Director of Public Prosecutions v Howie
[2022] VCC 2052
•22 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02492
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM HOWIE |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 October 2022 |
DATE OF SENTENCE: | 22 November 2022 |
CASE MAY BE CITED AS: | DPP v Howie |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2052 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed Robbery; Attempted Armed Robbery; Possession of a Drug of Dependence
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2022] VSCA 169; R v Verdins & Ors (2007) 16 VR 269.
Sentence:Fine of $150; 13 days Imprisonment; 18-month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Stokes | Solicitor for the Office of Public Prosecutions |
For the Accused | Ms J. Poole | Tony Hannebery Lawyers |
HIS HONOUR:
Introduction
1William Howie, on 12 August 2022, you appeared before me at a determination hearing in the Drug and Alcohol Treatment Court with regards to one charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment; one charge of attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment; and one charge of possession of a drug of dependence, which in the circumstances of your case carries a maximum penalty of five penalty units.
2At the commencement of the hearing, you were arraigned and pleaded guilty to these charges. You also admitted your criminal history.
Circumstances of the offending
3The circumstances of your offending were set out in the summary of prosecution opening, Exhibit 1 at your determination hearing.
4At the time of your first offence, the armed robbery of the Australia Post Office in Malvern East, you were unemployed and living with your parents in Malvern East and you were reliant on your parents and social welfare payments for financial support. Although you did not own a vehicle, you frequently drove the family car, a black 2008 Peugeot 407 wagon with registration ending 644 (hereafter referred to as 'the black Peugeot'). On 11 May 2021, CCTV cameras captured you driving the black Peugeot past various locations in Malvern East before you stopped on Brunel Street and waited in your car for about 5 minutes. At about 12.18 pm, you got out of the car. You were then wearing a dark coloured beanie, a dark blue coloured hooded jumper with white drawstrings and the hood pulled back over your head. You wore a black trench coat over the hoodie. You also wore black and red coloured running shoes as well as black leather gloves. Noting that your offending occurred in the middle of the COVID‑19 pandemic, you wore a surgical mask partially covering your face. Also in your possession was a yellow Rebel Sport enviro backpack which contained a large machete.
5At 12.25 pm, CCTV cameras captured you walking towards the post office. You arrived at a bus stop on Darling Road and sat inside the bus stop shelter for about 8 minutes, keeping the post office, which was only metres away, under your surveillance. At 12.38 pm, you got up and walked towards the post office, loitering around the strip of shops near the post office for about 5 minutes before walking towards the front door of the post office at 12.46 pm. Noticing two customers inside, you continued to walk a short distance away until you observed the customers leave the post office, at which point you entered the post office store via the front door.
6The Malvern East Post Office was owned and operated by your victim, Wei Tung, and his sister, Pei. When you entered the store, Wei was standing behind the counter while his sister was on her lunch break at the back of the shop. After pretending to check the mailboxes in the front foyer area, you walked towards the counter and pulled out the large machete from the yellow Rebel Sport bag, and you walked straight towards Wei, pointing the machete at him, and said, 'I know there's money under the drawer. Put all the money in the bag'. Fearful for his safety, Wei complied with your demand and began putting money from the tills into the bag as you said, 'Sixty seconds, money in the bag'. You also demanded that Wei hand over cheque books that you believed were sitting on the counter, which were in fact Australia Post money order pads. Wei complied with your demand and placed these items in the yellow bag. While this was happening in the counter area, Pei heard the incident taking place, which caused her to stay still and freeze; however, she continued to listen to your interactions with her brother. In total, Wei placed $1,827 and two money order pads into the yellow bag. You took the backpack and said, 'Now there's 30 seconds, don't do anything'. You then ran out of the post office. Your conduct in this regard forms the basis of Charge 1 on the indictment, armed robbery. After leaving the store, you ran to your car and drove home.
7Wei Tung in the meantime had called Triple 0 and reported the matter to police.
8Police investigations following this armed robbery revealed that you engaged in various banking activities in the days following the armed robbery, including the making of various deposits of cash into your Commonwealth Bank account.
9Police ultimately linked you to the offending through registration details of the black Peugeot, with only six of these vehicles being registered in Victoria, one of which was registered to your mother.
10On 11 June 2021, police executed a search warrant at your family home in East Malvern and arrested you with regard to the armed robbery. During the course of the police search, police located a small amount of cannabis in a chest of drawers in a bowl in your bedroom, hence your liability for Charge 3 on the indictment, possess cannabis.
11Following your arrest, you were taken to the Malvern police station where you were interviewed, providing a no comment interview. You were then released pending further inquiries.
12Twelve days after the armed robbery, you were involved in another offence, an attempted armed robbery at the Elwood Milk Bar. On Sunday 23 May 2021, you drove the black Peugeot to Elwood. At the time, you were wearing a black cap, black hoodie with hood pulled over the cap, black pants and a blue surgical mask while carrying a black shopping bag which contained a large meat cleaver. You had wrapped the top of the meat cleaver and a small part of the handle with grey-coloured electrical tape.
13At approximately 2.40 pm, you arrived in the vicinity of the milk bar, parked your car and got out of the car, and walked to the milk bar. You entered the milk bar and went directly behind the counter and began rummaging through the area, looking for valuables. You then turned your attention to a roller door where the owner of the milk bar, Ms Ming Ling, stored her stock of cigarettes. You pushed up the roller door. Ms Ling, who had been asleep in the back of the milk bar, was awoken by the noise of the roller door and attended the shop to investigate. She observed you behind the counter placing cigarette packets inside your black bag and confronted you, yelling, 'Get out'. At this point, you took the meat cleaver from the bag and pointed it at Ms Ling, yelling, 'Money, money'. Ms Ling was fearful for her life and ran out of the store while constantly yelling, 'Help, help'. As she was yelling for help, she was also holding onto the milk bar door to keep it shut and to keep you inside the shop. Three members of the public heard Ms Ling's cries for help and came to her assistance. One of those bystanders called Triple 0. While this was happening, you became panicked after being locked in the milk bar by Ms Ling and kicked the door from the inside, causing the glass panels to shatter. This caused Ms Ling to let go of the door and, together with the other bystanders, to move away from the door. You then pushed your way through the broken door and fell onto the ground before getting up and running away in a panic. You left empty-handed, leaving your black enviro bag containing five packets of cigarettes and the meat cleaver behind in the milk bar. Your conduct in this regard forms the basis of Charge 2 on the indictment, attempted armed robbery
14Police later analysed CCTV footage, and DNA and fingerprint analysis was conducted on the bag and meat cleaver left behind by you, together with the packets of cigarettes. You were implicated and ultimately attended the Melbourne West police station on 26 August 2021 by appointment with your solicitor where you were arrested and interviewed. During that interview, you admitted to committing the armed robbery at Malvern East on 11 May and the attempted armed robbery at the Elwood Milk Bar on 23 May 2021. You expressed remorse and guilt for your actions and stated that both offences had been weighing heavily on your mind.
15You were remanded in custody from this date, 26 August 2021, and remained in custody until you were bailed 13 days later on 7 September 2021.
Victim impact
16Whilst no victim impact statements were obtained in this matter, Ms Watson, who appeared on behalf of the prosecution at your determination hearing, read out portions of the victims' police statements at your determination hearing on 12 August 2022. Your victim in relation to the armed robbery, Wei Tung, indicated in his statement that he was in shock when the offending was taking place, and was fearful that people would get hurt. His sister indicated that she was scared for herself and her brother. In relation to the attempted armed robbery, a witness described your victim, Ms Ling, as being very stressed and shaken up, and the witness had to contact Triple 0 for Ms Ling, as Ms Ling indicated that she did not feel that she was able to. Another witness described one of the bystanders who came to Ms Ling's assistance as crying and looking very distressed as a result of the incident.
17As these portions of police statements indicate, your serious offending caused understandable fear, anxiety and distress not only to your victims but to others in the vicinity. In formulating an appropriate sentence in your case, I have taken into consideration, to the extent that I am able, the impact of your offending on your victims.
Criminal history
18As I have indicated, at your determination hearing on 12 August 2022 you admitted your criminal history. On 30 January 2018 at the Melbourne Magistrates' Court, you received a without-conviction adjourned undertaking with regard to charges which included shoplifting, recklessly causing injury, criminal damage and possess amphetamine. In relation to a separate charge of use a carriage service to menace, you were convicted and discharged. I was informed at your determination hearing that these charges related to your theft of headphones from a store and resulting physical altercation with the store owner when he tackled you. Your only other prior matter relates to a finding of guilt at the Moorabbin Magistrates' Court on 28 March 2019 for one charge of theft which resulted in a fine with conviction. Save for these matters, you fall to be sentenced as a relatively young man at the age of 28 with an absence of any further prior criminality.
Determination hearing considerations
19The criteria for the making of a Drug and Alcohol Treatment Order are set out in s18Z of the Sentencing Act 1991. For the purposes of your determination hearing, I received and considered the Drug and Alcohol Treatment Court Clinical Advisor Assessment Report of Mr Harry Howe dated 25 July 2022 and the Case Management Assessment Report of Ms Santi Griffin‑Achmad dated 25 July 2022, Exhibits 3 and 4 respectively. I also considered the matters contained in the outline of prosecution submissions on determination hearing and sentence dated 5 August 2022, the chronology and outline of defence submissions on determination hearing and sentence dated 11 August 2022, and the various reports and documents tendered on your behalf at the determination hearing, including a psychological assessment from Gina Cidoni dated 17 May 2022, a treating report from Dr Vanessa Keleher from the Bromham Clinic dated 13 May 2022, and various support letters.
20I am satisfied that you pleaded guilty to offences that are within the jurisdiction of the County Court and punishable on conviction by imprisonment, pursuant to s18Z(1)(a) of the Sentencing Act 1991. I am satisfied that your offending does not fall within the various exclusionary offences set out in s18Z, and I am satisfied that you are not otherwise subject to the various exclusionary orders also contained within that section. Pursuant to s18Z(1)(c)(i) and (ii), I am satisfied on the balance of probabilities that you are dependent on drugs and that your drug dependency contributed to the commission of your offences. Pursuant to s18Z(1)(d)(ii), I am satisfied that it otherwise would be appropriate to impose a sentence of imprisonment of no more than four years, given the primacy given to your rehabilitation and community protection through your rehabilitation contained in s18X(2), and in consideration of the various sentencing factors, principles and purposes contained in s5(1) and (2) of the Sentencing Act 1991 and the submissions made on your behalf.
21All of the matters to which I have referred were not controversial insofar as the prosecution position at the determination hearing. Essentially, the prosecution accepted that you were prima facie eligible for a Drug and Alcohol Treatment Order, and that presumably with regard to the residual discretion contained in s18Z(3) of the Sentencing Act 1991, accepted that you were suitable for a Drug and Alcohol Treatment Order. However, the prosecution submitted that a less restrictive order may be appropriate given the 'wraparound supports that are already in place'. Likewise, whilst your counsel submitted that you met all of the relevant criteria for the making of a Drug and Alcohol Treatment Order, a less restrictive option would be more appropriate, given the exceptional constellation of mitigatory factors in your case. I agree.
22The Drug and Alcohol Treatment Court has been operative now at the County Court for a little over 12 months. Pursuant to the relevant provision of the Sentencing Act 1991, the Drug and Alcohol Treatment Court has the ability to pass a new type of sentencing order in the County Court jurisdiction known as a Drug and Alcohol Treatment Order. Such an order combines specialised coordinated and tailored supervision and treatment to participants during the currency of the order, which is overseen by the Drug and Alcohol Treatment Court. A Drug and Alcohol Treatment Order is, by its nature, an intensive order, imposed essentially in lieu of imprisonment. It is by its very nature targeted towards drug-dependent offenders who would benefit from the intensive regime encapsulated by a Drug and Alcohol Treatment Order. There is regulated mandated drug testing, together with holistic interventions through specialist individuals and agencies, all under the auspices of the Drug and Alcohol Treatment Court. Offenders are required to appear regularly before the Court where their progress is closely monitored. The capacity of the Drug and Alcohol Treatment Court is not infinite. By necessity, there are limitations with regards to the numbers of participants and the capacity of the court to effectively dispense its functions under the Sentencing Act 1991. In my view, having carefully considered the circumstances of your particular case, I have come to the conclusion that a Drug and Alcohol Treatment Order would be too intensive and would essentially constitute overservicing, given the comprehensive wraparound services currently in place with regards to your ongoing rehabilitation.
23Accordingly, pursuant to s18Z(3) of the Sentencing Act 1991, I am not satisfied in all the circumstances that it is appropriate to make a Drug and Alcohol Treatment Order in your case, and I decline therefore to make such an order.
24Pursuant to s18ZB(1) of the Sentencing Act 1991, if an offender has pleaded guilty to an offence in respect of which the Drug Court could make a Drug and Alcohol Treatment Order, but it does not consider it appropriate to do so, I am able to sentence you in relation to the offending if you consent to the Drug Court doing so. As I have been informed that you consent to me sentencing you, I will now proceed to outline my reasons for sentence in this case.
Sentencing considerations
Nature and gravity of the offending
25Turning first to the nature and gravity of the offending, in all the circumstances, I agree with the prosecution that the objective gravity of your conduct with regard to both Charges 1 and 2 sits in the middle of the range of offence seriousness. You committed both offences against what can be described as 'soft targets' – shopkeepers operating a business alone in the middle of the day, often with minimal to no security. Your victims were entitled to feel safe at work. Given the objective gravity of the offences of armed robbery and attempted armed robbery, and the fact that you committed the armed robbery on soft targets, the sentencing purposes of denunciation and general deterrence are important in the sentencing synthesis.
26In relation to the armed robbery on 11 May 2021, whilst I agree that your offending could be described as fairly unsophisticated, you were wearing gloves and, as is clear from the prosecution opening, there was a degree to which you loitered in the vicinity before ultimately committing the offence. To that extent, your offending does not, in my view, appear to have been entirely spontaneous. However, I accept that you made limited attempts to disguise your identity, and the location of your offence was in the vicinity of the car which you had driven, which was registered to your parents. As indicated by the prosecution in written submissions, detection of the offending was almost inevitable.
27Your production of an edged weapon, in this case a large machete, which you pointed at your victim, constitutes menacing conduct which no doubt would have been extremely frightening to your victim. However, I accept that, other than pointing the machete, it was not further utilised in the commission of the armed robbery.
28Likewise, with regard to the attempted armed robbery on 23 May 2021, your production of the edged weapon, in this case a large meat cleaver, which you pointed at your victim yelling, 'Money, money', would no doubt have been extremely frightening to your victim. Otherwise, I accept that your conduct with regard to this offence was fairly rudimentary.
Your level of culpability and responsibility
29Turning now to your level of culpability and responsibility. Ordinarily, your level of moral culpability and responsibility for this offending would be considered high. In particular, that you would engage in the serious offending encapsulated by the attempted armed robbery on 23 May 2021, just 12 days after committing a serious example of an armed robbery, enhances your moral culpability.
30However, as fairly conceded by the prosecution in written submissions, whilst there is no evidentiary basis to support a reduction in your level of moral culpability due to any mental impairment pursuant to the Verdins' principles,[1] I am prepared to take into consideration your previous diagnoses with regard to major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder, having regard to your history of considerable trauma when assessing your moral culpability for the offending.
[1]R v Verdins & Ors (2007) 16 VR 269.
31Furthermore, again as fairly conceded by the prosecution in this case, I am prepared to moderate your moral culpability to some degree on the basis that your offending, it seems to me, was committed solely to satisfy your addiction to heroin.
Personal circumstances
32I turn now to your personal circumstances. Your personal circumstances were helpfully set out in your counsel's written submissions dated 11 August 2022, and in the psychological report of Gina Cidoni dated 4 June 2022, Exhibits A and B respectively.
33You are now 28 years of age. You come from a close and loving family consisting of your parents, Virginia and Keith, who have been heavily involved in your hearings, and your twin 26-year-old siblings, Angus and Isabella. In many senses, your childhood, it seems, was a happy one. You were popular and social and excelled at school, completing Year 12 at Caufield Grammar and obtaining a score high enough to lead to your enrolment in a double degree in banking and finance at Monash University.
34Your difficulties, it seems, started the year after you finished Year 12 in 2012. In January of that year, you witnessed the death of a friend with whom you were travelling on the Caulfield train line after he had climbed onto the roof of the train and was electrocuted. Your resulting mental health symptoms as a result of witnessing that tragedy understandably led to your inability to complete your tertiary studies in 2012.
35In 2013, you were the victim of an unprovoked gang attack when leaving a local pub. You were bashed unconscious and your best friend, Sean, was severely injured, requiring several surgeries for a broken nose and eye socket.
36The following year, in 2014, you witnessed a hotel explosion whilst on a ski trip to Hakuba in Japan, this event triggering flashbacks and memories of the train incident.
37Perhaps unsurprisingly, by 2016, you were experiencing deep depression and post-traumatic stress symptoms. No doubt they were exacerbated in 2017 when your best friend from kindergarten, Sean, who along with you had been attacked whilst leaving a pub in 2013, texted you from a bridge in Melbourne to tell you that he was about to take his own life. Sean then jumped to his death. This corresponds with the period when you began using heroin.
38Your limited criminal history commences the year after, in January 2018, when you received an adjourned undertaking for offences which included theft, recklessly causing injury, criminal damage, possession of amphetamine and using a carriage service to menace. Your subsequent prior matter dates from March 2019 when you received a fine for a single charge of theft.
39Also in 2019, you sustained a broken collarbone from a bike accident, which required multiple surgeries following ongoing infections, leading you to spend some four months in and out of hospital.
40Amidst this history of considerable trauma, whilst you had begun using cannabis from the age of 12, that did not develop into a daily habit until the age of 18, before your drug use progressed to experimental use of ecstasy and heroin use by the age of 24, with daily use of this substance from the age of 21 up until the time of your offending.
41The letter from Dr Vanessa Keleher from the Bromham Clinic dated 13 May 2022, Exhibit C at your determination hearing, documents your attendance upon Dr Keleher for psychiatric care since 2013 for treatment of mood and anxiety symptoms. According to Dr Keleher, you have been diagnosed with major depression, for which you have been prescribed medication. You have also been engaged over time with specialist drug and alcohol team support with regard to both marijuana and opioid dependence, which has included Suboxone injections. According to Dr Keleher, as at May 2022, you had recently been diagnosed with post-traumatic stress disorder during a recent hospital stay.
42Ms Cidoni, in her report, confirmed diagnoses of generalised anxiety disorder, major depressive disorder and substance use disorder (in remission).[2] In her report, Dr Cidoni referred to your various efforts with regard to detoxification at the Delmont Hospital, your attendance at Narcotics Anonymous, and the presence of protective factors in your life; in particular, your family.
[2]Psychologist Report by Gina Cidoni dated 17 May 2022 at paragraph 69.
43According to Ms Cidoni, your risk of perpetrating future violence is assessed as low, given the many protective factors in your life.[3] According to Ms Cidoni, your mental illness would cause undue distress and problems in a prison setting, and such a scenario would be more onerous for you than for individuals without such conditions as those referred to by her. A mitigatory allowance pursuant to Verdins' principle 5 is therefore warranted.
[3]Ibid 74.
44You gave evidence before me on 12 August 2022 at a previous hearing, where you indicated that at the time of the offending, you were in the grip of a heroin addiction, spending up to $300 a day. You explained that at the time, you felt that the world was a bad place, and you had contemplated not being part of it. Having considered your personal circumstances, I am satisfied that, at the time of your offending, you were in the grips of a substantial drug addiction and your offending was motivated by obtaining money to support that addiction.
Applicable sentencing factors
45Turning now to applicable sentencing factors, I am satisfied that there exists in your case an unusual and powerful constellation of mitigatory factors impacting upon sentencing.
46I accept that you pleaded guilty at the earliest opportunity. In the context of the COVID-19 pandemic and its unprecedented impacts upon the delays associated with the disposition of cases in this court, there is an enhanced utilitarian value to your early plea of guilty, warranting a substantial discount on penalty.[4]
[4] Worboyes v The Queen [2021] VSCA 169.
47You are a relatively young man with a limited criminal history, and I was informed and accept that there has been no subsequent offending. This clearly stands to your credit.
48I am satisfied that a further mitigatory allowance is warranted due to your remorse. In addition to your early plea of guilty, your remorse is reflected through your conduct with police when you attended by appointment on 26 August 2021, where you were interviewed with regard to the attempted armed robbery, as confirmed by the prosecution in the prosecution opening.During that interview, you expressed remorse and guilt for your actions and stated that both offences had been weighing heavily on your mind.[5] Furthermore, you took the unusual step of giving evidence before me at a previous hearing on 12 August 2022 where you explained how you felt about your offending. You impressed me with your candour, indicating that you have thought about your victims, and the fact that you have no doubt traumatised them makes you feel sick.
[5] Summary of Prosecution Opening for Plea dated 17 May 2022 at paragraph 60.
49Your remorse is also evident from the reference material tendered on your behalf at your determination hearing.
50Whilst your progress in the community since being bailed has not been linear, I am satisfied in all the circumstances that your prospects for rehabilitation are favourable. Clearly, you come from a loving and supportive family, who will be, in my view, critical to your rehabilitation. Your academic background indicates that you are a young person with considerable promise and aptitude.
51According to your treating psychiatrist, Dr Keleher, from the Bromham Clinic, during your lengthy engagements, you have been diligent and highly cooperative with the process of engagement and treatment. According to Dr Keleher, you have 'excellent prospects for recovery'. According to Dr Keleher, 'It is significant to note Mr Howie's desire to change. He has worked consistently to address his substance usage and has made remarkable progress in such a short time frame'.
52According to the reference from your mother, Virginia, dated 11 August 2022, since being granted bail, you have immersed yourself in AA meetings. You have attended regular fortnightly appointments with Dr Keleher and routinely attended appointments with Dr John Sherman of First Step. You have also worked on an ad hoc basis with your brother, Angus, who has a landscape business.
53According to the letter from Frank Brunetti, addiction and recovery treatment counsellor and psychotherapist, in his letter dated 28 April 2022, you have been an in-patient at the Malvern Private Hospital on four occasions during 2021 and 2022 with regard to your drug addiction issues and related anxiety and depression. The report from Mr Brunetti is favourable with regard to your rehabilitative progress and prospects.
54A letter from Dr John Sherman from First Step dated 17 May 2022 confirms that you have been receiving Buvidal injections with regard to your drug addiction issues.
55Clearly, as evidenced from the extended pre-sentence assessment report from Corrections dated 16 September 2022, you have had relatively recent involvement at the Delmont Private Hospital with regard to voluntary in-patient stays, which have impacted upon your ability to undertake the assessment with Corrections. Can I just stop there. Ms Poole, is Delmont Private Hospital the Malvern Hospital? Are they one and the same thing?
56MS POOLE: No, no.
57HIS HONOUR: They are different?
58MS POOLE: They are different, yes, Your Honour.
59HIS HONOUR: Thanks.
60Your ongoing involvement with rehabilitative efforts in this regard is to be commended although concerns were expressed by Corrections with regard to your willingness and ability to be supervised and monitored on a Community Correction Order.
61As evidenced from the addendum report from Corrections dated 7 November 2022, that assessment has now been completed. Thankfully, Corrections noted proactive behaviour on your part with regard to that assessment. Whilst you indicated an interest in a Suboxone reduction program under the care of Mr Brunetti, and enquiries by Corrections indicate that such a program may require interstate attendance, I am satisfied in all the circumstances that you presented well with regard to the assessment and expressed appropriate commitment to a Community Correction Order, should one be imposed.
62By way of recent circumstances referred to in that addendum report, in recent weeks you have confirmed that your strong family supports are intact. You have recently been working with your brother. You have remained
substance-free. As at 4 November 2022, you indicated to Corrections that you had obtained a new part-time job making deliveries for a local pharmacy, Tuesdays to Fridays, from 4 pm to 5.30 pm. Those details were confirmed in the most recent outline of submissions by defence dated 18 November 2022.63I am satisfied, as I have indicated, that your rehabilitative prospects remain favourable - indeed, as conceded by the prosecution, highly favourable.
64Your counsel submitted that in all the circumstances, a combination sentence involving time served together with an appropriately constructed Community Correction Order was warranted in your case. In addition to submitting that a combination sentence involving a sentence of imprisonment together with a Community Correction Order would be within the range, Ms Watson on behalf of the prosecution fairly conceded at your determination hearing on 12 August 2022 that the prosecution does not submit that the public interest would be best served by you having to serve a further term of imprisonment. The prosecution position with regard to sentencing was confirmed today by Ms Stokes, who appears on behalf of the Director of Public Prosecutions at this hearing.
Sentence to be imposed
65Having carefully considered this matter - in fact, Mr Howie, would you now stand. Having carefully considered this matter, I have determined that due to the exceptional and powerful constellation of mitigatory matters in your case, a combination sentence that does not involve you returning to prison, and that involves a carefully tailored Community Correction Order, is the appropriate disposition in your case. Indeed, in my view, returning you to prison at this critical stage in your rehabilitation would be catastrophic for you and would likely derail your rehabilitative efforts and ultimately not be in the community's interest. As is often said, genuine rehabilitation of an offender can effectively facilitate community protection.
66On Charge 3 on the indictment, possess a drug of dependence, namely cannabis, you are convicted and fined the sum of $150.
67On Charges 1 and 2 on the indictment, you are convicted and sentenced to 13 days' imprisonment.
68Pursuant to s18 of the Sentencing Act 1991, I declare 13 days has already been served, and I order that that period be deducted from the sentence, meaning that you are not required to be returned to prison.
69In addition, in relation to Charges 1 and 2 on the indictment, I order that you undergo and complete a Community Correction Order. The duration of the Community Correction Order, which will commence today, will be 18 months.
70As is the case with regards to all Community Correction Orders, there are a series of mandatory terms that apply to this order, and they are as follows:
a)You must not commit another offence for which you could be imprisoned during the time that the order is in force;
b)You must comply with any obligation or requirement prescribed;
c)You must report to and receive visits from Corrections;
d)You must report to the Community Correction Centre nearest you within two clear working days of the order starting. That location of that Community Correction Centre will be the Melbourne Community Correctional Centre located at 50 Franklin Street, Melbourne;
e)You must report to and receive visits from the Secretary or his or her delegate;
f)You must report to the Community Corrections Centre within two clear working days of the order starting;
g)You must let a Community Corrections Officer know within two clear working days of you changing your address or job;
h)You must not leave Victoria without first getting permission to do so;
i)You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
71In addition to the mandatory terms or the standard conditions, you will be subject to the following further conditions, which are also mandatory:
a)I order that during the duration of the Community Correction Order, you complete 200 hours of unpaid community work;
b)Pursuant to s48CA of the Sentencing Act 1991, I declare that 100 hours satisfactorily undertaken with regards to treatment and rehabilitation conditions may be credited towards the unpaid community work condition;
c)I order that you be supervised by Corrections;
d)I order that you be subject to treatment and rehabilitation; that is, that you undergo any assessment and treatment, including testing for drug abuse or dependency;
e)I order that you undergo treatment and rehabilitation; that is, any mental health assessment and treatment – that may include psychological, neuropsychological, psychiatric – or treatment in a hospital or residential facility;
f)I order that you undergo treatment and rehabilitation; that is, any program that addresses factors related to your offending behaviour.
72Furthermore, pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty, but been found guilty by a jury, I would have imposed a total effective sentence of three years' imprisonment with a two-year non-parole period.
73Finally, with regards to the various ancillary orders - that is, two compensation orders, a disposal order and a forfeiture order - those applications not being opposed by you, I will make each of the ancillary orders.
74Before I turn to Mr Howie, firstly, Ms Stokes, any ambiguities, or have I missed anything with regards to the sentence?
75MS STOKES: No, Your Honour.
76HIS HONOUR: Ms Poole?
77MS POOLE: No, Your Honour.
78HIS HONOUR: Thanks. Mr Howie, it is important that you understand what has just happened. I have imposed what we call a combination sentence, which, on the record, will be a term of imprisonment in combination with a Community Correction Order. In your case, the imprisonment has already been served - that is, the 13 days that you have already done - so the Community Correction Order will start today.
79I can only impose this order, the Community Correction Order, if you consent to it, if you agree to do it. And you can only agree to it if you give informed consent; that is, if you understand what is involved in the order and what can happen to you if you fail to comply with the order without any reasonable excuse. Ms Poole, are you satisfied that your client understands the conditions that I have just imposed, or do you wish to speak with him briefly?
80MS POOLE: Could I just have one moment, just to ensure - - -
81HIS HONOUR: Sure, sure.
82MS POOLE: Thank you.
83HIS HONOUR: Mr Howie, I understand you have just spoken with Ms Poole. You understand the conditions that I have imposed?
84OFFENDER: Yes, Your Honour.
85HIS HONOUR: Yes. So they are all mandatory conditions: 200 hours of unpaid work, 100 hours of which can be allocated through treatment and rehabilitation; various treatment and rehabilitation conditions, including for drugs, with regards to mental health and also with regard to offender behaviour programs.
86You must comply with each of the conditions on the order, including the mandatory ones that I read out at the beginning, which include not committing any other offence punishable by imprisonment, the list of which is extremely long. Should you commit any offence, or should you fail without reasonable excuse to comply with the order, you can be charged with breaching the order.
87The maximum penalty for breaching the order is three months’ imprisonment, but most importantly for you, the matter will probably come back before me, and under the Sentencing Act 1991, on a breach, I have powers which include cancelling the order and resentencing you for the original offences. Be well assured, Mr Howie, I will take a very, very dim view if you do not comply with this order, and I will have essentially all options available to me on resentencing.
88You are very fortunate to have received this order, and I have done so in recognition of your excellent work and the protective factors that are in place. But again, I will take a very dim view, a negative view, if you come back before me on a breach. Do you understand what is involved with the order, and do you understand what can happen if you breach the order?
89OFFENDER: Yes, Your Honour.
90HIS HONOUR: Knowing all of that, do you agree to comply with the order?
91OFFENDER: Yes.
92HIS HONOUR: Yes, all right. Well, a copy of the order will come down to you now for signing. Ms Poole, would you accompany Mr Davine down to the back of the court.
93MS POOLE: Excuse me, Your Honour.
94(Community-based order signed and acknowledged.)
95HIS HONOUR: A copy of the order will be made available to counsel immediately, and of course to Mr Howie. Mr Howie, you can take a seat.
96MS POOLE: Please the court.
97HIS HONOUR: Finally, can I just very briefly address Mr Howie's parents, Mr and Mrs Howie. I just want to acknowledge your attendance at each and every one of the hearings in this matter, and I have observed you to be very committed. And to be blunt, the process has been a very painful one for you. That is very clear to me. The court acknowledges your assistance and attendance. The court often does not see family members in support of offenders, and so it is certainly my view that your protective role with regards to your son will be very important moving forward.
98Can I just urge you as well to reiterate to your son, if there are any difficulties with regards to this order, he needs to speak up. He needs to make his concerns and problems known to Corrections before things snowball. You do not want to come back here on a breach hearing. So I just wanted to acknowledge your attendance today, as you have previously attended, yes, all right, thanks.
99Mr Howie, good luck with this order. I hope I do not see you again because if I do, it will mean that there is a problem, thanks. Mr Swindon adjourn the court.
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