that your mother was unable or unwilling to provide the parenting required. You were with your father for approximately a year at one stage, but you have for many years been cared for by your maternal grandmother.
19 There was a period from about 2018 during which you were enrolled at the Berry Street School and seemed to be doing quite well. But following the birth of your son, Jasper, you ceased that program with a view to obtaining employment, ostensibly to provide for your son. You have not had a significant work record, but you have engaged in various cash-in-hand jobs and other periods of employment, mostly mowing lawns and doing handyman work, as well as helping a friend with roof tiling and working as a fencer. I note that you have ambitions to do an apprenticeship as a roof tiler.
20 You have a long history of abuse of cannabis and you have dabbled in a number of other illicit substances over the years, including methylamphetamine, up to when you turned 19. You have also been a social drinker of alcohol, consuming during the period between age 16 and 17 up to a bottle of spirits daily.
21 In brief summary, the submissions made by your counsel urged me to take into account the fact that you have pleaded guilty to all of these offences, that you pleaded guilty at the earliest reasonable opportunity, and to take into account your youth - and that is a particularly important factor. Your counsel drew my attention to the decision in the case of Azzopardi[2] and the words of the court, which noted that the effect of incarceration in an adult prison of a young offender will more likely impair rather than improve the offender's prospects of successful rehabilitation. Your counsel also urged me to take into account your limited criminal history, and although there have been a number of court appearances for seemingly quite serious offences, I note, as I have already indicated, that on no occasion did the court impose a conviction upon you for any of those matters.
[2]Azzopardi v The Queen [2011] VSCA 372
22 You have been in an adult prison now on remand for approximately six months and your counsel has successfully persuaded me that that is sufficient for a person of your age. You are about to turn 20 but you are still aged 19 and you are a young offender, and a person clearly to whom the words of the Court of Appeal in the matter of Azzopardi apply.
23 The courts have consistently approached the sentencing of youthful offenders in a way which is designed to promote rehabilitation. There are exceptions of course, depending on the seriousness of the offending. The offending in this case was serious, it was outrageous in a number of respects and inexcusable, but I think it is to your credit that you have not sought to excuse your behaviour. You have sought to explain it to the extent that you can, but you have recognised that you behaved very badly.
24 Ordinarily offences, particularly the offence the subject of Charge 1 on the indictment, would attract a substantial term of imprisonment. Emergency workers put themselves and their welfare on the line on a daily basis, and they need to be protected. Ordinarily courts are mindful of that to the point where it is necessary to impose stern sentences in order, not just to punish the offender adequately, but to send a strong message to other people who might be tempted to behave in a similar manner. That is all designed, at least in part, to offer a measure of protection to those engaged in police work and emergency service. It seemed to me when I first read the details of your offending that a sentence well in excess of six months' imprisonment would be required to meet all of the sentencing objectives.
25 I was assisted by reference to other cases before this court of broadly similar offending in determining an appropriate sentence and identifying current sentencing practice. It is noteworthy that your pleas of guilty were tendered during the continuing COVID pandemic. Although the effects of that on the criminal justice system are waning, the principles still apply and you have been in custody during a period when there are still restrictions within the custodial system that make the period on remand more difficult than in usual circumstances. All of those are factors that need to be considered in determining an overall sentence.
26
I need to take into account the principles of totality and of parsimony, which is not imposing a sentence that is more severe than necessary to achieve the objectives of sentencing. Whilst of course I should take into account the objective seriousness of the offending, that has to be tempered by the other matters to which I have referred.
27 The prosecution has noted the serious nature of the offending conduct, but has not sought to persuade me that I should impose a sentence other than a sentence which permits a combined sentence of the kind that is contended for by your counsel. As I indicated at the outset, my first inclination was to select sentences that would require you to serve more time because of the serious nature of the offending and the need to send a message to others who might be inclined to engage in that kind of conduct.
28 However, I am persuaded that you have reasonable prospects of rehabilitation. It is going to be very much up to you whether you take the opportunity that you are going to be offered. It will not be particularly easy for you to navigate the Community Correction Order. You will have to comply with the terms of the order. I am going to go through those terms now so that you can understand what I will be asking you to consent to.
29 The assessment report has indicated that you are regarded as a suitable candidate for an order. The order that I have in mind would be commencing at the end of your term of imprisonment, which will be effectively the period that you havespent on remand. You will be required to complete 250 hours of unpaid community work over the period of the 18 months during which the order is in force. I would order that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
30 I need to go through some of the other terms. I am going to start with the terms that apply to all Community Correction Orders. Firstly, you must not commit another offence for which you could be imprisoned during the time the order is in force. You must comply with any obligation or requirement prescribed by the Sentencing Regulations, that is, not turning up to appointments drunk or drug-affected and things of that nature. You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate.
31
You must report to the Community Corrections Centre at Dandenong,
46-50 Walker Street, Dandenong, within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days of you changing your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate. You must obey all lawful instructions from and directions of the Secretary of the Department or his or her delegate.
32 In addition, apart from the 250 hours of unpaid community work, you will be under the supervision of a Community Corrections officer for the period of 18 months during which the order is in force. You must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager. You must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager. You must participate in programs or courses that address factors relating to the offending as directed by the regional manager. In addition, you must reappear in this court for a review of your compliance with the order as directed by the court: the first time you will be required to appear for review will be 25 October 2023 at 9.30 am at this court.
33 If you do commit another offence punishable by imprisonment during the period that the order is in force, you may be brought back before this court and dealt with for the breach of the order, which carries a maximum term of imprisonment of three months. You may also be re-sentenced for these offences, which would almost certainly involve you doing a further period of imprisonment. To the extent that circumstances may arise which make it difficult for you to comply with the order, you can apply for a variation or amendment of the order, and if those sort of circumstances arise you would be wise to get some legal advice – you would be better able then to navigate the legal requirements and the procedural requirements necessary to seek to have the order amended.
34 If you fail to comply with the unpaid community work requirement, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
35 Now, do you understand the order that I have endeavoured to explain to you?
36 OFFENDER: Yes, I do.
37 HIS HONOUR: Yes. And are you willing to comply with the terms of the order?
38 OFFENDER: Of course.
39 HIS HONOUR: Do you need any time with your client, or are you happy that your client does understand the terms of the order.
40 MS EDWARDS: I'm content that he understands, Your Honour.
41 HIS HONOUR: I take your consent to be placed on the order from what you have said, and therefore I treat your consent as being given, and the order will be marked as you having consented via audio-visual link. I shall sign that in a moment, but I am going to pronounce sentence at this stage.
42 Bailey Hopkins, on Charge 1 on the indictment you are convicted and sentenced to imprisonment for a period of 180 days.
43 On Charge 2 on the indictment you are convicted and sentenced to imprisonment for a period of 90 days.
44 On Charge 3 on the indictment you are convicted and sentenced to imprisonment for a period of 30 days.
45 In relation to the related summary offences:
46 On Charge 9 of unlicenced driving, you are convicted and sentenced to imprisonment for a period of 30 days.
47 On Charge 10 of committing an indictable offence whilst on bail, you are convicted and sentenced to imprisonment for a period of 14 days.
48 On Charge 11 of contravening a conduct condition of bail, you are convicted and sentenced to imprisonment for a period of 14 days.
49 On Charge 12 of unlicenced driving, you are convicted and sentenced to imprisonment for a period of 30 days.
50 On Charge 13 of failing to stop on police direction, you are convicted and sentenced to imprisonment for 30 days.
51 On Charge 15 of possessing a controlled weapon, you are convicted and sentenced to imprisonment for a period of 60 days.
52 On each of Charges 16 and 17 of driving an unregistered motor vehicle, you are convicted and discharged.
53 All of those sentences will run concurrently, making a total effective sentence of imprisonment for a period of 180 days.
54 I declare 180 days of pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deduct it administratively from the sentence of 180 days that I have imposed. And I order that those facts be noted in the records of the court.
55 But for your pleas of guilty I would have sentenced you to imprisonment for a period of 30 months with a non-parole period of 20 months.
56 On Charges 1, 2 and 3 on the indictment I order that you be the subject of a community correction order in the terms that I have read out to you and to which you have already consented. That order will come into force upon completion of your period in custody, which is effectively immediately, and will last for a period of 18 months.
57
I make the order for compensation in the sum of $633.60 - that sum of money is to be paid in accordance with the order to the Victoria Police Force by
14 December 2023. I note in passing that your counsel urged me not to make that order; however, it seems to me that you need to now exercise a degree of maturity and face up to the consequences of your actions.
58
I have refrained from imposing fines for any of the motoring offences, rather
I have imposed penalties that involve terms of imprisonment, which seem to me to be entirely appropriate taking into account your current means and your capacity to pay fines, as well as the serious nature of the offending which in themselves, in relation to each of those offences for which I have imposed a term of imprisonment, are serious enough to merit a term of imprisonment.
59 I make the order for – is it forfeiture or disposal.
60 MS CAUST: Forfeiture, Your Honour.
61 HIS HONOUR: Forfeiture in accordance with the draft, which I have already signed.
62 MS CAUST: Your Honour, the licence?
63 HIS HONOUR: Yes, the licence, that is right. And on Charge 1 on the indictment, as I am mandated to do, I disqualify you from holding or obtaining a driver's licence for a period of two years from today's date. I think that is all, is there anything else that I have forgotten?
64 MS CAUST: Your Honour, that's all on my list. Thank you.
65 HIS HONOUR: Bailey Hopkins, you have dodged a bullet on this occasion and I hope that this period on remand has been a salutary lesson to you and has persuaded you that you should not be putting yourself in a position of risking going back inside again. As I have indicated, it will not be that easy to navigate the 18 months of the Community Correction Order, but it will be very much up to you to prove that your early promise in terms of rehabilitation can be sustained.
66 I thank both counsel for their assistance.
67 MS EDWARDS: As Your Honour pleases.
68 MS FAUST: If the court pleases, thank you, Your Honour.
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