Director of Public Prosecutions v Hughes

[2021] VCC 1680

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-00097

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMPBELL HUGHES

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2021
DATE OF SENTENCE:	27 October 2021
CASE MAY BE CITED AS:	DPP v HUGHES
MEDIUM NEUTRAL CITATION:	[2021] VCC 1680

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – 48 x charges of theft – Possess a drug of dependence – Diesel particulate filters – Spree of criminality - Obtain funds to facilitate drug addiction – Imprisonment – Non parole period

Legislation Cited: s74 Crimes Act 1958, s73 Drugs, Poisons and Controlled Substances Act 1981

Sentence:Total effective sentence of 3 years and 6 months with a non-parole period of 2 years imprisonment. Pre-sentence detention declared of 235 days.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Kounnas	Office of Public Prosecutions
For the Accused	Mr J. James (Sentence) Mr A. Patton (Plea)	Cameron Marshall & Associates

HIS HONOUR:

1In this matter, Campbell Hughes appeared before the Court on
13 September 2021 and pleaded guilty to 48 charges in Indictment No.L11303206.  Mr Hughes is by profession a carpenter.  He was born in July 1977, is now 43 and was 42 at the time of these crimes.  He is currently living in Wendouree, pursuant to his bail orders. 

2As I said, the plea was a plea of guilty to the 48 charges in Indictment No.L11303206.  At the plea hearing, Mr Kounnas appeared for the Director, as he does today.  Mr Patton appeared on behalf of Mr Hughes and Mr James appears today.

3As to the indictment, it comprises 47 charges of theft and one charge of drug possession.  The facts were detailed in Exhibit A, which was tendered and
Mr Patton accepted that those facts are the facts upon which I am to sentence his client. Each of the 47 theft charges are offences against s74(1) of the Crimes Act which brings with it a maximum penalty of 10 years' gaol.

Circumstances of the Offending

4The offending involved, was a spree of criminality committed shortly after being released from gaol in April of 2020.  Mr Hughes went on a rampage, or a spree, between April 2020 and May 2020 and stole what are known as diesel particulate filters and/or diffusers (‘DPF’), 60 of them, at a total value, as best as can be ascertained, of $320,109.66.  The individual values range from, $1,100 through to a maximum of $17,360.  This is only rough, but it seems to me the median in regard to the charges, is somewhere between $5,000 and $6,000.

5The point needs to be made that in regard to Charge 46, that is the Hino truck, there is no value put on the DPF and Charge 38 relates to a numberplate, which was used to protect Mr Hughes’ identity during the various thefts.  I should also point out that Charge 13 involves, in fact, the theft of a muffler, which was valued at $5,564.57.  Charge 22 also involves a theft of a muffler valued at $5,299.59.

6The pattern of these crimes was that they all occurred within the month, and most of them occurred at night.  They were executed upon people who owned trucks which, no doubt, Mr Hughes’ own expertise was such as to tell him there was a DPF available to be stolen. They were taken from trucks parked at private addresses, or close to private addresses, from carriers, that is commercial carriers, where their trucks were parked at a transport depot and/or from venues that sold trucks.

7I am told by Mr Patton that the purpose of these thefts was to obtain funds to facilitate the drug addiction of Mr Hughes. Apparently, the DPFs contain platinum, there is a black market apparently for platinum and that is the reason why they were stolen.  Mr Patton submitted that Mr Hughes apparently received $350 per DPF, hence roughly, if we multiply by the 60 DPFs, the sum earned by Mr Hughes from the scrap metal dealers, whoever they happened to be, makes a figure of approximately $21,000, a significant difference from the actual value of the items.

8The additional charge on the indictment was Charge 48. This was a possession charge, Mr Hughes was found to be in possession of methamphetamine when he was arrested. It is a breach of s73 of the Drugs, Poisons and Controlled Substances Act, for which, given that Mr Hughes is being sentenced on a non-trafficking basis, the maximum penalty imposed is a year's maximum and it was a very small quantity of methamphetamine.  To the date of his bail, what is the correct figure,  Mr Prosecutor, in your Exhibit A, you have got 237 days, but the defence, in their submission, had 235 days.  Do we know what ‑ ‑ ‑

9MR KOUNNAS:  I had sought some instructions at the last occasion.  I understood it to be 235, but I will just confirm that now in the background.

10HIS HONOUR: Well, for the moment I will presume that it is 235. In addition, Mr Patton, on behalf of Mr Hughes, pleaded guilty to four summary matters, which were referred to this Court pursuant to s145 of the Criminal Procedure Act, they being four individual breaches of the Bail Act, in that Charges 7, 11, 62 and 74 were thefts committed while on bail, such being an offence under s30B of the Bail Act, for which the maximum penalty prescribed is three months' gaol and/or 30 penalty units.

Culpability

11I then come to the issue of culpability of these crimes, essentially when I am talking on this issue, I am talking about the thefts.  Except for the theft of the numberplate, which was clearly to hide Mr Hughes’ criminality and/or his identity, the thefts of the diffusers and/or filters were such that Mr Patton indicated to the Court that his prior offences, which I will come to in due course, had previously involved similar offences of stealing items from cars.  However, in my view, the culpability here in regard to the 46 charges, which relate to each filter, diffuser, or muffler, is high:

12I consider it high for the following reasons:

(a)   it represents a dramatic spree of criminality; 

(b)   it is a targeted attack on individuals and businesses, resulting, no doubt, not only from the loss of the item, which are valued in total at $320,000, but undisclosed to the Court, are no doubt untold losses of business hours and inconvenience in rectifying these vehicles, so that they can operate in the manner in which they are supposed to operate;

(c)   it was done for a financial motive, albeit that that financial motive was to obtain drugs;

(d)   they are, of course, illuminated by his prior offences, to which I will come, in due course. 

I certainly disagree with the submission from Mr Patton that these thefts were unsophisticated.  However, I do not disagree with Mr Patton calling them offences of a prolific nature.

Criminal Priors

13Coming then to Mr Hughes’ priors, they comprise some 16 pages before the Court.  However, significantly, as pointed out by Mr Patton, those priors did not commence until he was aged 36.  It seems that they commenced with a change in his life, which I will come to later, which meant that he became addicted to a variety of drugs, essentially amphetamines, as I understand it.  The first matter reported before me, even though apparently Mr Hughes started to get into trouble about 2012, was in 2015, when he was convicted of five theft charges, going equipped to steal and attempted theft. Mr Hughes was given a four month sentence and an 18 month community correction order.

14In December 2015, Mr Hughes received an 89 day sentence for theft matters, deal proceeds, four other thefts and possession of methamphetamine.  In October of 2018, he was given a further 14 days, but they were not theft matters, they were family violence issues.  In February of 2019, he got a community correction order for retention of stolen goods, again a breach of a family violence order, deal in proceeds of crime and breach of earlier CCOs.

15Then in October of 2019 Mr Hughes received an aggregate sentence of five months.  He had served by way of pre-sentence detention, I think some four and a half months and there was a further breach of a CCO, but convictions for theft, burglary and again, a breach of a family violence order. Then finally, that takes us to February of 2020, when again Mr Hughes was given two months for theft and that, of course, leads to his release in April, which again I will come to in due course, which was obviously very shortly before this spree of offending occurred.

16Mr Hughes, I want to make very clear to you. My reference to your priors has nothing to do with you being sentenced again on those matters.  They have been dealt with.  I do want to take you, however, to the reason why I have mentioned those priors.  As was said by the High Court in Veen (No 2) (1988) 164 CLR 465, 477:

'The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed.'

17But I stress to you, Mr Hughes, this, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offences.  On the same page, the High Court went on to say the following:

'…whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the incident offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history where it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows the need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.'

18As referred to by our own Court of Appeal in Berichonv The Queen [2013] VSCA 319, that Court described one's priors as being an animating factor in the sentencing process.

19The prosecutor submitted that the only appropriate sentence here, given the seriousness of the offences, their scope, the value involved and your criminal history, Mr Hughes, was an immediate period of imprisonment with parole.  It was the submission of the prosecution, without getting into particulars, as to the sentence, but certainly, that the period that you had served by way of presentence detention would be inappropriate, according to the prosecution, as the period of gaol that you should serve.  I should say, that I agree with that totally. 

20I also agree that it is not appropriate to accept the submission from your counsel that sentencing be deferred, which I indicated at the last hearing to Mr Patton and I will come to that in due course, but essentially, because of the sentence which must be imposed, despite the attempts that you have made as to your rehabilitation.

21In the plea, Mr Patton called as a character witness, Ms Phillips.  She has known you for a period of 15 years.  I was impressed with her support of you.  Ms Phillips has assisted your family, and in particular your children, at times when you have been unable to care for them yourself, either because you have been in gaol or you or your wife have been afflicted by drugs.  Since you were bailed in January this year, she has provided you with a residence, and that is one of the conditions of your bail. Ms Phillips told this Court that you have adhered to those conditions, adhered to the curfew and there is no police evidence to say you have not.  Not only that, but she obtained casual work for you from various friends of hers and indeed, it was a result of a friendship that her daughter had with a Mr Sanders who provided Exhibit 2 to the Court, that you obtained part-time employment with him.  I must say that again, that letter from him, Mr Sanders being the owner director of the company Adroit Fencing & Engineering Pty Limited, was again impressive and I note that he is prepared to assist you, when that is possible, in regard to further employment.

22Ms Phillips said that while you were in gaol in 2018, she in fact, essentially had the de facto custody of your children.  Those children, that is your three children are now in Queensland with your brother.  Your wife, as I understand it, certainly the mother of the three children at least, still has drug issues, albeit she also has a new partner.  Ms Phillips said that she took the view that you were committed to change, that despite this period of criminality which has landed you in gaol on many occasions since the age of 36, and your addiction and affliction to drugs, she is there to assist you, and thought that you did have the determination to change.

23Mr Patton tendered as Exhibit 1, the plea submission dated 9 September 2021.  He spoke to that plea.  Mr Patton took me to paragraphs 5 to 12, to your personal background and it is noted that somewhere around 2012, for a number of personal and family reasons, you started on this path of addiction.  It is a great tragedy, as prior to that time, you had had constant employment, in particular, a leading hand at the John Holland organisation.

24The methamphetamine not only afflicted yourself, but your partner.  It was described by Mr Patton as a tragedy, as you had not been before the Courts till approximately 2014, 2015 and since that time, not only was your former excellent work record destroyed, your family destroyed, lost your kids, but in addition to that, you had been in that period, in and out of gaol. 
Mr Patton submitted to me that you were committed to rehabilitate yourself.  That involves fundamentally you getting off the drugs, because if you come out of gaol and return to drugs, then you are going to get into further trouble.

25Clearly, for you, the lessons have been stark and if you want to be involved with your children again, you have got to complete this rehabilitation which you have began, as described by Ms Phillips.  Tendered in support of that submission as to your rehabilitation, given my queries in the hearing, was a series of urine analysis, which have been tendered today.  If they have not formally, we will tender them as Exhibit 3.

26They are seven certificates of analysis.  Apparently they come about from the operation of the DHHS and you being required to establish certain criteria I imagine, to be able to have access to your children.  They unfortunately show a gap of some four months, between April of 2021 and September of 2021, and in regard to that, I have had the explanatory letter that I have referred to in discussion with Mr James this morning.  It seems to me that is quite a professional assessment by Alex Turner, as to the explanation of the reasons.

27However, I think Mr Turner realistically understands that the Court must have some concerns about those results, not only for the breach, but each of them contains a rider that the sample received by the collection facility, was not accredited.  Now I do not know what that means or does to the sample and the impact of it, I am not really sure.

28In the end, I do not in any way take the view that I should be suspicious of the evidence given by Ms Phillips, that you have, in her view, attempted to rehabilitate.  I think, however, I must be guarded, given your background and the extent of your addiction, but in saying that, I do not want to, in any way, disregard the excellent steps you have taken.  Your rehabilitation is fundamental to your life, but unfortunately, you are going to have to serve further gaol. When you come out, you have got to continue those steps because unless you stay off drugs forever, you are going to continue to get into trouble.

29In addition, Mr Patton put to me the fact that while you were on remand, you were subject to COVID-19 restrictions.  I accept that totally.  Those restrictions being the lockdowns and the risk of being in gaol itself when you have that risk.  Up until recent times, it has probably been the safest place, but unfortunately, there has been some community transmission of the COVID-19 in gaol, in more recent times.

30Mr Patton also put the principles of Worboyes [2021] VSCA 169, [39] which I also take into account. Given the stress on the justice system, the plea made by you must be taken as particularly utilitarian and adds to the discount given normally for a plea. In addition to that, Mr Patton referred to your cooperation. You provided the investigators with details that they would not otherwise have had, and you also provided the appropriate pin to your phone.

31It was submitted to me that it is and was necessary for the Court to do its best to assist your rehabilitative steps to date.  I accept that principle.  It was put to me that I should leave you in your current status and defer the sentencing.  However, while clearly I take into account in your favour the steps taken, I do not agree that there's a need, in the particular circumstances of this case, for me to defer the sentencing.

32Mr Prosecutor, in regard to this sentencing and Mr James, I intend to impose an aggregate sentence.  I am required pursuant to s9(1) to indicate that the aggregate sentence will relate to Charges 1 to 47, and that that is what my intention is.  I am required to indicate why I do that, which is because I see the circumstances of these offences being so similar in nature, albeit they vary in value of the victim's loss, but occurring over one month and are essentially, exactly the same type of offence. In my view they satisfy the definition and description made by President Maxwell in DPP vFrewstal Pty Ltd [2015] 47 VR 660, 670, [44], and provide archetypical circumstances for the imposition of an aggregate sentence. Given that I am required to indicate that that is what I intend to do and tell you why, which I just have, do either counsel wish to make any comments about that?

33MR KOUNNAS:  No, Your Honour, I don't have specific instructions as to an aggregate sentence, however, it would be a hard position to argue against, given the factors that Your Honour's just elucidated.

34HIS HONOUR:  Yes, thank you.  I should formally say, in regard to the application for a deferral of sentence, I do not think, although I take into account the importance of rehabilitation for Mr Hughes, but given the totality of the circumstances that relate to his sentence, I do not think it is in his interests for me to defer the sentence.  A sentence must be imposed for a number of factors.  Those factors lead me to conclude that the prosecution submission as to no alternative but a period of sentence and parole period must be imposed, and hopefully rehabilitation will be maintained, while Mr Hughes is in gaol and once he gets out. With I am sure, the ongoing assistance of Ms Phillips, and indeed, the employer who provided the letter, Exhibit 2, which I referred to, which was an impressive letter from Ms Sanders.

Sentence

35Yes, if you would stand please Mr Hughes.  Taking all the matters that I have referred to into account, in regard to Charges 1 to 47, I intend to impose an aggregate sentence of three and a half years gaol.

36As to Charge 48, I will impose a sentence of one month's gaol. 

37In regard to the summary matters, that is Charges 7, 11, 62 and 74, I will impose imprisonment of one month on each charge.

38As I said earlier, pursuant to s30B of the Bail Act, the maximum penalty prescribed is one of three months.  I will not make any order for cumulation, if I need to make that clear in regard to the sentences for Charge 48 and the summary matters.  The total effective sentence therefore will be three and a half years.  The non-parole period to be served by Mr Hughes is two years.  I declare that pursuant to s18, that the 235 days served to date - sorry, did we say 235?

39MR KOUNNAS:  I've gotten some instructions, yes, 235.

40HIS HONOUR:  Two thirty-five days served to date be deemed service of this sentence and a declaration to that effect be recorded in the records of this Court.  I am required Mr Hughes, very hard to say this after you have copped a sentence, but Parliament ask me to tell you what the effect has been to you, that is the benefit of pleading guilty. There are a lot of factors involved in your sentence, but doing as best I can to comply with Parliament's wishes, can I say to you that had you not pleaded guilty, the sentence I would have imposed is not an aggregate sentence of three and a half years with a minimum of two years, but a sentence of five and a half years, the minimum of three and a half years.  I have signed the disposal order and we do not have Mr James any other order filed by the prosecution, so is there any other order, restitution order required?

41MR KOUNNAS:  I don't have that before me, Your Honour.  It was just the disposal.

42HIS HONOUR:  Yes, thank you.  All right, Mr James, do you want the opportunity to have a chat to your client in Court, after I leave?

43MR JAMES:  Yes please, Your Honour.

44HIS HONOUR:  Yes you do.  Officers will be good enough, given the Covid situation, it is much easier if you do it here rather than go down there because it all gets a bit formal when your client goes downstairs, because he is going to have to have a 14 day - that's still involved officers isn't it?

45PRISON OFFICER:  Yes, that's the case, Your Honour.

46HIS HONOUR:  Yes, go into isolation for 14 days, All right, good luck Mr Hughes, I hope that those good words that have been spoken on you and once you get out, that that comes off because you got to a stage in your life that you have got to get back to your earlier, lawful and worthwhile life.  Get rid of drugs.  Yes thank you both for your assistance.  With the officer's consent Mr James, you can have a chat to your client in here when I leave the Court.

47MR JAMES:  Thank you, Your Honour.

48HIS HONOUR:  Mr Prosecutor, ‑ ‑ ‑

49MR KOUNNAS:  As the Court pleases.

50HIS HONOUR:  ‑ ‑ ‑ anything I need to do as far as you're concerned?

51MR KOUNNAS:  No, Your Honour.

52HIS HONOUR:  All right, thank you.  Sorry, yes thank you Mr Tipstaff.

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