Director of Public Prosecutions v Hose

[2019] VCC 1821

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00797

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL HOSE

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2019
DATE OF SENTENCE:	8 November 2019
CASE MAY BE CITED AS:	DPP v Hose
MEDIUM NEUTRAL CITATION:	[2019] VCC 1821

REASONS FOR SENTENCE
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Subject: Armed Robbery
Catchwords: guilty plea – hold up at a post office – offended whilst on bail for other offences – serious offending – prior convictions for armed robbery – background of extreme disadvantage – intellectual impairment attributable in part to deprive upbringing – guilty plea at the earliest opportunity – genuine remorse – rehabilitation not to be discounted – total effective sentence of 4 years and 8 months imprisonment with a minimum non-parole period of 3 years
Legislation Cited:
Cases Cited: Bugmy v The Queen [2013] 249 CLR 571
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Khan
For the Accused	Ms A. Sharpley

HIS HONOUR:

1Paul Hose, you have pleaded guilty to one charge of theft and one charge of armed robbery. 

2You have also pleaded guilty to three summary offences, namely committing an indictable offence, armed robbery, whilst on bail, contravening a family violence intervention order and drive whilst disqualified.

3On 24 December 2018 around 4 pm, you went into the Australia Post Office at Blackburn.  You walked to the counter where you removed a handgun from a satchel and pointed it at a postal worker's chest.

4You asked him where the safe was located and threatened to kill him if he did not open it.  He removed a small safe from behind the counter and showed you it contained no money.  You put the handgun back into your satchel and demanded to speak to the manager.  He told you the manager was in the staff mailing room behind the counter.

5You climbed over the counter and escorted the worker into the mailing room where you removed the handgun from your satchel, pointed it at the manager and demanded she remove the money from the safe.  You told the other worker to sit on the floor.

6When the safe was opened, you gave him the satchel and told him to fill it with money.  You escorted the manager at gunpoint back to the counter where you removed cash from the till.  In the meantime, the mail worker had filled your satchel with cash.  You took it from him and told him to remove the CCTV hard drive.  He appeared not to understand you so you disconnected the coaxial cables and removed it yourself.  You told the two staff to stay in the office and not to move and you said, if they called police, you would come back and kill them both.  You fled through a rear door taking the hard drive and $2,795.10 in cash.  That conduct constitutes the offence of armed robbery.

7On the day before, 23 December, you had been charged with possessing methamphetamine and the theft of a motor vehicle and were bailed to appear in the Magistrates' Court at a later date.  You committed the armed robbery whilst you were on bail and that is the conduct that constitutes Summary Charge 8, committing and indictable offence whilst on bail.

8In the morning, before you went to the post office, you showed your estranged partner what appeared to be a black coloured handgun in a video chat and, very shortly after you committed the armed robbery, you sent her a photo of a black bag containing cash and a message, 'For us', with kisses.

9Police arrested you on 27 December.  You told them you had been visiting friends throughout the day on 24 December.  You said you were not sure of your movements at the time the armed robbery was committed.

10On 14 January 2019, you called police in response to a message about your bail conditions.  You made the calls from your partner’s address which breached the family violence intervention order prohibiting you from going there. Your presence at her home constitutes the conduct in Summary Charge 12, contravene a family violence intervention order.

11Police went to her address where they saw you leave on a motorcycle. The motorcycle was stolen on 14 December 2018 and you have pleaded guilty to theft of it. That constitutes Charge 1, theft.

12You were a disqualified driver at the time and you have pleaded guilty to Summary Charge 13, drive whilst disqualified.

13Police arrested you and, when they interviewed you, you told them you had bought the bike for $200, you knew it was stolen but you were not involved in the theft.  You said you were not involved in the armed robbery at the post office.  You were remanded in custody where you have remained to this day.

14You offered to plead guilty shortly after the police brief was served. 

15You have admitted a criminal record, over 10 court appearances, between December 2010 and January 2017.  Relevantly, you have three prior convictions for armed robbery.

16On 6 May 2011, you were convicted of armed robbery and sentenced to two years' imprisonment with a non-parole period of six months and, on 14 July 2015, you were convicted of two counts of armed robbery and sentenced to a term of imprisonment of two years with a community corrections order for three years for those armed robberies and other offending. 

17You also have two prior convictions for offending while on bail in the Magistrates' Court at Dandenong on 28 August 2014 and the Magistrates' Court at Melbourne on 1 October 2015.

18I turn now to your personal circumstances.

19You were born on 12 September 1992 and are aged 27 years.  When sentencing you in 2015, Hampel J described your childhood,

'As one of shameful deprivation and disadvantage.'

20She continued and I quote,

'You were exposed to your mother's heroin addiction and your father's violence.  They separated when you were three.  During your mother's absence thereafter for many years due to her serving terms of imprisonment or when she was at liberty, her inability and unsuitability to care for you, no one took responsibility for trying to address your disturbed, aggressive and challenging childhood behaviours, no doubt resulting at least in large part from what you had been exposed to.

'Your schooling was poor and interrupted.  You were not surprisingly unable to make or keep friends and connect in social networks.  All of these points to a childhood youth that was blighted by a combination of active abuse and abuse caused by neglect.'

21By the age of 13, you were living on the streets, you were abusing drugs and committing crimes.  In your childhood, you were so neglected there is uncertainty about your birthday and your schooling records.

22At 15, your first sentence of Youth Justice Centre detention was imposed.  Several more followed, until May 2011, when you were sentenced to imprisonment, for armed robbery, in an adult gaol for the first time.  You served further short terms of imprisonment in 2012.

23In 2014, you were arrested for a wide range of offences and, for three months following, you had done well on credit bail.  A magistrate released you on a community correction order.  Unfortunately, you reoffended within weeks when you held up a FoodWorks store cashier with a gun, it was unclear whether it was genuine or an imitation, and only days later, using the same gun, you did the same thing at a Video Ezy store.

24Judge Hampel sentenced you for the two armed robberies, and other offending, to two years eight months' imprisonment with a non-parole period of two years and two months in combination with a three year community correction order.

25When you were released from prison in 2018, you went to live with your father.  Initially you were drug free and attending your CCO appointments and you also attended for judicial monitoring.  You obtained casual bricklaying work but you fought with your father, and your daughter's mother, and fell into old habits, abusing drugs and committing these offences.

26It appears you committed the armed robbery at least in part to get money to try to improve things for your ex-partner and your daughter, Micaiah, who is now five years old.

27In 2015, a consultant psychologist, Carla Lechner, assessed you.  Your IQ tested in the borderline range.  In Ms Lechner's opinion,

'There appears to have been some degree of deterioration in Mr Hose's cognitive skills possibly due to brain injury, substance abuse or both.'

28She recommended a neuropsychological assessment.

29On 24 September 2019, a clinical neuropsychologist, Susan Carey, assessed you. In relation to your offending, she wrote,

'He was particularly remorseful about the effect of his offending behaviour of the woman behind the counter saying, "Waving a gun in her face was pretty bad, gutless".'

30According to Ms Carey, you all understand the difference between being sorry because you were caught and genuine remorse for the harm you caused the victims of your offending.

31Ms Carey estimates your intelligence to fall within the low average range.  You told her you had suffered head injuries when you were assaulted at 16 years of age and in a motorcycle accident, in 2015, and that you had also suffered a possible stroke when you were in your mid-teens.

32In her opinion, you have suffered a brain injury which has caused you cognitive impairment.  The causes of that brain injury includes your unstable childhood, your disrupted education and early and chronic polysubstance abuse and is possibly exacerbated by several mild head injuries and a stroke.

33Your impairment has compromised your ability to make the right decisions and to think clearly about the consequences of your actions.  In her view, your use of drugs makes these difficulties worse.

34Urine screens show you have been drug free in prison.  You work as a billet and have improved your health, putting on weight and regularly running.  You have some phone contact with your daughter and a few visitors.

35In written and oral submissions, Ms Karapanagiotidis, on 20 August 2019, and then Ms Sharpley, on 28 October 2019, relied on the following factors in mitigation of penalty; your early plea of guilty, your genuine remorse, your background of extreme disadvantage and your brain injury. It was submitted your prospects of rehabilitation, although guarded, are nonetheless not to be completely discounted, given your genuine, though unsuccessful, attempts to advance your rehabilitation when you were released from prison in 2018 and your desire to turn your life around for the benefit of your daughter.

36I accept the force of these submissions and have taken them into account to moderate the sentences and non-parole period I would otherwise impose.

37Mr Roper, who appeared for the prosecution, submitted: having regard to your use of the firearm to intimidate two vulnerable postal workers, your theft of the CCTV hard drive and the threat to the workers to try to avoid detention, and that you had been arrested and charged with drug offences on the previous day and admitted bail, your crime was 'not at the lower end' of offending of armed robbery.

38He also submitted your three prior convictions for armed robbery and two prior convictions for committing an indictable offence whilst on bail demonstrated the need for not only general deterrence but specific deterrence in your case.

39I accept that these are also significant considerations in the sentencing process. 

40Armed robbery is an inherently serious offence. Under s5(2H) of the Sentencing Act, the law directs me to make an order for imprisonment unless specific statutory exceptions apply and none do in your case.

41I must also have regard to the cumulation provision under s16(3C) of the Sentencing Act because you offended while you were on bail.

42The offence of armed robbery is very serious.  While no victim impact statement was filed, your violent actions, as you yourself acknowledged, will have been frightening for the innocent victims.  General deterrence and, in your case, specific deterrence are important sentencing considerations,

43However, following the principles in Bugmy v The Queen [2013] 249 CLR 571, your social deprivation and mental illness are also relevant sentencing considerations and, in my opinion, it is appropriate to moderate the weight to be given to general and specific deterrence in favour of your rehabilitation.

44Please stand, Mr Hose.

45By this sentence, I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to the protection of the community and your rehabilitation. 

46Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows.

47On Charge 2, armed robbery, you are convicted and sentenced to four years and six months' imprisonment.

48On Charge 1, theft, and I note you have two prior convictions for theft of a motor car, you are convicted and sentenced to two months' imprisonment; and on Summary Charge 8, commit an indictable offence, armed robbery, whilst on bail, you are sentenced to three months' imprisonment.

49I direct that one month of the sentence I have imposed on Charge 1 and one month of the sentence I have imposed on Summary Charge 8 be served cumulatively on the sentence I have imposed on Charge 2, armed robbery, and each other.

50In relation to the summary charge of contravene family violence intervention order, as the only evidence of your contravention is your presence at your
ex-partner's home, and there is no evidence of any harm to her, I am satisfied a monetary penalty is appropriate and you are convicted and fined $200.

51In relation to Summary Charge 13, driving whilst disqualified, as it is your first offence of the type, you are convicted and fined $500.

52The total effective sentence of imprisonment is four years and eight months.  To mitigate your punishment and to promote your rehabilitation through conditional freedom, taking into account particularly your disadvantaged background and your intellectual impairment, I fix a minimum non-parole period release of three years.

53I declare you have already served 298 days of your sentence by way of pre-sentence detention.  I also declare, but for your plea of guilty, I would have sentenced you to six years' imprisonment and fixed a minimum non-parole period of four years.

54By consent, I make orders for the forfeiture and disposal of the items listed in the two orders filed with the court and, under s.89(4) of the Sentencing Act, I order that all driver licences and permits held by you be cancelled and that you be disqualified from obtaining a driver licence or learner permit for a period of six months from today's date.

55Ms Khan, are there any matters arising out of that?

56MS KHAN:  Nothing arising, Your Honour.

57HIS HONOUR:  Thank you.  Ms Sharpley?

58MS SHARPLEY:  Nothing, Your Honour.

59HIS HONOUR:  All right.  Thank you.

60Remove Mr Hose please.

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