Director of Public Prosecutions v Howard
[2017] VCC 1009
•26 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00871
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANING HOWARD |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2017 | |
DATE OF SENTENCE: | 26 July 2017 | |
CASE MAY BE CITED AS: | DPP v Howard | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1009 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea; Armed Robbery.
Legislation Cited:
Cases Cited:R v Verdins (2007) 16 VR 269; R v Guden (2010) 28 VR 288
Sentence:3 years’ imprisonment with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Hammil | Office of Public Prosecutions |
| For the Accused | Ms C. Boston | Victoria Legal Aid |
HER HONOUR:
1 Maning Howard, on 22 March 2017, you were found guilty by a jury of one count of armed robbery. The maximum penalty for armed robbery is 25 years’ imprisonment.
2
The circumstances of your offending are set out in the prosecution opening at trial which was tendered, and I sentence you on the basis of the facts contained in that document. I note that your co-offenders, Kevin Howard and
Brian Haynes, pleaded guilty to armed robbery before His Honour
Judge Chettle on 4 December 2015. Kevin Howard was sentence to 18 months’ imprisonment with a non-parole period of 12 months. Brian Haynes was sentenced to three years and six months’ imprisonment, with a non-parole period of two years and three months. As part of his plea, Kevin Howard undertook to give evidence in your trial, and he received a significant sentencing discount because of that undertaking. He confirmed his evidence at the committal, and at your trial.
3 Kevin Howard is your cousin. He worked at Tasman Meats, the site of the armed robbery, and was the “inside man” in the commission of the robbery. He had been living with you and your partner for some weeks prior to the armed robbery. Brian Haynes was a friend of yours and of Kevin’s.
4 At around 5 pm on Sunday 24 May 2015, Tasman Meats had just closed for the day. Employees and victims Sandra Lisiecki and Denise Humphrey left the building with Kevin Howard. They locked the rear door and stood outside talking and having a cigarette. The business takings were secured inside the store. Whilst they were standing outside, you and Brian Haynes, wearing balaclavas and gloves and approached them. Brian Haynes was armed with a baseball bat, and you were armed with a metal martial arts weapon. You produced your weapons and made demands for money. You told Lisiecki to open the rear door. You both ordered the two women back into the store. You told Ms Lisiecki to open the safe and you emptied the contents of the safe, approximately $40,000, into a black bag. One of you struck Kevin Howard over the head for show. You each demanded the victims’ phones. Haynes ordered the women back into the safe room, ripped out the telephone line from the wall, told them to stay in the office for 20 minutes, threatened to hurt them if they left, then left the business with you via the rear door. Police were called. Kevin Howard spoke to police and was initially treated as a victim.
5 In the two days after the armed robbery, you paid $4,200 cash for a second-hand car. On 9 June 2015, the car used in the commission of the armed robbery was located in your driveway. You gave a no comment record of interview. When his role as the inside man was established, Kevin Howard made full admissions to the police and made a statement concerning the planning undertaken by the three of you, the disguises you would wear, and your discussions after the armed robbery about how the money was to be distributed.
6
The prosecution tendered Victim Impact Statements from both victims. Consistent with her request, Sandra Lisiecki’s statement was read out in court. She was terrified during the incident, found it difficult to return to work, and has needed psychiatric treatment for her distress, hypervigilance and anxiety. She was good friends with Denise Humphrey, who has been unable to return to work since the incident. She was particularly distressed to discover that
Kevin Howard, a close colleague, was involved in the armed robbery. She has been permanently changed by the armed robbery and has lost her ability to trust, as well as losing a great friend.
7
Denise Humphries stated that prior to the armed robbery, she was a strong, independent and confident woman. Since the armed robbery, during which she feared that she would die, she has lived in fear, and become anxious and withdrawn. She has been unable to visit her brother who lives close to
Tasman Meats, and cannot go shopping alone. She was able to find alternative employment, but only in Ballarat, which is a 60 kilometre trip each way.
8
You were in custody from the date of your arrest on 9 June 2015, until you were bailed on 12 August 2015. You have been then in custody since
10 February 2017 and you are entitled to a declaration of 231 days pre-sentence detention not including today.
9 Your personal circumstances were set out in a number of documents tendered on your behalf as Exhibit A, and I have considered them all.
10 Your mother was 16 when you were born in New Zealand and you were raised by her parents till the age of 14. Your grandparents were heavy drinkers with 12 children, the youngest of whom was only 4 years older than you. You were in and out of hospital between the ages of 8 and 15 with rheumatic fever. You developed a marijuana habit at the age of 13, left school at 14 and moved to Christchurch to live with an uncle and aunt. You started using other drugs, then formed a relationship with your first partner. You moved to Auckland with her, and your son was born when you were 17. You worked for about two years as a storeman.
11 At age 19, in 1994, you underwent the first of three open heart surgeries to replace your aortic valve. You had a second child in 1995, but in 1999 your relationship with your partner broke down. You had a second round of heart surgery in March 2001. In 2004, you formed a relationship with Sharne, the mother of your two youngest children, now aged 9 and 6. You were hospitalised with rheumatic fever in 2006 and twice in 2008, and were diagnosed with obstructive sleep apnoea in August 2009.
12 You moved to Australia in 2010 and worked for some months, but could not afford childcare, and so you worked on and off for the next five years. You worked in a cold storage facility between 2012 and 2014, and in a furniture store between late 2014 and mid-2015. During those years, you suffered further episodes of severe aortic stenosis and severe obstructive sleep apnoea, and were diagnosed with depression and hypertension. You required a CPAP machine for your sleep apnoea. Your grandmother died in 2012, and you had a third aortic root replacement in May 2014. Your mother died in October of that year.
13 Your relationship with Sharne broke down in late 2014 and you separated in February 2015. At the time of the armed robbery, you were using half to one gram of methylamphetamine per week.
14
You were arrested in relation to this matter on 9 June 2015, and were at the Metropolitan Remand Centre at the time of the riots there on 30 June. You did not participate in the riots, but suffered a minor injury as well as an anxiety attack. From then, until you were bailed on 12 August 2015, you were on a
23-hour lockdown, at times sharing a cell intended for one person with two other inmates.
15 As part of your CISP bail, you attended fifteen appointments with a psychologist for treatment of your Adjustment Disorder, with Mixed Depression and Anxiety, ending in April 2016. The CISP Final Progress Report, dated 16 December 2015, concluded that you “exhibited excellent and positive motivation throughout the CISP period….attended appointments and been highly active and engaged in counselling/treatment and case reviews with the writer” and that you had “taken advantage of this rehabilitative opportunity to make significant lifestyle changes around his substance abuse and his underlying issues”.[1]
[1] Exhibit A, Tab 10
16 You suffered a mild stroke in April 2016, and an episode of chest pain later that month.
17 You have no prior convictions in Australia, but a number of old convictions in New Zealand, including convictions for breach of community work (2006 and 2009), possession of drug paraphernalia (2006), burglary (property under $500 by night, 2004), failure to report (2000 and 1999), common assault (2000) and shoplifting (1994 and 1995). These prior convictions resulted in fines or community based dispositions. You have never been sentenced to a term of imprisonment.
18 You committed some subsequent offences, (driving, theft, possession offences in September 2016, and breach of IVO and bail conditions in early 2017), which resulted in your bail being revoked on 10 February 2017. The breach of IVO consisted of your taking your son with you when reporting to police, without the necessary written permission to do so. The subsequent offending occurred when you were effectively homeless and stealing to survive, as you were unable to obtain Centrelink benefits. You have been abstinent since that time, and held positions of head billet and peer educator at Melbourne Assessment Prison, before being moved on multiple occasions between Fulham, MRC and Port Phillip Prison. You suffered pneumonia in May 2017. You are currently working in the kitchen at Port Phillip Prison and have undertaken courses in business management and hospitality. You provided clean urine samples in April and June 2017.
19 I turn to the submissions made in mitigation on your behalf, which may be briefly summarised.
20 First, it was submitted, the court cannot be satisfied beyond reasonable doubt that the armed robbery was your idea and therefore, you cannot be sentenced on this basis. Your counsel noted that Brian Haynes claimed that the armed robbery was Kevin Howard’s idea, and that His Honour Judge Chettle made no finding as to whose idea it was.
21 Second, it was submitted, the conditions of your incarceration at the MRC in the aftermath of the riot were particularly onerous and added to the burden of your imprisonment.
22 Third, it was submitted, you are an extremely sick man. This is a highly significant factor because prison will be a greater burden upon you, due to your poor health, and because there is a serious risk of imprisonment having a materially adverse effect on your health. In particular, you suffer two major, life-threatening conditions. The first is your heart condition, for which you require warfarin medication daily and close regular monitoring to check your warfarin blood levels. Under-medication can result in thrombosis or stroke, and over-medication can lead to significant bleeding. The second is your severe obstructive sleep apnoea, which results in quite severe daytime somnolence, and which requires treatment with a CPAP machine. You had and used a CPAP machine until it broke down in 2012, and you were unable to afford to repair it. Since not having a CPAP machine, your symptoms have considerably worsened. Your general practitioner reported in mid-2014 that you require a CPAP machine, but noted advice from St Vincent's Hospital Sleep Clinic to the effect that such machines are not readily available through the public system.[2] Your other health problems include depression, for which you take anti-depressant medication; emphysema and hypertension, for which you also take daily medication.
[2] Exhibit A, Tab 14
23 There is evidence that you have been moved a number of times between gaols, which has resulted in missed medical appointments and warfarin level checks. Your treating cardiologist, Dr Andrew Wilson, has recently reported that close monitoring of your warfarin levels through regular blood tests is essential, along with close monitoring for the development of infection of the heart valve. He emphasised that inadequate monitoring could have fatal consequences.
24 I note your counsel’s submission that due to error on the part of prison authorities, one of the medications you require for your emphysema, Seretide, was not prescribed to you as late as 31 March 2017, even though it was listed in a letter from your doctor dated 9 February 2017, as one of your prescribed medications. In addition, on one occasion in June 2015, you were left alone for four hours before an ambulance came to treat you. You suffer anxiety in relation to securing your daily warfarin and regular blood monitoring while in custody.
25
In relation to your mental health, your counsel relied on the reports of psychologist Jacqueline Lakkis, who treated you between late August 2015 and late April 2016, and a forensic psychological report by Carla Ferrari, dated
5 July 2017. Ms Lakkis diagnosed you as suffering from Adjustment Disorder with Mixed Depression and Anxiety. She provided 15 sessions of counselling and noted that you engaged well with treatment, reported an improvement in your psychological wellbeing during that period, when you were able to complete your CISP program and complete a vocational course, and that you had ceased associating with your past acquaintances who may have been a negative influence on you.
26 Ms Ferrari took a history from you of a lifetime of untreated depression and anxiety as a result of your upbringing, and of your benefitting from treatment with Ms Lakkis but an acute exacerbation of your psychological symptoms in prison including regular suicidal ideation. She noted that you had been receiving Avanza for the past month, but said you had yet to benefit from it. You had been unable to access a psychologist in prison or to complete any group therapy programs. You continued to deny your involvement in the current offending. Once sentenced, you hoped to access appropriate mental health professional support. You expressed great concern about the possibility of deportation. You expressed insight into the psychosocial stressors that were present in your life around the time of your offending.
27 As her report was required urgently, Ms Ferrari notes that you did not complete any psychometric testing related to your mood or substance use. However, on the basis of your clinical presentation and available information, she “hypothesised” a number of clinical disorders: including major depressive disorder, generalized anxiety disorder, cannabis dependence, and severe substance abuse (in partial remission). She noted that your mental state deteriorated after your mother’s death in 2014, that you relapsed into substance abuse, that your relationship with your partner deteriorated, and that you offended.
28 She concluded that you require targeted treatment to address your psychological issues. She considered that you have a number of protective factors, including: your remorse for your substance abuse and subsequent abstinence, your supportive family, your engagement with psychological counselling, your completion of vocational courses while on CISP bail, and your willingness to engage in drug counselling to prevent relapse. She opined that your mental health could be severely impacted by a further custodial sentence.
29 Your counsel submitted in the light of the psychological reports that Verdins[3] principles 1,3,5 and 6 apply in respect of your psychological condition. In respect of Verdins principle 1, it was submitted that your psychological distress after the sudden death of your mother, and drug taking led to impulsive behaviour and reduce your moral culpability. In respect of Verdins principle 3, it was submitted that general deterrence should be moderated having regard to the severity of your current condition.
[3]R v Verdins (2007) 16 VR 269
30 The fourth matter relied upon by your counsel is that you have been notified that you will be deported to New Zealand upon your release from prison. This is relevant in two ways: it increases the burden of your sentence and is also a ‘serious punishing consequence’ of your offending.[4]
[4]R v Guden (2010) 28 VR 288
31 The fifth matter relied upon, is the impact on you of the hardship that is caused to your family members by your imprisonment. I note that you have in the past been heavily involved in caring for your young children, including at times being their primary carer, and that you are suffering anguish at your inability to continue this important role.
32 Finally, your counsel relied on the psychological reports and submitted that you have excellent prospects for rehabilitation for a number of reasons. This is your first time in prison. You have a solid work history during periods where you were not receiving medical treatment or caring for your children. You did not commit any offences in the decade prior to the armed robbery. You have remained abstinent from drugs while in prison. You have been solidly employed full-time in prison and have undertaken a number of courses. You have family support from your aunt and uncle.
33 On the issue of parity, your counsel conceded that you and your co-offenders were equally involved in the offending, but pointed to a number of differences between you. Kevin Howard was the “inside man” and breached the trust of his work colleagues. He pleaded guilty and assisted authorities. He had never served a term of imprisonment. He suffered no ill-health, and had no young children, but also faced deportation. Brian Haynes pleaded guilty, behaved more aggressively during the offending, suffers from depression and anxiety, but had previously served a term of imprisonment.
34 Your counsel also indicated that she placed no reliance on remorse in your case.
35 Counsel for the prosecution submitted that general deterrence is the paramount sentencing consideration. He opposed any reliance on Verdins principle 1, on the basis that Ms Ferrari’s report did not permit a conclusion to be drawn that your psychological condition was causally connected to your offending. He opposed any reliance on Verdins principle 3, on the basis that the armed robbery was carefully planned, occurred six months after the death of your mother, and should not be viewed as an impulsive act of a person wrestling with grief, over the loss of his mother. He agreed that you should be treated as equally guilty with your co-offenders; that your prior convictions were of limited use; that account can be taken of the fact that you face deportation, and that it is hard for you to receive the optimum treatment for all your medical conditions in prison. He submitted that the angst that you suffer at not seeing your family is common to all prisoners.
36 I am not satisfied on the material before me that any psychological distress you suffered as a result of your mother’s death six months prior to the armed robbery reduces your moral culpability for your offending, or warrants a moderation of general deterrence. However, I accept that this evidence provides a context and possible explanation for your offending, in that you had previously not offended in Australia. I accept all the remaining matters relied upon in mitigation on your behalf. I also accept that you are to be sentenced as equally responsible with your co-offenders for the armed robbery.
37 In particular, I find that your current medical conditions, especially your serious heart condition and severe obstructive sleep apnoea, are factors which make prison much more burdensome for you than for the ordinary inmate. I am also satisfied, that given the seriousness of these conditions, and the close monitoring that is required, along with the absence, to date, of a CPAP machine to alleviate your severe obstructive sleep apnoea, that there is a serious risk that imprisonment will have a gravely adverse effect on your health. I note the recommendation of Ms Ferrari that you require targeted psychological treatment for your anxiety and depression and note that you have not received such treatment to date.
38 I consider that your ill-health, both physical and psychological, warrants significant moderation of both the head sentence and the non-parole period.
39 Nevertheless, your offending is very serious, and general deterrence must remain the paramount sentencing consideration, that is, the consequences of this type of offending must be made clear to those who may commit a similar offence. Your offence was premeditated and well-planned. Two female employees were terrorised and traumatised by your conduct and a significant amount of money was stolen.
40 Would you please stand. Maning Howard, on the one charge of armed robbery, you are sentenced to be imprisoned for three years. I order that you serve 15 months of that sentence before being eligible for parole. I declare that 231 days of the sentence I have just imposed has already been served by way of pre-sentence detention and I direct that this be entered into the court records and deducted administratively.
41 The prosecution has sought Disposal Orders relating to a receipt and vehicle transfer forms, and Forfeiture Orders relating to a VX Commodore Station Wagon and key to that station wagon. I understand that these are by consent and I will make those orders.
42 I also propose to make the following comments in relation to Custody Management Issues. Mr Howard is to be assessed as soon as possible for the provision of a CPAP machine, and immediately for psychiatric treatment. He is to be closely monitored in relation to his heart condition, obstructive sleep apnoea and psychological state. Any other matters?
43 MS DONOHOE: No, Your Honour.
44 MR NANKIN: No, Your Honour.
45 HER HONOUR: Thank you. I just want to confirm, the summary charges are withdrawn?
46 MR NANKIN: They are withdrawn, but I can formally file the notice withdrawing those charges.
47 HER HONOUR: Thank you.
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