Director of Public Prosecutions v Horsfield
[2018] VCC 1931
•9 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-01053
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL HORSFIELD |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 October 2018 |
| DATE OF SENTENCE: | 9 October 2018 |
| CASE MAY BE CITED AS: | DPP v Horsfield |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1931 |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – armed robbery – excellent rehabilitation prospects – early plea of guilty – CCO imposed
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APPEARANCES: | Counsel | Solicitors |
| For Director of Public Prosecutions | Ms S. Bruhn | Office of Public Prosecutions |
| For the Accused | Mr A. Swanwick | Swanwick Law |
HER HONOUR:
1 Michael Horsfield, you have pleaded guilty before me to one charge of armed robbery.
2 The charge is a serious one and that is reflected in the maximum penalty that parliament prescribes and that is, 25 years’ imprisonment.
3 You admitted your prior criminal history. There are three Children’s Court appearances that span the period from 23 November 2009 to 24 February 2011 and there are two Magistrates Court appearances 30 May 2013 and 3 September 2013.
4 You are now aged 25 and you were 24 at the time of the offending.
5 In the past, there have been a number of findings of guilt against you in respect to various matters in the Children's Court, and also in the Magistrates' Court, and you have had a variety of dispositions including without conviction good behaviour bonds, probation, and a without conviction fine and an adjourned undertaking.
6 This is serious offending I will proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and marked Exhibit 1.
7 The circumstances of the armed robbery are that you entered a taxi in the early hours of 16 February 2018. The taxi was parked in Centre Road, Bentleigh. Con Georgopoulos, the driver had been asleep. He was woken when he heard you knocking on the taxi window. He unlocked the taxi door once he had established that you wanted to travel to Elwood. After you entered the front passenger seat of the taxi you brandished a kitchen knife and made a demand of Mr Georgopoulos for money.
8 Mr Georgopoulos told you that he did not have any money as he had just started his shift. He eventually gave you $70 from his shirt pocket after which you asked for more money and then he opened his wallet and gave you two $50 notes following which you left his taxi.
9 The objective gravity of the offending is serious insofar as you preyed upon a lone, vulnerable man who was working as a taxi driver in the early hours of the morning.
10 I have personally viewed the footage taken of the incident that was tendered at the plea hearing that is from the cameras within the taxi. You are shown entering the taxi. I noted there was no attempt to disguise your facial features. The armed robbery took place in under two minutes but nonetheless it would have been a terrifying experience for Mr Georgopoulos given that you brandished the knife in the small confines of his taxi.
11 You told the taxi driver not to panic and you wanted “the company's money”. I accept that this was impulsive and opportunistic offending and I further accept that you committed the offending whilst you were under the influence of a mixture of cannabis, diazepam and alcohol.
12 Whilst that may explain your behaviour and your failure to exercise proper judgment, it in no way excuses your behaviour and there is a need for the court to impose a sentence that reflects just punishment, general and specific deterrence, and the need to provide for community protection.
13 Armed robbery does represent a broad spectrum of offending and I accept the submissions made by your counsel Mr Swanwick that the offending on this occasion falls towards the lower end of the scale of seriousness for this sort of offence.
14 Mr Georgopoulos sets out in his victim impact statement that was read to the court how your actions on this evening affected him. He is a man in his 60s who has always worked in the taxi industry and he says that he has a feeling of insecurity with people and passengers approaching or entering his cab and in fact he is scared. He has anxiety and has experienced nightmares about the incident. He does not enjoy his work any more as he did previously and that is because he believes it (the armed robbery) may happen again. He now looks over his shoulder and has constant fear and he has difficulty sleeping at night.
15 For a man of his age, having worked in the industry all his life, those effects are quite profound.
16 Mr Swanwick, on your behalf, acknowledged the seriousness of your offending.
17 Following your arrest you were remanded in adult custody for a period of seven days. That experience was a salutary one and one that has proved to be a catalyst for real change in your behaviour. You were released on stringent conditions of CREDIT bail and complied with those bail conditions up until committal mention.
18 You entered a plea of guilty at the committal case conference and thereafter you were placed on County Court bail which you have also complied with.
19 You returned home to live once bail was granted and have settled back living with your mother. You are 25 and therefore still a relatively young man. You come from a loving and supportive family. You are the youngest of three males. You were extremely close to your father who tragically died in 2006 from cancer.
20 Following your father's death you experienced significant psychological disturbance and disruption which then led to increasing substance abuse, risk-taking behaviour and associating with negative peers, and to a large extent that explains your prior criminal history.
21 You did not do well at school. You had disruptive behaviour and left school early. You started but did not complete a TAFE course. Notwithstanding that, you do have a relatively good work history. You have had a variety of jobs, including labouring and administration and recently there was a failed attempt to set up a fencing business.
22 Currently you are employed as a business development officer with a local real estate agency and you are considered to be highly regarded and you are progressing well.
23 I have read and had regard to the report completed by Mr Michael Crewdson, consultant psychologist. He knows you well, having treated you in 2014 after referral from Dr Solange Shakir for anxiety, related treatment and psychotherapy in the context of your earlier childhood offending.
24 He describes you as a young man who is intelligent and responsible, who has excellent family and interpersonal support. I accept having read his report that you have suffered without an appropriate role model in your life following your father's death.
25 He noted that you were diagnosed with ADHD as an adult and he said it was difficult to reach a formal diagnosis in respect to your current offending but noted the underlying psychological difficulties associated with the trauma of your father's death in your childhood at an impressionable age. He postulated the offending occurred in the context of pharmacologically induced dissociative state.
26 An effective change is possible, he said, through treatment and you are motivated to change and notwithstanding your past record you would likely be compliant with any community corrections orders. I have had regard to his expressed opinion.
27 Mr Swanwick on your behalf sought a non-custodial disposition and urged the court in the circumstances to consider a community based disposition. He relied on many factors in mitigation.
28 I accept that you entered a plea of guilty at the earliest opportunity at committal case conference. That plea is of real utility. You have spared the community the cost and inconvenience of a trial and no civilian witnesses, particularly
Mr Georgopoulos, who was the victim of your crime, has been required to give evidence or be cross-examined at committal or trial. Your plea therefore has saved him from further trauma. You have facilitated justice and your sentence will be discounted accordingly.
29 I accept that you are genuinely remorseful for your actions, and further I accept that the plea of guilty indicates a willingness to accept full responsibility for your conduct.
30 I have taken into account your history and background. You are still relatively youthful and rehabilitation is an important aspect of the sentencing process. You do have a criminal history that I have referred to and I accept in large part that is explicable by reason of your psychological disturbance following your father's death and your difficulties in coping.
31 You now have insight into your offending behaviour and the effect on the victim. I consider that you have excellent prospects of rehabilitation. There is significant community interest in maintaining your progress that you have achieved whilst on bail, so as to ensure ultimately the best protection for the community, but also to offer you individually the best hope for rehabilitation in the future.
32 You are open to receiving assessment and treatment for your drug and alcohol and other related issues on a community corrections order.
33 Ms Bruhn, on behalf of the prosecution, acknowledged the serious nature of the offending, having regard to the objective features that I have already highlighted. She submitted that the court ought to consider the imposition of a gaol term to be served or alternatively, a combination of gaol to be followed by a community corrections order.
34 In formulating a just sentence I must balance all of the sentencing principles and only impose a term of imprisonment as a last resort.
35 I have had regard to the guideline judgment of Boulton v The Queen[1], known as Boulton, and acknowledge that the availability of community corrections orders have dramatically changed the sentencing landscape in this state. In this instance I consider that a community corrections order is the most appropriate sentencing disposition. It will enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence.
[1][2014] VSCA 342 [186].
36 I consider that to imprison you now would be a retrograde step and would undo potentially all the steps that you have taken to date to achieve sobriety and obtain employment and that would be quite tragic in your circumstances, where you are a young man who has a real future ahead of you.
37 I have also had regard to what was said in Boulton, where it was said:
"A Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of
imprisonment."
38 Those observations are particularly relevant in this case.
39 The court in that case went on to say:
"The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects of rehabilitation."
40 I am satisfied that yours is a case where all of that can be achieved through the community corrections order that I have formulated. You have been assessed as being suitable for such an order. You are assessed as being medium risk of reoffending. You have had no prior involvement with community corrections services but I have this morning been provided with a couple of certificates which relates to programs that you have completed as a child under Children's Court orders and they include the Right Step program, the Ropes Course and also you have in the past completed an Adapt program, so you have demonstrated in the past that you are the sort of person who can comply with court orders when required.
41 I am of the view and I am confident that you ought be able to fulfil the requirements of this order. I have explained to you the nature of the order and also the consequences of contravention, and this morning you have indicated your willingness to consent to such an order. You have responded that you fully understand all the terms of the order and the conditions and you have had explained to you the mandatory terms of such order.
42 You fully understand in the event that you breach the order, that constitutes a new offence and that is punishable by up to three months' imprisonment.
43 The sentence to be imposed must reflect condemnation by the court of your appalling behaviour. It is equally important that it must be of such severity to serve as a lesson to others who might be minded to engage in this sort of offending. The courts need to send the message that persons who engage in such conduct do receive stern punishment. The punishment aspect of your order is reflected in the community work component, in addition to the other programs that have been indicated.
44 I will now impose the formal sentence. Could you please stand.
45 On Charge 1, armed robbery, you will be convicted and sentenced to a three year community corrections order with the conditions of supervision, and treatment and rehabilitation programs for drug and alcohol, as well as other offending behaviour, and 250 hours community work.
46 I will make the formal order that all hours of treatment rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
47 I make the following declaration, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of three years to serve 18 months.
48 I think that completes the orders in this case. I understand there are no ancillary orders.
49 MS BRUHN: That is correct, Your Honour.
50 HER HONOUR: I have signed that order so I will get your client, Mr Swanwick, to sign that.
51 MR SWANWICK: Certainly.
52 HER HONOUR: And once that is done I will make a copy and he is free to go. Mr Horsfield can be released from the dock.
53 I will just mark as Exhibit 7 the two certificates that were provided this morning, the Right Steps certificate and the Ropes Course certificate, and Exhibit 8 can be the community corrections officer's assessment report.
EXHIBIT 7 - Right Steps and Ropes Course certificates.
EXHIBIT 8 - Community Corrections officer's report.
54 Thank you, everybody, we can adjourn the court.
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