Director of Public Prosecutions v Hughes

[2021] VCC 380

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00936

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON HUGHES

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 March 2021
CASE MAY BE CITED AS:	DPP v Hughes
MEDIUM NEUTRAL CITATION:	[2021] VCC 380

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused	Ms T. Theocarous

HIS HONOUR: 

1Clinton Hughes, you have pleaded guilty to one charge of aggravated burglary, being a person present with the intention to steal, one charge of causing injury intentionally, one charge of threats to kill and one charge of theft.  Those crimes carry maximum penalties of 25 years, 10 years, 10 years and 10 years respectively.

2You are now 29 years of age and were 26 years of age at the time of the offending.  Indeed, you have been in custody now for some 721 days.

3You pleaded guilty to a settled indictment and must get the benefit of that.  You get the utilitarian benefit of the victim not having to go through a trial, though I note there was a committal, and I accept in your situation, as far as you were able, because of your many disabilities, you have endeavoured to express appropriate remorse.

4You do have a significant criminal history.  You have priors for violence and priors for dishonesty, including, if I recollect correctly, much earlier on, one for the same type of offending.

5In those circumstances, it is a difficult situation.  The prospects of your rehabilitation are obviously going to be somewhat problematic.  You have spent a number of times in prison and I do not need to go into the detail of all of that.

6The summary of the offending is that the victim is a Ms Loraine.  She was 83 years old at the time of the incident and she was living around Morwell. 

7On Friday 14 September at around 6.20 in the morning, you went to her house.  You entered the house, which is a two level dwelling and you went upstairs where she was sleeping in her bedroom.  As it was just turning daylight, she looked towards the bedroom door and saw a figure which she thought was her son.  She said to stop playing around and believed she was asking him to come into the bedroom.

8While she was up getting dressed at this point in time, she was wearing simply a vest and no other clothing.  You came back into the bedroom and launched yourself at her.  You started yelling 'Do you live here alone' or words to that effect.  You grabbed her by the back of the neck and pushed her face first onto the bed.  You then demanded to be told where the money was and threatened her by saying words to the effect 'Don't scream or I'll choke you.'

9At that point, you picked her up by her hair with one arm, using the other arm to scoop her up from the bed.  You grabbed her from under the crotch where you were holding her and threw her on the ground.  She then tried to put her head under the bed so you couldn't grab her by the neck anymore.  You still managed to grab her either by the throat or by the hair.  When you threw her back onto the bed, you said 'I'll kill you if you don't tell me where the money is.'

10She then told you that her money is in a black bag downstairs.  She offered to get it and then said to you, 'Would you do this to your mother and grandmother?'  You were yelling at her and striking her.  She described it has belting her.  During that assault, you said words to the effect of 'I know you live here alone.'  You also asked if there was anyone else in the house and clearly there was not.  She was fearful, she said, and in disbelief.  She said that she did not want to 'go' this way.

11During the course of it all, she told you that you would not be able to get out the door as she locked it behind you and you continued to attack her.  You left and went downstairs.  She went came out of the bedroom and knew she had to get out of the house.  She was very fearful for her safety.  She left the house and went next door in the semi naked scenario, wearing only a vest.  She went into the house and was given a pair of tracksuit pants to wear.  She told the neighbour what had happened.  Police were called and noticed she distressed, had facial swelling and a mark on her bottom lip.

12Police were there at approximately 7.40 am and started the investigation.  She was taken to hospital.  Her black handbag was at some stage taken from the house.  Inside it were two pairs of glasses, a small amount of cash, an NAB credit card and various other personal items, such as her driver's licence and chequebook.  She was unable to give a description of her attacker other than the person had on a Perspex type visor and was also wearing gloves.

13As a result of the assault, she had deep bruising and soreness to her face and hands.  A police investigation was commenced, which I do not really need to go into.  What occurred was that you were endeavouring to give cheques that had been taken from her that day, in a very short time afterwards, to certain people and a jumper that was in her bedroom was examined for DNA and clearly your DNA was on it.  At that point in time, police began to search for you. On 8 April.  You were arrested and interviewed at the Morwell police station.

14That is the description of it.  There is a victim impact statement where
Ms Loraine describes the consequences of this for her.  She said 'It has impacts on me on a regular basis even in my own home at times.'  'He said he'd been watching me walk my dog and knew that I lived on my own, so it was certainly premeditated.'  I will talk about that in a moment.  'The violence and indignities has left me with trauma resulting in stress at times as well as anxious, which is hard to shake off, especially at night when there are unfamiliar sounds which I will wake up feeling alarmed again.'  Ever since then, her daughter and son-in-law have shifted in and she feels a bit safer.

15The consequences for this lady are very significant indeed.  She is an elderly woman in a state of undress and was treated with gratuitous violence.  Not only was she stolen from, she was humiliated and clearly feared for her life.  It is the threat to kill which is sometimes made in a throwaway situation, but in yours, she really believed it and she said she did not want to go that way.  As a consequence of all this, it would appear that she has lost her independence.  She has clearly ongoing psychological problems and as Uncle Lloyd said to you during the Koori Court hearing, the offending can only be described as disgusting and shameful.

16It is a somewhat difficult sentencing task.  In the normal course of events, it would call for general and specific deterrence, as well as denunciation and appropriate punishment.  In your situation, community protection plays an important part.

17You attended Koori Court and to your credit, you faced up to it and did the best you could in talking to the Elders.  As I have already indicated, they pointed out to you the nature of the offending and simply how bad it was.  Effectively Uncle Lloyd, when he was speaking to you, was so upset by it all, he, on one view, banished you from the Latrobe Valley.  Whether that holds or not, I do not know but I think you have got to understand that as Uncle Lloyd and Auntie Margaret both said to you, this reflects on the whole Koori community.  It is not just you and people such as Uncle Lloyd and
Auntie Margaret and other Elders, as well as many other Aboriginal people, try to do their best in terms of getting on with others.  This sort of conduct destroys a lot of that good work.

18You have, as I said, now been 721 days in protection.  You will continue to be in protection as I would know from the situation that you are in.  As I understand it, you have been assaulted a number of times in prison because of the allegations against you.  There is one allegation which was not relied upon during the plea, but I can understand why that would have other prisoners very angry, though I have to be careful not to sentence you for that.  On the last occasion, you were stabbed a number of times, I cannot really go into that because it is subject of a police investigation.

19Again, to your credit, you did face up to the Elders.  You must have known it was not going to be a pleasant experience and I accept that, with your limitations, it was an attempt by you to endeavour to some way or other to make amends.  You purported to apologise and I accept that.  How much insight you have, the psychologist says there is some.  It is a bit of a difficult question to assess.

20The first thing I have to do in terms of this sentencing is not approach it from an emotive viewpoint.  It is very hard reading that summary knowing the age of the lady, knowing what was done to her, the humiliation and indignity as well as the violence.

21As I discussed with counsel, it is a difficult sentencing process in another way too.  The aggravated burglary itself had you, when you realised she was not in fact there and I am working on the basis that you knew that the lady lived there and therefore there was a probability that she would be present, you could have turned around and walked away.  At that point in time, it would not have been the worst aggravated burglary that I have seen.  However, you did not do that.  You then proceeded to belt her, as she said, over a period of minutes and you then took her handbag.  The threat to kill is a serious one.

22What I have done in the end is endeavoured to split them up.  The aggravated burglary, as we are all aware, is complete the moment that you enter the door and it is my view that as aggravated burglaries go, it is not towards the higher end, but what does cause me problems are the assault and the threat to kill and those matters will be served with significant cumulation on the sentence I impose for the aggravated burglary.  It is not suggested otherwise than that a very significant gaol sentence is appropriate with a non-parole period.  It is then a matter for the authorities as to when and if they release you.

23I now look to matters personal to yourself and again, having spent so much time over the last decade in Koori Court, it is a very, very sad scenario and one that is distressingly, in one sense, common.  You, it is accepted by the Crown, have an intellectual disability and accordingly, the principles in Muldrock apply.  You, the Crown accept, have mental health issues and the principles of Verdins apply.  It might be a situation to be said that you are better off in gaol, but not when you are being stabbed and victimised by other prisoners because of what you are in there for.  Thirdly, your background is terrible and it is conceded again by the Crown, that the principles in Bugmy must apply as well.

24However, as has been pointed out, whilst they caused, and I will be going through them in little detail at the moment, whether that caused great concern and the call for moderation of virtually all of the considerations in sentencing, it is a circumstance where community protection just demands that an appropriate sentence be imposed.

25I have endeavoured in imposing it to give as much credit as I can for the very, very difficult situation that your life has created for you through, in many senses, no fault of your own up until now.  But as I say, in the end, it is serious offending.

26Your counsel provided submissions on your behalf and there has also been filed a report from a psychologist and also a report from a neuropsychologist.  I will be directing that those reports remain on the court file so I do not have to go through them in great detail.  There is also a certificate of intellectual disability, however it is a situation where anything such as a Justice Plan is way out of the question here.  A community corrections order does not even enter the playing field.

27Your parents were both Aboriginal people and your father is now deceased and you did not know, as I understand it, a lot about him.  Your background has been described as one, in the submissions of your counsel, 'Severe disadvantage during his upbringing, including an absent father who later passed away to illness related to alcoholism, an older brother who he was close to had passed away from a heroin overdose.  Intellectual disability that was not diagnosed until Mr Hughes was 13 years of age, at which time he was living in residential care units in Traralgon and had largely disengaged from formal education.  So he was unable to realise the benefits of an education aide and other assistance.'

28You were, I would've thought perhaps recognised as having an intellectual disability prior to that, but the end result that you are functionally illiterate.  You have, from what I can gather, only worked for a very short period of time.  You had problems with alcohol, you had problems with ice and I would accept that in this situation, the circumstances were that you would have been ice affected.  That is not an excuse.  Indeed, when one looks at what has been described, you were in a situation where you thought it through sufficiently to put on gloves and to put on some form of facial disguise.  So as I say in the vernacular, you were not that out of it not to try and hide your involvement.

29I then turn to the reports of Ms Rogers and the neuropsychologist.  Again, as I think I have already indicated, they will stay on the court file.

30Ms Rogers opined, among other things, psychometric assessments conducted in the current interview indicated extremely severe levels of anxiety and depression, very high levels of Post-Traumatic Stress Disorder.  She said 'Mr Hughes had not recalled ever being diagnosed nor treated in the past.  As such, it was difficult to assess how longstanding these psychological illnesses are.  Factors including out of home care, early exposure to alcohol, other drug abuse, interrupted school attendance, acquired brain injury,' which I note from a car accident.  And homelessness are related to sentencing and she says as set out in Bugmy.  I could not agree more.  That also gives rise because of the Post-Traumatic Stress Disorder and the high levels of anxiety and depression, as I have already indicated to the principles in Verdins.

31You have no children of your own and you have no current partner.

32Again, as I have already indicated, you were out of home at the age of 13 due to your substance use.  You were placed in a residential unit in Traralgon.  It was at that point in time, as is so often the case, it is unfortunate to have to report, your substance use increased significantly.  You left the residential unit as soon as you turned 18 years old and subsequently couch surfed, living with different friends until you were remanded in custody.  Since then, it has been out and in on a regular basis.  You endeavoured to express to her remorse and shame due to the nature of your offences and I again accept that is the case.  You just have great difficulty in explaining it.  You did not get past Grade 7 at Kurnai College and it is pretty clear from that material that you do in fact have an acquired brain injury.

33At the age of 12, you started drinking alcohol.  Cannabis from 12 and you have a history of using ice from the age 17.  Fights and just totally transient background.

34You have endeavoured on a number of occasions to get rehabilitation.  You have been to Bunjilwarra Youth Alcohol, Hastings, you have been to Galiamble, you have been to Wulgunggo Ngalu and you did not recall ever having alcohol and other drug counselling.  It is a pity that Wulgunggo Ngalu was not able to help you any more than it did.  But at the end of the day, whilst you say you preferred that place, unfortunately those sort of options are somewhat behind you.  Again, at the age of 29, that is a very unfortunate situation.

35You have reported pancreatitis and you have reported that your kidneys and liver are failing.  You have been having symptoms of that since around about 2014.  There is no medical material before me to support that but I have no reason to doubt that it is true.  Again, they point out the effects of the stabbing in gaol and other assaults upon you and I point out that you have had no opportunity of being able to speak to any mental health professional or psychiatrist.

36Because of the fact that you will be in protection for the entirety of this sentence, I would have clearly thought, it is going to be difficult for you to access programs.  You are going to be in a very limited situation insofar as connection with your culture is concerned and again, it is extremely unfortunate but unfortunately unavoidable.

37The report of Dr March essentially says the same things and I do not really need to go through that and he agrees with the concept of an acquired brain injury of at least mild severity and he then went on to say 'With regard to subjective symptoms, Mr Hughes stated he suffered from depression, anxiety and panic attacks.  Described his recent mood as probably down and depressed and distressed in the two weeks as the court hearing was approaching.  He uses a training exercise of playing cards for relaxation.  He described being in fear of being stabbed following the knife attack he was subject to last year at Ravenhall.  His panic attacks started following the attack.  He stated if he didn't swing back he would have been dead.  Since then he struggles with the fear response and sits only with his back against the wall.  Currently, his appetite is good, his sleep is limited with the two hour being awake in the middle of the night.'  Talks about sleep difficulty and the like.

38In other words, not only are you in protection but as I understand it, you were stabbed in protection and for someone who is very experienced in the criminal law, I understand that you are going to do this sentence in fear.  Sometimes, prisoners are able to just adapt and adjust but if you are in that back to the wall situation, that is going to go on for a long time and it is extremely unfortunate that that is the case and I have great sympathy for you in that set of circumstances.

39You said at some stage, you stopped using alcohol a few years ago.  I think that is possibly problematic.  You have obviously not, I would have thought and this was not discussed during the sentencing conversation but I would have thought you have got Sorry business difficulties as well as far as your brother is concerned and again, I think I can leave the medical material at that.

40I do not know what is going to happen with you in the long run.  I do not think anybody does.  You are well aware of the circumstances if you are released and use drugs again.  The average age of Koori men is limited.  Whether you can go back to the Latrobe Valley, I do not know.  Whether it would be a good thing, again I do not know.  I can just simply leave all these matters up to the authorities.  You have done a significant amount of time during the COVID situation and you have been unable to have contact visits.  In fact, at court yesterday was, I am told, the first time you had seen your mother for two years.  Those sorts of things, particularly for an Aboriginal person are very, very difficult indeed and again, I tried as best I can to take those matters into account.

41The risk of you reoffending would have to be regarded as high and as I said, the prospects of rehabilitation are really up to you and with your difficulties and disabilities in life, that is just going to be a difficult problem.  Unfortunately, I have to impose a sentence according to law and not according to my personal sympathies.

42It is a not a situation where mercy will be attracted.  What you have done is, as Uncle and what he said to you, just straight out disgraceful.

43However, endeavouring as best I can to give an appropriate sentence, you are sentenced to be imprisoned as follows.  On Charge 1, four and a half years.  On Charge 2, three and a half years.  On Charge 3, two and a half years.  On Charge 4, nine months concurrent.

44I direct that two years of the sentence imposed on Charge 2 and 15 months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives a total effective sentence of seven years and nine months.  I direct that you serve a minimum term of five years before becoming eligible for parole.

45I direct that 721 days be reckoned as having been served under this sentence.

46Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 12 years with a minimum term of nine.

47I simply, from the point of view of completeness, say that I have taken into account the question of totality and very much taken that into account.  The assessment of each offence, reasonable minds might differ on which is the more serious and the like, but again, I have endeavoured to give an overall sentence which reflects the nature of what took place and I will simply say no more about it than that.

‑ ‑ ‑