Director of Public Prosecutions v Horton
[2015] VCC 1435
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00079
CR-15-00204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN HORTON |
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JUDGE: | Lawson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2015 | |
DATE OF SENTENCE: | 1 October 2015 | |
CASE MAY BE CITED AS: | DPP v Horton | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1435 | |
REASONS FOR SENTENCE
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Subject: Criminal Sentence.
Catchwords: Criminal law – sentencing – armed robbery (multiple charges) – soft targets – significant prior criminal history – disrupted childhood – immediate term of imprisonment imposed.
Legislation Cited: Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert (Plea) Ms M. Mackaness (Sentence) | Vaille Anscombe, Acting Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker |
HER HONOUR:
1 Adrian Horton, you have pleaded guilty in respect to two indictments relating to three charges of armed robbery.
2 Indictment E12907717A relates to one charge of armed robbery and that occurred on the 28th day of August 2014, and Indictment E12907717B relates to two charges of armed robbery, Charge 1 occurring on 1 August 2014 and Charge 2 occurring on 18 August 2014.
3 The charge of armed robbery is a serious one and that is evidenced in the maximum penalty that is prescribed by parliament, that is 25 years' imprisonment.
4 I shall now proceed to sentence you on the basis of the summary of the prosecution opening at plea hearing. There is no dispute about those facts.
5 Each of the three armed robberies were committed on soft targets, namely fast food stores.
6 I shall deal with them chronologically.
7 An armed robbery occurred on 1 August 2014 at approximately 3.15 pm at the KFC store, 242 Racecourse Road, Flemington. The second armed robbery occurred on 18 August 2014 at 7.43 pm, at the Subway store at 528 Lonsdale Street, Melbourne. They are the subject of Indictment E12907717B. The third armed robbery in time, occurred on 28 August 2014 at approximately 6.35 pm at the Subway store in Malvern Road, Prahran. That is the subject of Indictment E12907717A.
8 On the first occasion, on 1 August 2014, when you attended the KFC store, Flemington, you entered the store wearing a hoodie, with the hood over your head. You produced a kitchen knife and held it at the KFC employee, a young male and demanded money. There were three other staff members present, who witnessed the incident. You then jumped the front serving counter whilst ripping the register off the counter, causing it to smash and forcing open the till. You obtained $214 cash and fled the premises.
9 In respect to the armed robbery on 18 August 2014 at Subway, Lonsdale Street, Melbourne. There were two Subway employees present in the store and they were behind the serving counter, about to close up for the night. There were no customers in the store when you entered. You were carrying a shopping bag, you placed the bag on the floor and produced a screwdriver and then walked around the counter to the staff area. You approached the employee who was standing at the till, counting the day's takings. You held the screwdriver at the employee and demanded he open the till. You then grabbed the till from under the counter and forced it open with the screwdriver and took approximately $630 cash, and then fled the store.
10 You then committed an armed robbery on the Subway store, Prahran on 28 August 2014 at approximately 6.35 pm. When you entered the store there were no customers present. There was one employee, a young woman who was at the rear of the store. She came to the front counter when she heard the door sensor. You jumped the front counter, placed your left hand on the glass display top of the counter and held a screwdriver at her and demanded that she open the till. She complied with your request and opened the till, whereby you took $800 cash. You apologised to her, saying you had to do this, and you left the store.
11 On each occasion an image of the robber was obtained from CCTV footage within the stores.
12 You were arrested by police on 2 September 2014 and interviewed, during that interview you denied any involvement in the armed robberies.
13 Police were able to connect you to the various armed robberies from the still images taken from the CCTV footage, a palm print found on the till, with respect to the Subway store, Melbourne and some fingerprints on the display glass counter top of the Subway store, Prahran.
14 You told police about your traumatic childhood and history of institutionalisation. You informed them that you had been homeless for a couple of months, and living off the streets. You said you had been using a little heroin every now and then, ever since you had been released from prison and that you were using about once a week. You were living on Centrelink benefits.
15 Mr Horton, the circumstances of each of those armed robberies are serious. On each occasion you went into the stores, armed and threatened staff before robbing them. It is evident from the statements taken by the police in the depositional material that you caused great harm to each of the employees that were present on each occasion of the armed robberies.
16 Jared Walker, who was present at the KFC store states in his victim impact statement, that whilst these events were unfolding he felt scared and intimidated. Another employee, Halima Abdi, stated that during the event he was shaking.
17 An employee of the Subway store, Melbourne, Sachin Devabhkatani, stated he was really scared he was going to be stabbed because you were close to him and pointing the screwdriver at him. He is very shaken by this event. His co‑worker, Kamal Khal, witnessed you being threatening to his co‑worker and he too was very shaken by the event.
18 Ezra Kneebone, the young woman who was working at the Subway store, Prahran confirmed in her statement that events happened really quickly. She did not know what to do because she was so scared. She just did what she was asked to do, and when you left she burst into tears and contacted her manager and called triple O, could not stop crying. She was very scared until the police came.
19 I consider that these offences are serious examples of this sort of offence of armed robbery. You deliberately targeted soft targets, by your threats and aggressive behaviour and use of weapons you instilled fear in these workers.
20 In sentencing you, there is a need to emphasise general and specific deterrents and denunciation.
21 I will just go through the procedural history. On 19 January 2015, a contested committal was held in respect to the Subway robbery, Prahran. On that occasion, both the informant and a fingerprint expert were called and cross‑examined. You entered a plea of guilty to the two other armed robberies at the earlier stage and they proceeded by way of straight hand‑up brief. Eventually, in relation to the Prahran, Subway armed robbery you pleaded guilty and therefore the matter was not listed as a trial and proceeded as a plea hearing.
22 I will now refer to your personal circumstances and background. Initially I will refer to your criminal history. I had regard to your prior criminal record, that was admitted. You have a shocking history of offending for a man of only 28 years. I note that you were born in Tasmania and that material provided in the plea hearing does refer to past criminal history associated with your life in Tasmania prior to coming to Victoria in 2004, and I have only regarded that material by way of context and background and have not taken it into account in sentencing you.
23 Your Victorian criminal history commences in 2004 and spans the period from 22 December 2004 until 21 December 2010. It seems throughout your late teenage years and into adulthood that you have been predominantly held in custody for various offending, including dishonestly offences and relevantly serious offences involving violence against persons.
24 At the Melbourne County Court on 12 August 2005 you were convicted and sentenced to five years' imprisonment with a nonparole period of three years, in respect to a charge of intentionally causing serious injury. That concerned an incident when you were involved in an altercation with a male passenger. On that occasion you were with two others. The passenger took exception to you and your friends smoking whilst on the train, and after alighting from the train, your group followed him and severely assaulted him, cutting him with broken glass, causing serious injuries. The circumstances of that matter are set out in the sentencing remarks of Her Honour Judge Campton that were provided to me during the plea hearing.
25 Thereafter, you were dealt with for an unlawful assault on 26 October 2005 at Heidelberg Magistrates Court and you received a term of imprisonment for a recklessly cause injury charge, and on 21 April 2010, His Honour Judge Gamble convicted you of an armed robbery and robbery charge and sentenced you to a term of imprisonment of four years, with a nonparole period of 36 months, and it is apparent that you spent the entire four years in custody and that you were never released on parole.
26 I note these events occurred about a month after you being released from prison. Your actions speak of a very marginalised existence outside a custodial setting. It is evident that you are at severe risk of being institutionalised, given the amount of time that you have spent in custodial setting since your 18th birthday.
27 You have a tragic history of deprivation as a young man. Your mother was schizophrenic and your father did not play a very significant role in your upbringing.
28 You are one of three brothers, one of whom is now deceased. You have an older surviving brother, aged 30, who has an acquired brain injury following a motor vehicle accident. You recently attempted to make connections with him and your father but you found that it was a horrible experience. You effectively have no real connections with family, so that source of support is now finished.
29 As a young child you were made a ward of the state before the age of five and you were placed with a material uncle, an alcoholic, and then a series of foster homes before being placed with your material grandmother from age five to ten, for some respite care. Sadly, she died when you were aged ten and that was difficult for you because you had formed a very close attachment to her. You were then separated from your older brother at age ten and placed with various foster placements, and there has been reports of physical abuse whilst placed in care and in juvenile settings.
30 I noted that you were detained in secure welfare from age 11 and only had brief periods in the community thereafter. You moved to Melbourne at age 17, with some assistance from the authorities in Tasmania and the assistance of an organisation known as White Lion. But you were quickly involved in more offending and then detained in a youth detention centre, due to a breakdown with the supports that were to be provided to you in Melbourne.
31 Unfortunately, since that time you have had an ongoing history of spending periods in custody as a consequence of your escalating criminal behaviour.
32 I note that you had little by way of formal schooling and you have only attended primary school up to grade 5, and you avoided schooling in youth training centres.
33 You do not have any real significant work experience, but I note you have obtained some certificates in hospitality, first aid and industrial cleaning from courses that you have undertaken in prison and you do have some labouring skills such as bricklaying and welding.
34 I read and took into account Ms Cidoni, psychologist whose report of 26 August 2015 was tendered. She related your history of severe disadvantage with significant trauma, including abuse in care, abandonment and displacement in the past. She said you presented to her as demoralised and depressed, her formal testing of you showed that your intelligence was indicative of below average capacity with a full IQ scale of 82. She considered your mental health was deteriorating, she noted pervasive feelings of hopelessness and suicidality and thought you were at risk. She said that you were struggling with fluctuating mood depression at one end and mania on the other, and she said there was some concerning evidence of psychosis that obscured a clear diagnosis and she considered there appeared to be signs of an emerging personality disorder.
35 Whilst you do have a history of substance abuse commencing in your teens, you denied to Ms Cidoni that that was present in the armed robberies that are the subject of the charges and you told her that your behaviour was motivated by a desire to return to prison. It is imperative that the authorities give proper consideration to her alarming report and I recommend that efforts should be made whilst you are in custody, to support you through the implementation of her recommendation of one on one counselling.
36 It is further important that in the event that you are released back into the community, that you have strong positive supports and stable accommodation such that you transition back into the community with appropriate supports. Without the supports in place I hold grave concerns for the protection of the community.
37 What does give me some comfort is what you wrote to the court. You expressed your sorrow to the victims and their families, you stated that you meant them no harm and that you have insight into how your conduct may have impacted upon them and the community.
38 You do acknowledge that everyone has the right to feel safe at work or in the community and you take full responsibility for your actions. You cannot take back what has been done, but you state that you can make sure that you do not do this again. You state that you will keep working with individual counselling and keep developing your social behaviours and self‑awareness. You have a lot of feelings of remorse for the victims and you are sincerely sorry. You indicate a desire upon your eventual release from prison, to keep working on your offending behaviours to give yourself as much support as possible, and you express your desire to want to be part of the community one day.
39 Having regard to that insight and self‑awareness that you demonstrate in your own words, it is the case that I do not consider that all hope should be abandoned for you and I consider that with strong appropriate supports, that you do have some prospects for rehabilitation. Overall, I remain cautiously guarded about your rehabilitation.
40 You desperately need extensive counselling and treatment to address the underlying offending behaviours and to support you to act in a more pro‑social way.
41 You have, however, recently demonstrated by your counselling that you do have the ability to reflect and have insight and self‑awareness and there is prospects of you learning from your past mistakes.
42 Mr Horton, in sentencing you, I have taken into account all the submissions that were made by Ms Walker. I accept that the pleas of guilty in respect to the first two charges of armed robbery were entered at the earliest opportunity, and the third charge, in time was settled prior to a trial. There is real utility in each of the pleas of guilty, you have spared the state the inconvenience an expense of a trial in respect to each of the charges and importantly you spared the victims of the various armed robberies, the further trauma of having to come along to court and give evidence on your trial and therefore you have facilitated justice and I have discounted your sentence accordingly.
43 I accept that your pleas are indicative of genuine remorse. I have had regard to your very difficult past and personal circumstances. I accept the experience for you growing up in an environment of abandonment, abuse and neglect has left its mark on you and compromised your ability to act in a mature and social way, and I have had regard to the principles set out in Bugmy v The Queen[1], and have taken that into account, notwithstanding your long history of offending.
[1] [2013] HCA 37.
44 I further accept by reason of the mental condition noted by Ms Cidoni, that prison is difficult for you and will continue to be so and I have taken that into account.
45 Ms Walker referred in great detail during your plea, about your personal difficulties that you have experienced since the lockdown associated with the prison violence in June 2015 and I accept that your conditions in detention have been extremely harsh. I do not have any specific information about what will occur once this sentence has been imposed, so I cannot speculate upon that, into the future.
46 Ms Walker sought a combination of imprisonment and a significant community corrections order to follow, as being an appropriate disposition. Mr Albert, on behalf of the Crown, sought an immediate custodial sentence, having regard to the gravity of your offending and past criminal history.
47 I have had regard to the guideline judgment of Boulton[2] that sets out the principles to be applied insofar as Community Corrections Orders are concerned. However, given the nature of your offending and notwithstanding the mitigating factors to which I have already referred, I consider that your crimes are so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of general deterrence and just punishment.
[2]Boulton v The Queen [2014] VSCA 342.
48 I do not consider that a Community Corrections Order either alone or in conjunction with a sentence of imprisonment that cannot exceed two years, would satisfy the requirements of just punishment.
49 The importance of general deterrence in cases of this kind has been repeatedly emphasised by the Court of Appeal in this state. In addition, the court must strongly denounce your serious criminal conduct.
50 As was stated to you on the occasion when you were previously, before this court in respect to robbery and armed robbery, our community is rightly concerned by such offending involving criminal activity against people who just are going about their lawful daily activities, who are subjected to such terrifying ordeals. A sentence must be of sufficient measure to adequately deter those within the community who might be minded to act as you did. Specific deterrence is a very real consideration for you as well, and the protection of community is also a relevant consideration. Having weighed and considered all the relevant sentencing factors, I propose to sentence you as follow.
51 Could you please stand now. I will deal with indictment E12907717A, that is the indictment for the armed robbery that was committed last in time, 28 August 2014. You will be convicted and sentenced to a term of four years' imprisonment. In respect to E12907717B, the first charge of armed robbery that happened on 1 August 2014, you will be convicted and sentenced to five years' imprisonment. The second charge of armed robbery on 18 August 2014, you will be convicted and sentenced to five years' imprisonment.
52 I will make the order that Charge 1 of the indictment E12907717B is the base sentence, so that is five years' imprisonment, and I make the following order for cumulation; I order that six months of the sentence imposed with respect to Charge 2 on that indictment be cumulative upon the sentence I have imposed on Charge 1, making a total effective sentence of five years and six months' imprisonment, and I direct that six months of the term imposed in respect to indictment E12907717A be cumulative upon that sentencing, making a totally effective sentence of six years' imprisonment and I direct that you serve four years' imprisonment before being eligible for parole.
53 I make a declaration pursuant to section 6AAA of the Sentencing Act 1991 (Vic), but for your pleas of guilty I would have sentenced you to eight years' imprisonment, to serve six years. I make a declaration of pre-sentence detention of 395 days pursuant to section 18 of the Sentencing Act 1991 (Vic) and I direct that that be recorded in the records of the court. I make the disposal order sought. I note that it was not opposed.
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54 That is the sentence. Have you got that all?
55 MS MACKANESS: Yes.
56 HER HONOUR: Yes.
57 MS MACKANESS: Thank you, Your Honour.
58 HER HONOUR: Did you want to have a word with your client before he gets taken down into the cells?
59 MS WALKER: I'll go downstairs and see him, Your Honour.
60 HER HONOUR: All right. So we can adjourn and Mr Horton can be returned to the cells. Thank you. Thank you both.
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