Director of Public Prosecutions v Hoye

[2018] VCC 1132

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-00621
CR-17-00791

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL JAMES HOYE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	25 July 2018
DATE OF SENTENCE:	25 July 2018
CASE MAY BE CITED AS:	DPP v Hoye
MEDIUM NEUTRAL CITATION:	[2018] VCC 1132

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1Samuel James Hoye, on indictment ending 302, you have pleaded guilty to one charge of causing serious injury intentionally and one charge of causing injury intentionally.  Those crimes carry maximum penalties of 20 years and ten years respectively.

2On indictment ending 697 you have pleaded guilty to one charge of aggravated burglary, two charges of intentionally causing injury and two charges of destroying property.  Those crimes carry maximum penalties of 25 years, ten years and ten years respectively. 

3In this situation where the matters have been canvassed over an extended period of time and there are no victim impact statements, I do not propose to go into any sort of detail about the nature of the offending.  I will simply direct that the Crown openings remain on file and be seen in conjunction with these, my sentencing remarks.

4Each of the events involves the use of drugs and alcohol and involves gratuitous violence on your part.  One involves an aggravated burglary as well as assaults and one involves intentionally causing serious injury.  In both matters, which occurred in late 2016 and New Year's day of 2017 there was a real risk to everybody concerned and I am sure it was a very frightening experience for everybody concerned.  It is serious offending and must carry an appropriate penalty.

5You have pleaded guilty in somewhat extenuating circumstances.  You do have a significance criminal history and obviously I have to take that into account.  Your plea of guilty, in all probability, is accompanied by remorse and in this particular situation has had a real utilitarian benefit in that the circumstances of you being put on trial were going to be difficult indeed.

6It is a situation where you are now of an age where you face incarceration if you offend again on any occasion.  The basic history that was pertinent to what was going on here is that in April 2013 Judge Mullaly of this court, after you had been found unfit to plead, put you on a non-custodial supervision order. 
He backdated that order by a couple of years because you had been in custody some 544 days, whatever it was, in relation to it.  You were then released under supervised conditions with Disability Services. 

7For around about a bit over three years you did very well and you did not offend at all.  You reached a point where you were living self-sufficiently, albeit being visited by a nurse on a regular occasion.  It is clear that you have a good rapport with your worker and did have a good rapport with your worker and that when abstinent of drugs and abstinent of alcohol you can live a useful and meaningful existence.  However these incidents occurred, as I have said, in August 2016, January 2017 when you were no longer abstinent, were drinking and using all sorts of drugs. 

8There are a number of reports which have been tendered and I take all those into account. 

9Before I go any further, pursuant to s.464ZF of the Crimes Act you are required to provide a saliva sample for DNA purposes.  That order having being made if you refuse to provide such a sample police may use reasonable force to take it from you.  There is a disposal order sought which is signed and handed down. 

10When these matters first came on His Honour Judge Mullaly, having dealt with you previously instigated an investigation into your fitness to plead.  Various reports were obtained and various reports were relied upon.  It would appear that there was a view taken, certainly at one stage on your own self-reporting that you suffered from schizophrenia.  But I have grave doubts that that, in fact, is the case.  It appears to have been a belief that grew with very insufficient support for it.  The real difficulty is that you were found unfit to plead back in 2013 and your intelligence quotient and your cognitive disabilities have deteriorated since then.  I think it can be quite simply put in this way: you have an IQ of 41.  That is as low as I have ever seen and it speaks for itself. 

11Obviously the authorities in regards to that are clear and one has to take the view that general deterrence and specific deterrence, denunciation and appropriate punishment ought take second place, in my view, to the protection of the community in these circumstances and also the protection of you.

12Those reports also dealt with whether these matters could have been defended with a mental impairment defence.  I do not think that is so, I think it would have failed but if it had been successful the results might have been worse for you and worse for the system.

13I think the, as Mr Moore pointed out and I agree entirely, the real difficulties were summarised very succinctly in the report of the neuro-psychologist,
Ms Kennedy, says:

"Furthermore based on the history of charges and his cognitive profile, the chance of Mr Hoye re-offending is high.  He is not likely to change his behaviour without intense external supports.  It's noted that the longest period spent in the community between charges was when he was in support of accommodation.  It is my opinion that Mr Hoye will function best if it is in a supported, highly structured, calm environment, with provision of meals, supervision of medications and assistance with community tasks.  A regular, simple role would assist with providing some consistency and meaning in his life".

14They are the difficulties that are involved here.

15The non-custodial supervision order put in place by His Honour back in 2013 had a nominal minimum term of seven years.  Now those minimum terms are totally illusory as anyone who practices in the criminal law knows but in any event that non-custodial disposition is still in place.

16As I have indicated, I am going to give you a custodial sentence with eligibility for parole which will occur immediately.  Judge Mullaly is fully aware of all these matters and alert to them, as are Disability Services as I understand. 

17That it will give a significant period of time during which you will be entitled to be released if it can be organised for Disability Services and the Parole Board to endeavour to put into place a release plan for you which meets the concerns of Ms Kennedy and indeed the concerns of myself.

18Judge Mullaly, if there is to be a review and I am sure there will be, of a non-custodial disposition will be able to obtain appropriate reports where it can be sent.  The Parole Board can indicate what they may intend and he will be able to monitor, indefinitely, your existence in the community.  I think that is the safest bet. 

19Nobody can really work out what happened but IQ's of 41 are unlikely to get any better.  But that will be a role that he will undertake and as I say he is fully aware of all the circumstances that have occurred here.  I do not intend to go into more detail.  Things like rehabilitation and re-offending is pretty obvious
I would have thought in your set of circumstances.

20As again we agreed during the course of the plea the discussions have taken place on a number of occasions now over a period of time, will be there for any interested person to look at.  It is clear that whilst there were original concerns about your fitness to plead and Judge Mullaly has indicated this to me as well, it was your fitness to stand trial which is the true definition that was of a concern and your counsel has been able to speak to you this morning.  Somebody that you know and know well and who you trust and she has assured me that you are and were able this morning to place an informed plea of guilty to these matters and I have total satisfaction that that is, in fact, the case.

21So taking all those matters into account and doing the best I can, on indictment ending 302 - sorry, the other matter is my understanding is that the summary matters are to be withdrawn?

22MR MOORE:  Yes, Your Honour.

23HIS HONOUR:  All right.  I order they be withdrawn.  I am simply sentencing on the indictments.  Ending 302, on Charge 1, 18 months and on Charge 2, six months.  Three months of Charge 2 cumulative on Charge 1 which gives you 21 months.

24On indictment ending 697, Charge 1, that is aggravated burglary, 18 months.  Charge 2, six months.  Charge 3, six months.  Charge 4, one month and Charge 5, one month.  I direct that two months of Charge 2 and two months of Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  The total effective sentence on indictment ending 697 of 22 months.

25In all these circumstances and for reasons of totality I direct that five months of the sentence imposed on indictment 302 be served cumulatively on the total effective sentence imposed on indictment 697.  That gives an effective head sentence of 27 months. 

26I direct that there be a non-parole period of 18 months which effectively leaves the parole period from now, bearing in mind the PSD I will declare, of about eight months where people can get things into place and you may be able to be released well before then.  But that certainly puts it in a situation where it does not have to be done with unseemly haste.

27I direct that 570 days be reckoned as having been served under this sentence, which equates to a bit over 19 months.  Whilst in this situation you clearly have the decisions of Bugmy and Muldrock, they all come into play. 

28The best I can do on s.6AAA, because I am obliged to, as to say that overall, but for your plea of guilty and the way it has been conducted on your behalf,
I would have sentenced you to be imprisoned for five years with a minimum term of three.

29MR MOORE:  Your Honour pleases.

30MS THEOCHAROUS:  Your Honour pleases.

31HIS HONOUR:  Now that covers everything?

32MR MOORE:  It does, Your Honour.

33HIS HONOUR:  All right.  I don't know whether a lot of those mentions are going to be transcribed but I can certainly request that at least - so if Judge Mullaly wants me to.  Well he can do it.  The sentence will be, I meant mentions I mean.  I didn't say - so if they need to be transcribed obviously they will be retained and they can be transcribed.  I don't think VGRS are going necessary to do them.  We've got quite a few of them but they might have to be asked for.
 But as I say I've discussed this with Judge Mullaly at length and he's fully aware of what's going to unfold over the next few months. 

34All right, now I know he doesn't understand a lot of that but I'll leave it to you but as I say I just congratulate counsel and instructors in the way this has been resolved.  A very sensible solution if I may say so and very much appreciated.  Yes, all right.  I'll just stand down and come back and sentence at two o'clock.

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