Director of Public Prosecutions v Hoskins
[2018] VCC 2241
•19 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01585
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY HOSKINS |
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JUDGE: | HER HONOUR JUDGE M. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2018 | |
DATE OF SENTENCE: | 19 December 2018 | |
CASE MAY BE CITED AS: | DPP v Hoskins | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2241 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sexual Offence
Catchwords: Aggravated burglary – Rape
Cases cited: DPP v Tuite (Ruling No. 3) [2017] VSC 442
Sentence: TES: 7 years’ imprisonment with a minimum of 5 years before eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Hammill for the plea Ms E. Margaronis for the sentence | OPP |
| For the Accused | Ms R. Avis for the plea Ms J. Clothier for sentence | Doogue O’Brien and George |
HER HONOUR:
1 Ricky Hoskins, you have pleaded guilty to a charge of aggravated burglary, and a charge of rape, both offences with a maximum sentence of 25 years' imprisonment; and to two charges of theft, which has a maximum sentence of 10 years' imprisonment.
2 I sentence you on the basis of the prosecution opening[1], an agreed summary which was read out in court.
[1] Exhibit A
3 The offences occurred in 2014. You were then aged 29 and living off and on with your partner and the four daughters you then had together. At the time of the offending, you were actually living with your brother in Thornbury.
4 At about 4 am on 6 April 2014, you entered a property in Northcote through an unlocked rear gate. You went into a garden shed and a bungalow but stole nothing. You then broke the simple lock on the rear door of the house and entered. Given the time of the morning, you must have realised that someone would be in the house or you knew that someone was there. A person was in fact asleep in a bedroom. This entry into the house where someone was present, with you knowing someone was there or thinking someone might be there, is the subject of charge 1 – aggravated burglary.
5 A 26 year old woman who I will call Ms Redding[2], was alone in the home she shared with others, asleep in her bedroom at the front of the house. While she remained asleep you went through the house, stealing a computer and hard drive belonging to another person who lived there (Charge 4 – theft) and stealing Ms Redding's purse with cash and cards from her handbag on the floor of her bedroom (Charge 3 – theft).
[2] A pseudonym; in order to preserve her anonymity as required by section 4 Judicial Proceedings Reports Act
6 At some stage you got a large knife from the kitchen and put it under a table in the hall just outside Ms Redding's bedroom. You then went into her bedroom, climbed on the bed, pulled the covers off Ms Redding and pulled her clothing down to her ankles. Ms Redding woke up to find you raping her by putting your tongue in her vagina (Charge 2 – rape). She demanded that you stop, asked what was going on and who you were. She pushed you away from her body and continued asking what you were doing there and how you got in. You apparently looked stunned and said something to the effect that she had invited you in. She told you to leave.
7 Despite being told this, you stayed on the bed and Ms Redding had to wriggle away from you to pull up her clothing. She left the room and only then did you get off the bed, and leave, by walking back through the house, the yard and back gate the same way you had come in. Ms Redding locked the back door again, and on returning to the hall she saw the knife. Keeping her wits about her in frightening circumstances, she took a photo of the knife where she found it, using her phone. She then called 000 and reported what had happened to her. Later that day she was medically examined and swabs and DNA samples were taken.
8 You were later identified as the person who had raped her through analysis of the DNA found on her body. You were on the DNA database as a result of your criminal history. You were arrested on 4 December 2014 and remanded in custody.
9 As appears from the court file[3], the committal took place in April 2015. After that, you appeared at a number of directions hearings in this court, where counsel then appearing for you told the court that there would be a challenge to the analysis of the DNA based on a new methodology that was used in your case. It was agreed by the prosecution and defence that your case should not be heard before a case proceeding in the Supreme Court dealing with such a challenge was finalised, and so your trial was adjourned. That Supreme Court case took some time to be finalised[4]. In the meantime, the Director of Public Prosecutions filed a Notice of Discontinuance in your case on 17 February 2016, and you were released from custody, where you had been held on remand since your arrest, two earlier bail applications having been unsuccessful.
[3] CR-15-00712
[4]DPP v Tuite (Ruling No. 3) [2017] VSC 442 sets out the chronology of the case.
10 Seven months after the case was discontinued, the police officer in charge of investigating your case previously, was monitoring prison telephone calls for an unrelated investigation and thought to listen to the calls you made immediately after you were charged and remanded. He discovered that when you spoke to your partner about the allegations, on 8 and 18 December, days after your arrest, you spoke about the woman “you did the aggravate burg on” and as to the charge of rape, you said that, "it was an aggravate burg and the fuckin' chick woke up and I took off out the fuckin' back door." You denied that there was any DNA and asserted that the police had picked you up from a description given by the woman. As you spoke of a woman waking up during an aggravated burglary you were committing and spoke of you then leaving through the back door, this was clearly a reference to the offence of aggravated burglary for which you had been arrested.
11
Another 11 months passed and on the basis of the evidence from the telephone calls at least, in August 2017, the Director filed a direct indictment to reinstate the discontinued prosecution. A trial was listed for September 2018. On
23 July 2018, you were arraigned and pleaded guilty to all the charges. You were then in custody on other matters and not remanded again on these charges until the day of your plea, 22 November.
12 Two of your charges - aggravated burglary and rape - have the highest maximum sentence available, other than a life sentence. It is clear that these are very serious offences. Yours are grave examples of these offences for the following reasons:
· You have a long criminal history of committing aggravated burglaries, this being your ninth conviction for this offence;
· The sexual offence took place in the victim’s bedroom which you had entered by committing the aggravated burglary into the house;
· Ms Redding was asleep in her locked home where she was entitled to feel, and be, safe;
· You sexually attacked Ms Redding when she was asleep;
· You did not stop immediately on her becoming awake and aware of what happening, and remained on the bed after she pushed you away and moved away from you;
· The impact on Ms Redding is significant; and
· You obtained a knife and put it near her bedroom – although you did not use it in any way, seeing it there after you left must have been terrifying for Ms Redding in thinking of what might have happened.
13 I received an impact statement from Ms Redding[5]. Not surprisingly, she said the first major impact was to her sense of safety. As she said, "experiencing such a shocking thing in this safe space, shattered every sense of safety in my life. If this could happen here, then where am I safe?" This fear and anxiety extended into every aspect of her life. She could not relax or rest; on top of the mental health issues she already had, feeling this way made her want to kill herself. Having recently arrived in Melbourne from another country, she had no family support and found the road to recovery was marked with extra discomfort, loneliness and fear. She wondered how she would have been had the assault not happened, with all the time, energy and money the assault robbed from her. Then, she said, she felt the assault all over again with the case being discontinued. That of course, was not attributable to you.
[5] Exhibit B
14 Remarkably, in her despair, she was able to consider your position, imagining that the offender had many difficulties and pain in his life, that offenders are often themselves victims, and recognising that if this is what you were doing, you were in for a lot more trouble in your life. As it happens she was quite accurate in all of that. Also remarkably, she ended her statement on a positive note. She said while she was hugely impacted and it hurt her desperately with her life frozen and in a looping state of rewind, she did learn and grow massively. It seems her resilience reached sky high levels, her fierce inner dignity has grown and she has reached new levels of understanding, strength and power. She says she will be glad to be done with it and put it firmly behind her. I encourage her to do just that from today and with this sentencing date, finally closing this aspect of her life. I wish her well in the future.
15 Your counsel told me on the plea, that after hearing her statement in preparation for your plea hearing, your response was that you hoped that your victim did not think that all men or all Aboriginal men or all Australian men are like this because of you said, "one bad egg." You considered writing a letter of apology to her, to be provided through the prosecution. You told a psychologist[6] that you felt sick and stupid about the rape and when asked how the victim might have been feeling, you said, "probably terrified for the rest of her life." I accept all of those remarks as a sign of your remorse for your attack on her, and reflecting some insight by you. I do, however, take very much into account the impact on her in deciding the appropriate sentence in this case.
[6] Exhibit 2
16 I turn now to the other matters that I must take into account. The first matter is your plea of guilty. You are entitled to have that taken into account in your favour and I do so. It was not an early plea in that it was only two months' before the trial date in September 2018, and nearly 12 months after the direct indictment was filed. However, even if not an early plea, your plea has saved the community the time and cost of a trial and Ms Redding has been spared the ordeal of giving evidence, which is always a significant factor in cases of sexual assault and particularly so in this case, when there has been a delay and a discontinuance, causing added stress to the complainant.
17 I also take into account that the admissions you made in your phone calls from prison, could be said to only relate to the aggravated burglary, and not to the offence of rape. I note the case against you was strong for all the charges, with the acceptance of the previously challenged DNA methodology. However, I accept that pleading guilty to all four charges on the indictment, shows an acceptance of responsibility by you for all the offending, a willingness to facilitate the course of justice, and is a reflection of your remorse for what you did to Ms Redding.
18 The next matter I take into account is the delay in this matter coming to finalisation. I set out the chronology earlier. The prosecution concede that the delay was not attributable to you. I understand that you were advised by your lawyers to pursue the path of challenging the DNA evidence, and the prosecution filed the notice of discontinuance on the basis of a potential weakness in the DNA evidence before the Supreme Court case dealing with that new methodology was finalised. But that may have been somewhat premature, as that methodology is now accepted in these courts and indeed the DNA is still relied on in your case, with Notices of Additional Evidence filed in April and June of 2018 to this effect. As I noted it was in July when you pleaded guilty.
19 In all the circumstances, I do accept that the evidence from the prison phone calls that has brought this case back on was evidence the police could have obtained within weeks of your arrest in December 2014 and there is no reason put forward as to why those recordings were not listened to earlier, and I accept that when the case was discontinued in February 2016, you would have thought the case was over.
20 Further, I take into account what has happened in your life since you committed the offences. I accept that in the time that has passed, you have changed and are no longer the man who committed these serious crimes, and that has to be taken into account in sentencing you. I will come back to that.
21 Next, I take into account your personal circumstances. You are an Aboriginal man, now aged 33 years. You were born and lived in New South Wales until 9 years of age when you moved to Victoria. You are the only child of your parents, but you have never met your father, although you know who he is. You have five half siblings.
22 You had a difficult childhood and upbringing. Your grandmother was murdered before you were born, when your mother was young. Your mother then gave birth to you as a young woman. Your mother became, and is, a chronic alcoholic, mostly unable to look after her children. You have effectively no relationship with her now.
23 After the family's move to Victoria, the family moved constantly back and forth between Victoria and New South Wales. Your mother would look after you for a while, but then just leave, and you and your siblings had to move back to New South Wales for relatives to look after you. No sooner would you be settled into school than your mother would re-appear and take you back to Victoria. As a result, your schooling, at both primary and secondary level, was very disrupted. Because of this your only employment has been in two labouring jobs and otherwise you have been on the Newstart Allowance.
24 Your mother's alcoholism led to her being violent to you, and you felt as the oldest child, you had to protect your siblings. The violence could occur daily. Your various stepfathers contributed to the violence in the household. Your mother's alcoholism also meant that there often was no food, and your criminal record apparently began when you were aged 12, in the Children's Court, committing a burglary to get money for food for the children. You should never have been placed in that position.
25 Subjected to violence and alcoholism, you yourself began using substances at the age of 13, beginning with cannabis. You began drinking alcohol at 14, and became a heavy drinker at about 17. Between 18 and 21 you say you were drinking a slab of beer and a bottle of vodka a day. You stopped drinking alcohol at 23, when you started using heroin and methamphetamine (ice), in 2008. Both quickly became a daily habit, until you stopped ice use possibly in 2011, and stopped heroin in 2014. You have been on methadone for some years and were still on it when you went into custody on 22 November after your plea.
26 Your adult criminal history reflects crimes committed to fund your drug habit, and also drink driving offences. From appearances between 2005 and 2013, you have about 54 dishonesty offences in addition to the eight aggravated burglaries I previously referred to, and ten burglaries.
27 You met your partner when you both attended the KODE school in Glenroy. She is from a large, very supportive Aboriginal family. You left school in Year 9 at the age of 14 when your partner, aged 15, became pregnant with your first child and your mother took you away to New South Wales. You did not return until your daughter was about one.
28 It was on your return that you began to drink heavily. Your second daughter was born in 2002, your third in 2004 and your fourth in 2008. During that period, as I mentioned before, you were drinking and using drugs. Perhaps not surprisingly, you and your partner split up in 2011, and your drug use escalated.
29 Also in 2008, you were stabbed by your partner and lost a lot of blood. All of your children were temporarily placed into the care of the Department of Health and Human Services. Your partner was also a drug user but she was able to rehabilitate herself and all the children were returned to her. Fortunately, the cycle of deprivation, abuse and neglect from your mother's generation and your generation appears to have stopped in your children's generation, as apparently your daughters now aged 10 to 18 years are all in education, some or all have received scholarships, they engage in volunteering and are active in sports.
30 In 2014, you were separated from your partner and children, using drugs heavily and committing offences. The offences committed on 6 April 2014 were part of this cycle. You have never committed a sexual offence before or since and you have no explanation as to why you committed the rape. I find that it was opportunistic and not planned, but it is still a serious example for the reasons I gave earlier.
31 You were assessed by a psychologist Ms Lechner[7] as being a moderate risk of future sexual offending. She also considered you have symptoms of Complex Developmental Trauma, and on your self-report, she found you scored in the extreme and severe ranges for depression and anxiety respectively. She noted that over the last 12 years you had been in prison every year. Although I note these were for short terms, Ms Lechner described you as caught in a cycle of recidivism that will lead to institutionalisation, if a circuit breaker is not instituted. Unfortunately, you will be spending another more significant period in custody as a result of the serious 2014 offences.
[7] Exhibit 2
32 However I do take into account, apart from the other matters I have referred to, that the month before your arrest in December 2014, you and your partner reconciled. You have a son, now aged three, who was born while you were in custody. You have been on the methadone program since 2014 and the only substance you have been using is cannabis. That is why your counsel submitted, you are no longer the same man who committed the offences in 2014.
33 You were also assessed by a psychologist Mr Jackson[8], who found you are of low average intelligence, but have the capacity to learn drug relapse prevention strategies. There is no evidence of any disorder of impulse control or mental illness, or acquired brain injury, or history of psychiatric or psychological problems.
[8] Exhibit 3
34 Both Ms Lechner and Mr Jackson considered your drug use to be the most significant risk factor for any reoffending, and I agree.
35 I take into account your dysfunctional childhood with instability, isolation and no moral boundaries and I accept that played a role in your substance abuse and thus your criminal history, and in these offences. However, while I take it into account, I do not find that your moral culpability is reduced. It is still quite high. You had committed many previous aggravated burglaries, all with people present in their homes. In this instance, you chose to sexually attack a sleeping woman. Your reaction when she woke up and confronted you is consistent with you being drug affected, but that provides only a partial explanation as to why in this aggravated burglary you committed a sexual offence. It is certainly no excuse.
36 On balance, I find that your chances of rehabilitation are generally guarded as to dishonesty offending, but if you undertake treatment for your drug use and if you also undertake treatment to understand why you committed the sexual offence, I find your prospects of rehabilitation may be reasonable for both dishonesty and sexual offending. Your counsel submitted that I should impose a long parole period to enhance your process of rehabilitation, and of breaking the cycle and I will do so. I note in your favour that in your previous times in custody, you have worked as a billet and have done courses including reading, and recorded bedtime stories for your children to listen to in your absence.
37 As well as the matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence which is of considerable importance in this case. That means that by my sentence I must try to prevent other people from committing the offences you committed. Because of your criminal history, specific deterrence is also relevant, by which my sentence must also try to deter you from reoffending.
38 Yes, stand up please, Mr Hoskins.
39 You are convicted and sentenced as follows:
40 Charge 1 - aggravated burglary - 5 years 6 months' imprisonment;
41 Charge 2 – rape - 6 years' imprisonment;
42 Charge 3 – theft - 6 months' imprisonment;
43 Charge 4 – theft - 6 months' imprisonment.
44 The sentence on Charge 2 is the base sentence. I direct that 12 months of the sentence imposed on charge 1, be served cumulatively on the sentence imposed on charge 2. All other charges are concurrent.
45 That makes a total effective sentence of 7 years' imprisonment. I direct that you serve a minimum of 5 years before becoming eligible for parole.
46 I note that you have served 467 days not including today in pre-sentence detention and these are to be deducted administratively from your sentence.
47 If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed is a total of 10 years' imprisonment with a minimum of eight years.
49. HER HONOUR: Yes, there are no orders required?
50. MS MARGARONIS: No other orders, Your Honour.
51. HER HONOUR: Thank you, and will you be going down to see Mr Hoskins in custody at this point?
52. MS CLOTHIER: Yes, I can.
53. HER HONOUR: Thank you. Yes Mr Hoskins maybe removed.
54. HER HONOUR: We’ll now adjourn until 2 o’clock.
ADJOURNED TO A DATE TO BE FIXED
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