Director of Public Prosecutions v Hose

[2020] VCC 207

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR-15-00228

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL HOSE

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	3 March 2020
DATE OF SENTENCE:	3 March 2020; Revised 18 March 2020
CASE MAY BE CITED AS:	DPP v Hose
MEDIUM NEUTRAL CITATION:	[2020] VCC 207

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp	Office of Public Prosecutions
For the Accused	Mr M. Sturges	Stary Norton Halphen

HER HONOUR: 

1This is a matter that is before me for breach of a combination sentence, a term of imprisonment and a community corrections order imposed by me on 14 July 2015.

2The circumstances of the offending and the reasons for sentence were dealt with by me in considerable detail in my original reasons for sentence. I do not propose to repeat them but I adopt them here. There is nothing different in terms of the circumstances of the offending so far as the pitiable circumstances of Mr Hose's early life and upbringing and the disadvantage he suffered as a result.

3What I set out there is as applicable today as it was then and the findings that I made have been fortified in my view by the findings in the very helpful neuropsychological report of Susan Carey, dated 23 October 2019.

4It was inevitable, as a result of the breach of the CCO by both non-compliance and further offending in the eight month period between the time Mr Hose was released from serving the original custodial part of the sentence imposed by me and the time he was remanded in custody for further offending, that he struggled to maintain and sustain the hopes that he had so clearly articulated at the time I handed down my original sentence. That is, to be able to lead a more substance free, violence free and anger free life in the community. The very deficits that led to his sorry offending history were also deficits that operated as a disadvantage upon his release. Despite the supports that were offered through the community correction order and despite his at times manifest attempts and desires to comply with the CCO, he was not able to do so.

5Given the nature of the breach offending, further offences of a like nature which led ultimately to the imposition of a term of imprisonment by another judge of this court on 8 November last year for a total effective sentence of four years and eight months with a three year non-parole period, it is inevitable that the CCO component of the sentence that I imposed must be cancelled.

6I find the breach proven both by reason of the non-compliance identified in the breach report and the commission of the further offences that were dealt with in the County Court on 8 November 2019 and also other offences that were dealt with four days later in the Ringwood Magistrates' Court.

7When I first sentenced Mr Hose, I imposed a total effective sentence of two years and eight months with a non-parole period of two years and two months followed by a three year CCO with significant therapeutic conditions. I made a declaration pursuant to s 6AAA of the Sentencing Act that, but for the pleas of guilty, I would have imposed a total effective sentence of six years with a non-parole period of three years. That clearly must remain as a guiding benchmark for me in terms of the sentence that I then thought would be appropriate had he not pleaded guilty, having regard to the seriousness of the offending and Mr Hose's significant disadvantage.

8So any sentence that I impose today in resentencing must still have that s 6AAA declaration of six years with a non-parole period of three as the benchmark below which my sentence must fall, but which still must take into account his guilty plea. Nothing has changed in his circumstances to operate to his disadvantage in that regard.

9When I originally sentenced Mr Hose, I came to the view that his prospects for rehabilitation were guarded. I remain of that view. The material that was then before me is fortified by the neuropsychological report of Ms Carey, which demonstrates that I do not need to further qualify my assessment of Mr Hose’s prospects for rehabilitation.  The description of his prospects as guarded implies a risk of his not being able to comply with the CCO and of committing further offences. So the fact that he has does not mean that he has fallen down from the estimate he had before. Rather, that the fact is that his risk factors materialised. So I treat him as somebody with guarded prospects of rehabilitation, not worse than that.

10Having set out the total effective sentence and the s 6 AAA declaration for the original sentence that I imposed  and having regard to the fact that the breaches were both by way of non-compliance and commission of further offences occurring in the eight month period after Mr Hose's release and before his subsequent remand in custody, I have determined that the appropriate effect of the resentencing, which I must do as if I were sentencing for the original offences afresh, is to resentence for each of the original offences in a way that will increase the total effective sentence from the two years eight months plus the three year CCO to a total effective sentence of four years and four months.

11Before I make the formal orders in respect of the seven individual charges and the partial cumulation orders, I repeat the other orders that I am required to make on resentencing. I make a declaration that Mr Hose is sentenced as a serious violent offender pursuant to s 6B of the Sentencing Act in respect of Charge 1.  I propose to impose partial, not full, cumulation for the sentence on Charge 1 with the base sentence and I do so because I consider that appropriate in the interests of justice and having regard to totality and proportionality.

12All other sentences apart from the base sentence are either wholly concurrent or partially concurrent with the base sentence.

13I also confirm, if I need to, the compensation orders of $250 to Priceline Pharmacy and $8,250 to Video Ezy that were made on the previous occasion in respect of Charges 4 and 6 respectively and confirm, in respect of Charges 2, 4, 5 and 6, the forfeiture order made in respect of those charges and in respect of the property itemised on the original forfeiture order.

14On the matters before me today then, I find the contravention of the community correction order proven. The original order is cancelled and, apart from resentencing Mr Hose on the original charges, no further penalty is imposed in respect of the breach.

15On Charge 1 of threat to kill, I originally imposed a sentence of 18 months' imprisonment. Today, I impose a sentence of two years and nine months in respect of that.

16On Charge 2 of theft, I originally imposed a sentence of six months.
Today I impose a sentence of nine months.

17On Charge 3 of common assault, I originally imposed a sentence of six months and today I impose a sentence of nine months.

18On Charge 4 of robbery, I originally imposed a sentence of 12 months.
Today, I impose a sentence of 18 months.

19On Charge 5 of armed robbery, I originally imposed a sentence of two years. Today, I impose a sentence of three years.

20On Charge 6 of armed robbery, I originally imposed a sentence of two years and today I impose a sentence of three years.

21On Charge 7 of being a prohibited person in possession of an imitation firearm, I originally imposed a sentence of 12 months and today I impose a sentence of 18 months.

22When I originally resentenced, I indicated that I proposed to direct that two years of that total effective sentence of four years and four months be served cumulatively upon the sentences that are being served. I noted that the two years and eight months that had been served already by Mr Hose in respect of my original sentences was properly to be counted and taken into account as part of the sentence already served under the resentencing of four years and four months.

23However, I made an error in the calculation of the period of time available for cumulation on the current sentence once the pre-sentence detention on my original sentence was taken into account and I made an error in the declaration of the new single non-parole period as a result. My original orders were in these terms:

“I again make the sentence on Charge 5 the base sentence and I declare that 12 months of the sentence on Charge 1 and four months of the sentence on Charge 7 be served cumulatively upon each other and upon the base sentence on Charge 5. All other sentences, that is the sentences on Charges 2, 3, 4 and 6 are to be served concurrently with the base sentence.

That makes a total effective sentence of four years and four months and I declare that two years of that total effective sentence be served cumulatively on the sentences that are currently being served.

I must fix a new non-parole period. His Honour Judge Cahill imposed a three year non-parole period on a head sentence of four years and eight months. I fix a new non-parole period from the date of the imposition of Judge Cahill’s sentence of five years.  That, in my view, maintains the significant proportionality I had indicated I wanted to have between the head sentence and the non-parole period for Mr Hose in respect of the sentences I imposed, in respect of the sentences I would have imposed had he pleaded not guilty and the great gap between head sentence and non-parole period imposed by His Honour Judge Cahill. So I have taken into account the importance of having a significant gap still between the head sentence and non-parole period so as to encourage supervised support and assistance to Mr Hose upon release.

I declare that the period that Mr Hose has been in custody in respect of these offences, namely 32 months, that is two years and eight months, be counted and reckoned as a period of imprisonment already served under this sentence. I direct that it be deducted administratively.

So the new single non-parole period for the State sentences is to commence on 8 November 2019 and this sentence is imposed in accordance with the decision of R v Stares [2002] VSCA 70 at [24]–[25], where a declaration was made that there was an expectation that the pre-sentence detention of 270 days, which I declared on 24 July 2015 as the pre-sentence detention served up to the time of my original sentence, will be administratively taken into account.”

24After imposing sentence, it was brought to my attention that a two year cumulation period would not permit the full 2 years and 8 months pre-sentence detention to be counted. If full credit is given for that time, as I intended, only 1 year and 8 months is available to be cumulated on the sentence imposed by Judge Cahill.

25It was also brought to my attention that, in order to give effect to my intention that the full period of 2 years and 8 months pre-sentence detention be counted when the new non-parole period was fixed, again, only 1 year and 8 months could be added to the existing non-parole period. And further that, as the new non-parole period commenced from the date of Judge Cahill’s sentence but credited all pre-sentence detention in respect of both matters, it had to be declared differently.

26Having advised the parties and received their consent to the course I proposed to take, I correct the sentences pronounced pursuant to s 104A(1)(a)(iii) of the Sentencing Act 1991 (Vic) in the following terms:

a)I declare that 1 year and 8 months of the total effective sentence of 4 years and four months be served cumulatively on the sentences already being served;

b)I fix a new non-parole period from 8 November 2019 of 7 years and 4 months;

c)I declare that the period that Mr Hose has been in custody in respect of these offences, namely 32 months, that is two years and eight months, be counted and reckoned as a period of imprisonment already served under this sentence and direct that it be deducted administratively;

d)I note that this sentence is imposed in accordance with the decision in R v Stares [2002] VSCA 70, in the expectation that 2 years and 8 months pre-sentence detention in respect of this sentence and 298 days in respect of the sentence imposed on 8 November 2019 will be administratively taken into account.

27Finally, having regard to the matters that I identified in the original reasons for sentence and the additional matters identified in the report of Susan Carey, I urge the Corrections authorities to carefully consider the matters that were outlined in my reasons for sentence and that have been outlined in Ms Carey's report in relation to the need for structured programs and the types of programs and supports necessary for Mr Hose, both in custody and upon his release on parole, if the parole authorities see fit to release him, in order to encourage and support this disadvantaged man to be able to move towards a drug and offence free life and a better life in the community. He is, as I noted on the first occasion, our responsibility.  It is the failure of our community and our society to provide him with the supports he should have had as a child that have led to the position he now finds himself in and others find themselves in as a result of his offending behaviour.

28I also urge the Corrections authorities to use their best endeavours to support Mr Hose to be released on parole and provided with supports on parole. In my view, his interests and the interests of the community generally are best served by a supported release into the community rather than having him have to serve his whole sentence by reason of his previous history and have him returned to the community without supports. This is a man who needs intensive supports and should get them.

29HER HONOUR:  Mr Hose, I do hope that this means it is the end of the offending history for you at the moment and that you can start another plan for continuing to work on yourself as you obviously have been doing at Loddon and then work on a safe and supported release into the community, so your future is going to look better.

30OFFENDER:  Yep.

31HER HONOUR:  Thank you everybody for your assistance.

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