Director of Public Prosecutions v Hoskin-Lord

[2019] VCC 343

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 18-00812
CR-18-02180
CR-19-00524

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE HOSKIN-LORD

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Shepparton
DATE OF HEARING:	18 and 19 March 2019
DATE OF SENTENCE:	19 March 2019
CASE MAY BE CITED AS:	DPP v Hoskin-Lord
MEDIUM NEUTRAL CITATION:	[2019] VCC 343

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – sentencing on two indictments with related summary charges – burglary, theft, armed robbery, robbery, incitement, attempted armed robbery - attempted burglary – go equipped to steal – commit indictable offence whilst on bail – combination sentence imposed – 1 year imprisonment to be followed by a 2 year Community Correction Order with supervision, 150 hours community work, participation in programs for drug treatment and rehabilitation, mental health and offender behaviour programs and judicial monitoring – genuine participation in Koori Court – good prospects for rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil	John Cain Solicitor for Public Prosecutions
For the Accused	Mr J. Van Arkadie	Victoria Legal Aid

HER HONOUR: 

1Kyle Hoskin-Lord, you have pleaded guilty before me on two indictments.  The first Indictment is H12888882.1. There are six charges on the indictment:  one of burglary, one of theft, one of incitement, one of attempted armed robbery, one of attempted burglary, together with a related summary charge of going equipped to steal.  On the second indictment, J12883228, there is one charge of robbery and a related summary offence of commit indictable offence whilst on bail.

2The charges are serious and that is in part reflected in the maximum penalties prescribed by the law.  In respect to burglary and theft a ten-year imprisonment maximum or 1200 penalty units; incitement to commit an indictable offence, 25 years' imprisonment or 3000 penalty units; attempted armed robbery is 20 years' imprisonment or 2400 penalty units; armed robbery 25 years' imprisonment or 3000 penalty units; and attempted burglary ten years' imprisonment or 600 penalty units.  The summary offence of go equipped to steal is two-years maximum imprisonment and commit indictable offence whilst on bail, three months' maximum imprisonment or 30 penalty units.

3You also admitted your prior criminal history.  It is of limited relevance.  I noted there were three court appearances in total, one in Victoria, one in New South Wales and one in Queensland. 

4In the past you have been dealt with by the courts in respect to offending for which you received fines and the last court appearance in Victoria was on 21 April 2017, where without conviction your matter was adjourned for one year and you were ordered to pay $400 into the court fund in relation to contravention of a Family Violence Intervention Order, and discharging a missile to cause injury or danger. 

5I will now proceed to sentence you on the basis of the openings that were read to the court by the prosecutor Mr Cecil.  The circumstances of the first indictment relate to a spate of offences that occurred between 15 to 17 October 2017.  Your motivation for the offending was because you were heavily using methylamphetamines and mixing with the drug milieu and you owed some money for drugs. There was a threat that there was going to be a run-through at your place unless you paid a drug debt, and so you resorted to this offending.

6Charges 1 and 2 concern a burglary and theft from the Kialla Veterinary Clinic on 15 October 2017.  You forced entry to that clinic, damaging the rear wooden door.  When you were in the building you rummaged through some draws and cupboards and stole an iPod from the reception counter.  The security alarm was activated and police attended, but you had left the scene.

7Charge 3, the incitement charge, relates to an occasion in the early hours of 16 October 2017 where you were messaging another, Dylan Kilpatrick, trying to encourage him to commit offending that targeted service stations in your area, to rob them of money.  Fortunately he did not agree with your suggestions.

8Charge 4, the attempted armed robbery, relates to an occasion on 16 October 2017. At 4.40pm you attended a shared business at Shop 1, 81 Maude Street, Shepparton and approached the counter and demanded that the attendant, Vincent Crivelli, who operated the lotto section of the store, open the till and give you some money.  He refused your request, following which you said that you had a knife and you would jump the counter and stab him.  He picked up a set of steps to defend himself.  You reached over the counter towards the cash draw and he lifted the steps up above his head and you then stepped back and left the shop.  No money was taken from the cash draw.  Police attended and the incident was captured on CCTV.

9Charge 5, the armed robbery, occurred on 16 October 2017 at 4.53 pm. You walked to the counter and spoke to a shop attendant, Theresa Camino, at Bargain Buys, which is at 128 Fryers Street, Shepparton.  There you made three demands for her to empty out the till and told her that you had a knife and that you would use it.  She was fearful, having regard to the way in which you were speaking to her.  She thought you were going to use a knife, so she opened the till and took out all of the notes, which totalled $620.  You snatched the notes and left the store.  She was shaking following the incident. 

10You then disposed of your various items of clothing that you were wearing and a small 4 inch blade knife at a nearby public toilet. You went to the Target store and purchased a pair of shorts, which you changed into.

11Charge 6, the attempted burglary and the related summary offence of going equipped to steal, relates to the occasion on 17 October 2017 at 1.15 am when you went to Shepparton Fresh Baked Goods with another two men who have not been identified.  One drove you there and one kept a lookout.  You and your co-accused got out of the car.  You had a screwdriver in your possession, that is summary Charge 5, and the other man had a mini sledgehammer.  You attempted unsuccessfully to gain entry to the bakery using your screwdriver.  Police were alerted to your presence at the shop and attended, thereby interrupting your attempts to gain entry.  You then left by climbing over a side fence.

12You were arrested on 17 October 2017 at 9.50 am after being recognised as being the offender by the victim Camino in respect to the armed robbery charge. 

13A formal record of interview was conducted and you made various admissions concerning your involvement.  You initially denied any involvement but subsequently admitted the offending.  You told police your explanation for the offending was that you owed money for drugs and threats had been made that a run-through would be executed on the house where you were then living with Dianne Burgess and that you felt constrained to act to get money to stop that.  You were desperate at the time and had no other means of obtaining the moneys. 

14The second indictment relates to an occasion on Saturday, 3 November 2018 at about 11 am.  You and another, Shane Crowe, attended the Caltex service station in Archer Street, Shepparton.  There you went inside and demanded that the console operator, Stephen Warren, hand over money from the cash register.  He said “No”. You then made two further demands and he, believing he was about to be assaulted by , and fearing that you had a weapon, pressed the alarm button and did not hand over cash.

15You then grabbed the cash register till from the top of the counter and ran out of the service station.  The offending was captured on CCTV footage.  Your co-accused stayed outside the service station keeping a lookout. He left with you.  Later you went to a residence where you changed your clothes and forced open the cash register till to obtain cash to the value of about $701.  You made full admissions in relation to that offending in your record of interview.

16At the time of the robbery you were on bail.  Bail was granted on 23 October 2018 and extended on 2 November 2018 at the Shepparton Magistrates' Court. 

17Your explanation for this offending was that you had relapsed into using drugs and that you had agreed to assist your friend in the robbery as a means of supporting him.  You now acknowledge that your conduct was wrong.  The co-accused has not admitted any involvement in the offending and is contesting the charge, and is yet to be dealt with by the courts.

18The victims Vincent Crivelli, Theresa Camino and Stephen Warren have each declined to make a victim impact statement. However, having regard to the circumstances of the offending that I have just described, I am satisfied that your conduct, coupled with your aggressive verbal demands for money, would have been very frightening for each of them. 

19An important aspect of your case is that you have consented to having your charges each heard in the Koori Court Division and, in doing so, you agreed to participate in what is known as the sentencing conversation. 

20Uncle Len Harrison was the elder and respected person from the Yorta Yorta community involved in this case.  The Court of Appeal in this state has recognised that the sentencing conversation in the Koori Court is designed to further the reformation of Aboriginal offenders and participation in the process is not easy.  Indeed it is at times very challenging[1].

[1] See R v Steelie Morgan [2010] VSCA 15.

21Your active participation in the process is a factor that does mitigate your punishment.  You were very respectful to Uncle Len and presented as an intelligent, articulate and insightful young man and I am satisfied that you were genuine in your participation. 

22You made it clear that whilst being in gaol you have reflected on your conduct. You are genuinely remorsful for what you have done. You have insight into the connection between your offending and your heavy use of illicit drugs.  You acknowledge the seriousness of your offending and the effect of your offending on each of your victims and have offered to personally apologise to each of them.

23You indicated a willingness to and a need for change in your behaviour for the future.  You spoke about your ambitions to be a good father to your four young children and a desire to make a positive contribution to their lives and to the broader community generally. 

24Uncle Len acknowledged your very difficult past and emphasised that knowledge of culture is a very significant factor in bringing about change and healing and he shared with you his stories and life experiences.

25He encouraged you to change your thinking by actions such as finding out more about yourself and your culture and accessing services such as Link-Up and making the most of services that support fathers in a culturally appropriate way such as the Koori Men's Mentoring Program and also other programs designed to support men who are at risk of family violence to make positive changes in their lives.  He recommended that you speak to the Koori liaison officer at Port Phillip Prison to explore all those options to facilitate linking you to appropriate services and supports.  He acknowledged that you are a young man with a lot of potential who now needs to direct your energies to positive actions so that you may realise your potential.

26You were born in Inala in Queensland and identify as Aboriginal through your maternal grandmother, Sylvia.  You are an only-child.  You have faced many significant traumas in childhood that is comprehensively documented in the material I have read.  You have never known your father and your mother was not able to provide care for you in your formative years.  Your mother had her own problems with addictions to illicit substances and died at a very young age when you were only 20. 

27It is evident from the material that as a consequence of her substance use issues and involvement in sex work you were exposed to neglect and exposed to various forms of abuse, including emotional, physical and sexual abuse.  Your childhood was characterised by instability and transience and you had multiple foster placements.  From age six you were removed from your mum's care and placed with some 15 to 20 foster placements thereafter.

28You were able to renew your relationship with your mum at age 17 when you were released into her care, but unfortunately she was still dependent on drugs and was not a positive role model.  That relationship broke down within weeks and then you went to live with Dianne Burgess, one of your mother's friends.  You call her Nan; however, she is not your relative.  She is a frequent user of illicit drugs and introduced you to intravenous drug use. 

29You are very conflicted by your relationship with Ms Burgess.  She has in the past permitted you to live with her over the years but has also subjected you to verbal and physical abuse.  Since being in custody you have severed your ties with her and you  now recognise the negative impact of that relationship.

30I have had real regard to your background of significant disadvantage and its relationship with your offending[2].  I consider your history and significant disadvantage throughout your formative years is relevant to moral culpability in relation to your offending and also it left you vulnerable to substance abuse.  Your sentence will be moderated accordingly.

[2] See Bugmy [2013] HCA 37; Marrah [2014] VSCA 11.

31Your history and drug use in part does explain your behaviour, but in no way does it excuse your behaviour.  You personally acknowledged this openly in the sentencing conversation.  You accept your conduct was wrong and you understand its impacts on the victims involved and also the community, and in particular the Aboriginal community generally.

32In sentencing you there is a real need to emphasise deterrence both general and specific, denunciation and to provide for the protection of the community.

33You are a person who, despite the very significant depravations of your childhood, does have real potential to reform.  You are the father of four young children, two boys and two girls.  You have had a series of relationships with the children's mothers and up until your remand you were seeing your two sons on a regular basis for supervised access.  You maintain some telephone contact with your youngest daughter and I have not been told of any contact with the other daughter.  You have been in a relationship for the past 12 months and you are currently expecting a child with your partner.  You express a desire to want to support her and your unborn child upon your eventual release. 

34You completed Year 11.  You have qualifications as a chef and you are part-way through an apprenticeship as a flooring technician.  As well you have got various occupational certificates, including a fork-lift operations licence, a building industry white card and a working at heights certificate.  You have a strong and impressive work history.  Whilst in custody you have been productively employed in the kitchen and you are using your skills in a positive way.

35Mr Warren Simmons, the consultant forensic psychologist, in his report of 11 February 2019, documents your chronic issues with self-esteem and emotional regulation.  You have a long history of suicidality and also, you present with features of borderline personality disorder with some antisocial traits, although in his opinion these do not predominate.  I accept his expressed opinion that you may find your time in custody more onerous, given your personality problems and risk of suicidality.

36I have taken into account all the matters put on your behalf in mitigation by Mr Van Arkadie.  I have had regard to your cooperation with the police and the fulsome admissions made on each occasion relating to the offending the subject of both indictments.  I have had regard to your early pleas of guilty.  Your pleas of guilty were entered at an early stage once an appropriate indictment was formulated in respect to the first indictment and at the earliest possible stage in respect to the second indictment.  Insofar as the second indictment is concerned you also provided a written confession and provided police with a statutory declaration setting out your involvement.

37I accept there is real utility in the pleas.  You have spared the cost and inconvenience of trials and you have facilitated the course of justice.  Importantly, each of the victims have been spared the further trauma of having to come to court to give evidence and be cross-examined. 

38I accept your pleas reflect genuine remorse. 

39I have had regard to your significant background of family difficulties and your subsequent addiction to drugs and lack of appropriate role models whilst growing up. 

40I accept that you have, through your plea of guilty, expressed acceptable of responsibility for your conduct and also at the sentencing conversation you expressed a personal willingness to apologise to each of the victims.

41You have been abstinent whilst in prison.  You have committed to leading a drug-free life upon your eventual release.  Post-offending, whilst on bail you were able to demonstrate a period of abstinence from drug use and that was confirmed by the urine drug screens that were provided by the GP.  Also you attended upon Leanne Sangster, the Koori alcohol-drug diversion worker, for some counselling.  Her letter indicates that you were willing to obtain support and engaged well with her.

42I have had regard to your genuine participation in the sentencing conversation and I accept that prison is more onerous for you because of your psychological conditions as set out in Mr Warren's report, and also the risk of self-harm.  

43You have commenced to take tentative, positive steps to address your underlying offending behaviour.  That is reflected in your presently stated commitment to change, the fact that you have not been using whilst in custody and you have been employing your time well in custody.  I accept you do have reasonable prospects for rehabilitation, but those prospects are linked to you making good your commitments and remaining drug-free, and also pursuing your goals of employment upon your release.

44Mr Van Arkadie sought a community correction order on your behalf.  Mr Cecil, the prosecutor, submitted that a period of imprisonment coupled with a community correction order was not outside the sentencing discretion; however, he submitted that the time that you have already served to date is not sufficient. 

45Given your significant steps towards your ultimate rehabilitation I consider that a disposition that does combine a term of imprisonment to be followed by a community correction order is appropriate.  You are still relatively youthful.  I consider your ultimate rehabilitation is very important not just for you as an individual but also for your children and such a disposition does offer the community the best protection for the future to ensure importantly that you do not reoffend.

46You have been assessed and found suitable for such an order.  I am mindful of the guideline judgment of the Court of Appeal in a case called Boulton[3], where it is accepted that such an order can be punitive and capable of deterring others and provide for specific deterrence. The court confirmed that such an order may be suitable even in cases of relatively serious offending which might previously have otherwise attracted a medium term of imprisonment.  I am satisfied in all the circumstances of the case that such an order is appropriate. 

[3] Boulton v R [2014] VSCA 342

47I have had regard to the gravity of your offending, the matters the subject of the first indictment was part of a series of incidents that occurred over a relatively short period of time and, as such, I consider they are part of a series and an aggregate sentence will be imposed.  I consider that they are serious offences, but the offending represented is at the lower end of the scale of seriousness for the types of offences that are represented, with the exception of the armed robbery.  I consider that was a serious example of armed robbery that  involved you threatening the female shop attendant in a manner in which that she was fearful for her safety.  It is to your credit that there was no overt violence.  That is you did not produce the knife.  So whilst it is a serious example, it is not the worst example of this sort of offending

48In respect to the second indictment, the robbery involved you targeting an easy target involving an attendant who was working alone at the Caltex service station.  Again there was no overt threats, so whilst it is a serious offence I consider it is at the lower end of the scale of seriousness for this sort of offence.  I have to have regard to the offending in its totality. I do consider that this sort of offending must be condemned.  On behalf of the community I denounce your conduct. 

49Insofar as the future is concerned, it is important that a sentencing court does look to the future as well as to the past.  There is real benefit to the community at large, as well as to individuals themselves and their immediate families, if future criminal activity can be avoided[4].

[4] R v Tiburcy [2007]

50In your case I have had regard to what was stated in the sentencing conversation and the genuineness of what you said insofar as your wanting to lead a normal life free of criminality. 

51In fixing sentence I must impose just punishment and I have had regard to the totality principles. 

52Because you committed the offence of robbery whilst on bail that is an aggravating feature and the legislation is such that I must impose a cumulative sentence unless I order otherwise, and I propose to do so in your case.  I will now sentence you, Mr Hoskin-Lord.  Could you please stand, I will read out the sentence in relation to the first indictment, H12888882.1. 

53It is charges of burglary, theft, incitement, attempted robbery, armed robbery and attempted burglary and the related summary charge of go equipped to steal.  You will be convicted and I impose an aggregate term of nine months to be followed by a two-year community correction order, the conditions of which I will state shortly. 

54In relation to J12883228, one charge of robbery and the related summary offence of commit indictable offence whilst on bail, I make the following orders:  Charge 1, you will be convicted and sentenced to nine months' imprisonment, that is the robbery; and Charge 2, convicted and sentenced to one month.  That is concurrent.  I order that three months of the sentence imposed upon Charge 1, the armed robbery, be cumulative upon the aggregate sentence I imposed on the first indictment. 

55So that brings it to a total effective sentence of one year and that is to be followed by a community correction order of two years' duration with conditions of supervision, 150 hours unpaid community work, conditions that you undertake programs as directed in respect to drug and mental health issues and offender behaviour programs with the understanding that any time that you complete for treatment will be credited against your unpaid community work.  There will judicial monitoring on 4 November 2019 at 10.30 am at Shepparton County Court.  You will be able to appear here and the matter will be dealt with via video link to Mildura County Court, where I will be sitting.

56I make a PSD declaration.  You have served 285 days of the sentence imposed this day and I direct that that be entered into the record of the courts. 

57I make the disposal order sought in relation to the clothing and accessories, a forfeiture order in respect to the knife, compensation order in respect to Bargain Buys in the sum of $620, and I make a forensic sample order.  That is on the basis that that order is consented to.  I consider that such an order is in the public interest having regard to the seriousness of your offending.

58Finally I make a s.6AAA declaration, but for your plea of guilty I would have imposed a term of imprisonment of three years, to serve two years' imprisonment. 

59I have to tell you in respect to the forensic sample order that you will be asked for a scraping from your mouth.  They will give you a little cotton bud.

60OFFENDER:  I did that.

61HER HONOUR:  You've done that?

62OFFENDER:  I've done that, yep.

63HER HONOUR:  All right.

64OFFENDER:   I can do it again, though.  It's no problem.

65HER HONOUR:  Yes, all right.  So there is not a retention order being sought here?

66MR CECIL:  I don't believe so, Your Honour.

67HER HONOUR:  No.

68MR CECIL:  I had no instructions about a previous sample being taken.

69HER HONOUR:  Do you know when that was taken?

70OFFENDER:  It was taken by Senior Constable Brock - Detective Brock.

71MR CECIL:  That would have been during the course of the investigation and often the samples are used up for the - - -

72HER HONOUR:  All right.

73OFFENDER:  I'm more than happy to do another one.

74HER HONOUR:  Very well.  So it just means you've got to cooperate.

75OFFENDER:  That's fine, yes.

76HER HONOUR:  If you don't cooperate they can use reasonable force.  I've just got to let you know that.

77OFFENDER:  No, that's fine.  I'll let them take it, yeah.

78HER HONOUR:  And they can take it by way of blood sample.

79MR CECIL:  Thank you.

80HER HONOUR:  All right,  that concludes my sentencing remarks. I have just got to get you to sign the orders.  Mr Van Arkadie's already explained to you how the orders work and explained the mandatory terms and he has indicated to me you understand and consent to the making of such an order.  Yes, all right.  I will get you to sign those.  We have to do two just to satisfy the records people, but the effect is the same, Mr Van Arkadie. 

81MR VAN ARKADIE:  Yes, Your Honour.  If I may approach the dock.

82HER HONOUR:  Yes, certainly.  Copies of those orders will be made for Mr Van Arkadie to provide to his instructor. 

83MR VAN ARKADIE:  Thank you for that opportunity, Your Honour.

84HER HONOUR:  Yes.  I think that concludes the matter now.

85MR VAN ARKADIE:  Yes.

86HER HONOUR:  Yes, that concludes the matter.

87OFFENDER:  Thank you, Your Honour.

88HER HONOUR:  Unfortunately Uncle Len wasn't feeling well, so he had to go home.

89OFFENDER:  Yeah.

90HER HONOUR:  But he passes on his regards.

91OFFENDER:  Thank you.

92HER HONOUR:  All right, thank you.

93OFFENDER:  When would I be able to make a formal apology to the victims?

94HER HONOUR:  You can write and provide that to Mr Van Arkadie and he can pass that on to the Crown.

95OFFENDER:  Okay.

96HER HONOUR:  Yes.

97OFFENDER:  Thank you.

98HER HONOUR:  All right, thank you.

99OFFENDER:  Just so I know.

100HER HONOUR:  I appreciate - - -

101OFFENDER:  Thank you.

102HER HONOUR:  - - - your attention and genuine participation.

103OFFENDER:  Thank you, Your Honour.

104HER HONOUR:  Thank you.  You can take him.

105OFFENDER:  Thank you.

106HER HONOUR:  Thank you both, gentlemen.  They are always a lot of effort, these processes, but well worthwhile.

107MR VAN ARKADIE:  Yes, Your Honour.

108HER HONOUR:  Can we adjourn.

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