Director of Public Prosecutions v Hughes

[2019] VCC 1521

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00857

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES HUGHES
CAMERON HUTCHINSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bendigo
DATE OF HEARING:	11 September 2019
DATE OF SENTENCE:	18 September 2019
CASE MAY BE CITED AS:	DPP v Hughes & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1521

REASONS FOR SENTENCE
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecutions
For Accused Hughes	Ms E. Miller	Victoria Legal Aid
For Accused Hutchinson	Ms K.Rolfe	Camerons Lawyers

HIS HONOUR:

1James Vincent Hughes and Cameron Donald Hutchinson, you have each pleaded guilty to one charge of burglary, one charge of theft of firearms, one charge of theft, and one charge of prohibited person possess a firearm.  Those crimes carry maximum penalties of 10 years, 15 years, 10 years and 10 years respectively. 

2You also each pleaded guilty to uplifted charges of committing indictable offence on bail and deal with proceeds of crime.  On each of those, I simply direct that you serve one months' imprisonment to be served concurrently, and that is on each of the two for each of you.  We will just go from there.

3Each of you pleaded guilty at a reasonably early opportunity.  Each one of you has purported to express remorse.  Each of one you must clearly get the utilitarian benefit of that plea of guilty.

4You, Mr Hughes, are 39 years of age.  You, Mr Hutchinson, are 34.  You each have a criminal history and each of you have been to gaol before.  There is no suggestion anything other than a custodial sentence to be served is appropriate in these circumstances, it is merely disposition or potential disposition at the conclusion of that sentence. 

5You, Mr Hughes, at the time of the offending were on bail, it is an aggravating feature; so were you, Mr Hutchinson.  You, Mr Hughes, were on bail for dishonesty offences.  You were also in breach of a community corrections order imposed in the Magistrates' Court.  I asked for, and I received, the summary for the matters that you were on that CCO for. 

6Each of those two matters that I am concerned about here was in fact a commercial burglary.  You burgled the Tallygaroopna Golf Club, and that was clearly a deliberate, conscious and planned act.  The vehicle you were in was pulling a trailer.  I do not know who the burglars are, but they certainly want to offend with you. 

7The other that you were on a CCO for was the burglary at the Tatura Family Butcher shop in Tatura.  I note that that was a butcher shop that had formerly been owned by you.  Clearly, they were commercial burglaries, and whilst on a CCO for those, you were engaged in the offending that took place here.

8Your other criminal history is more significant than Mr Hutchinson's, and significantly in terms of rehabilitation, not the objective seriousness of the offence, he is in a different position to you, both by reasons of age, which is not that great, but also by reasons of previous dispositions and potential for rehabilitation. 

9A summary of the offending is as follows.  I point out, as I did during the course of the plea, I have got grave suspicions about a lot of what you two have said about this offending and how it all came about.  But in any event, I am not here to speculate, and though I might do it during the course of the plea, you will not be sentenced on the basis of speculation. 

10The situation here is that Mr and Mrs Hewson lived on a property near Kyabram.  On 4 January 2019, they travelled to Phillip Island for a holiday.  They locked up and secured the house and the sheds.  At approximately 4 o' clock on
6 January, their daughter was checking up on the property and feeding the birds. She discovered that the big shed was wide open, with the roller door open about a metre.  She also noticed that a fly screen had been taken off the window.  She then called her parents to tell them what she found and confirmed that the gun safe had been taken from the shed, but the house was still secure. 

11The Kyabram police were then called, and they were there within 15 minutes.  At some time between 7 am on Friday 4 January 2019 and 5 pm on Sunday,
6 January 2019, the two of you had driven into the property at the MacGregor Road near Kyabram.  That driveway was 200 metres long and leads up to the house and the sheds. 

12The two of you saw that no one was home, so then decided to look around the buildings.  During that time, you, Mr Hughes, entered the small shed and stole an anvil.  The pair of you both then left the property and decided to come back later at night when it was dark.  You both then did that and I indicated during the course of the plea the whole set of circumstances here are suspicious; I find it hard to believe the pair of you had not looked inside that big shed when you knew nobody was there and why you waited until dark to come back and clean it out.  But again, I can only sentence on what is in front of me.

13When you did come back, the pair of you stole something in the order of $20,000 worth of cash, nearly $20,000 worth of cash, and most importantly, in my view, firearms.  There are a number of other items of real significant value that were stolen, and the total value is in the order of $37,000, that is about $20,000 for property and over $19,000 of the cash.  The firearms were valued at approximately $5500. 

14The two of you then left the address with the stolen property and went to the home of Mr Honnua Tarua near Lancaster.  At that address, the gun safe was forced open, bearing in mind that - I have no evidence before me whether you knew that there were guns in that safe, but I have no doubt you knew it was a gun safe, and the firearms and the cash was found.  There is no suggestion that you already knew that the cash was there.  That cash has not been recovered, and on the face of it, it has appeared to have been spent on gambling and drugs. 

15Two days after that, the pair of you went back to Mr Tarua's house and picked up the gun safe.  It was then taken and thrown into the Goulburn River - well, at least that is what I think you have told the police; police were unable to recover the safe from the Goulburn River.  It seems clear that sometime after his transaction took place, where the money was shared equally between the three of you, you two went back and must have spoken to Mr Honnua about what had happened to everything. 

16Each of you has professed to the police in your records of interview that you had no idea what happened to the guns.  You, Mr Hughes, have endeavoured to provide information which proved, I think, in the end, somewhat fruitless.  Each of you has refused to make a statement, as I understand it, against
Mr Honnua.  I think you know a lot more about this than either of you is saying.  But again, I am not going to speculate as to what all the background of this might be.  It is a common situation in rural areas that it becomes known that somebody does have guns and that house is then targeted.  It can be done through gun clubs or any other form. 

17Whether you intended to just get guns, bearing mind the house was not touched, or you just happened to accidentally come across them, I do not know.  The fact of the matter is that once you discovered you had guns, you disposed of them.  And clearly, the pair of you allowed dangerous firearms to be unleashed into the community.  That is a serious act of theft, in my view. 

18In any event, police executed search warrants, various items were found, and the pair of you were ultimately interviewed towards the end of January.  You both said that you were there, you both tried to say it was spontaneous and had not been really planned.  I do not know much about any of that. 

19And it was you, Mr Hughes could not explain why Honnua got his $7000 share of the money, Mr Hutchinson reportedly not really knowing what was going on.    I have the view, as I said, that you went there in the morning and then returned at night and had the enormous good fortune to find firearms of that sort of value, and money to that extent.  Be that all as it may.  As I have said, each of you has got prior convictions and you, Mr Hughes, have been involved in this type of offending previously. 

20Tendered were victim impact statements included in the one document.  That victim impact statement clearly describes the plight of two mature people who had been saving up for a once in a lifetime holiday which they will now no longer have.  They will now live on a rural property without any feeling of safety, knowing, as they described, that their property had been totally invaded.  They now find it unnerving to think that total strangers had been there and caused this pain and anguish to them. 

21Whether or not each of you has genuine remorse in relation to that, I do not know.  Each of you has expressed remorse and I have to sentence on that basis.  Mrs Hewson is afraid of being on her own.  This is obviously a consequence of burglaries such as this and it can be heightened in that sense of isolation which comes with a rural property. 

22I am not going to go through the prior convictions of each of you, they speak for themselves and I think my short encompassment of it describes them. This, in my view, is very serious offending.  It calls for the application of general deterrence, specific deterrence, denunciation, and obviously there must be an appropriate punishment. 

23As is already indicated and agreed, an active custodial sentence is inevitable.  So, I will then look to each of you.  The submissions originally put on your behalf, Mr Hughes, were that a sentence to be followed by a community corrections order would be sufficient.  I am aware of the limitations upon the gaol sentence can be imposed in those circumstances.  I had you assessed for a community corrections order and you have been found to be unsuitable.  I would only fly in the face of one of those assessments if there was very powerful reason to do so; in your situation, there is none. 

24Your background is outlined in documents that were placed before me.  You had a difficult upbringing, I accept all that, but you are now 39 years of age.  You became something of a tearaway at school, but you then went on to become a qualified butcher and on the instructions you gave, you went on to purchase your own butcher shop in Tatura, which is, I have noted, the very shop that you burgled.

25You had circumstances where an employee was killed, and I accept that you have had difficulty coming to terms with that.  You sold that shop in Tatura. You got another business in Shepparton which you also sold, and your marriage broke down in 2016.  You do have convictions from prior to that time, but that appears to be when your serious offending began.  You had been in a long-term relationship and there are four children of that relationship. 

26It was around about 2015, I am told, that you started to experience genuine issues with drugs and the relationship began to break down.  You have re-partnered some years ago and have a two-year-old son and a three-and-a-half-month-old daughter from that relationship; you have not met that child. 

27Prior to being placed in custody, you lived in your mother's house with the son and daughter, and whilst the son is still living there, the daughter has shifted to Brisbane to live with her mother.  As I understand it, she is pregnant.  Her other brother and sister are apparently also up there. 

28You have had clear issues with depression, and it is a situation where your offending, I accept, is drug related.  It is put in the submissions that the offending was relatively opportunistic - well, I do not think that is right, the pair of you went back there knowing what you were going to do to prepare for it and carried it all out.  I do not accept necessarily that you just came across the property.  I do not accept necessarily that you did not now what was in the shed.  But, as I say, going back that night was a planned exercise. 

29There are reasons why, I suppose, it could be regarded as a lower order burglaries, if there can be such a concept, that the house was not burgled.  There is no suggestion here that there was any serious damage caused to the shed.  I do not necessarily accept that the offending was unsophisticated, or I would be interested to know - though again, it is just speculation on my part how you got the gun safe off the wall.

30Some of the property has been recovered and we then have the situation of the cash being, for some bizarre reason, shared with Mr Tarua, and Mr Tarua keeping the guns.  Whether you both owed him massive drug debts or whatever, I have got absolutely no idea. 

31I accept that you have pleaded guilty and I do not accept necessarily that you would not have done this act without other people being present because that is what you have done in the past.  It would appear that you have started to develop some sort of insight into your offending.  You made an offer to pay back the money, which is a bit too late in this situation.  If you had paid it back, it might make some difference.  In any event, as a consequence of that offer, in part, there has now been a compensation order made.

32It is said that you do not appear to have necessarily any antisocial traits, and I have read the report of Mr Simmons, which I have taken into account.  I do not think in these circumstances I need to go through all that childhood background; you are fully aware of it and I will direct that the report remain on file. 

33That report from Mr Simmons describes how you did you your apprenticeship, how you became qualified as a butcher, how it all fell to pieces, and how you started to use drugs to a much greater level. 

34Unfortunately, it has all ended in this way.  It is, I think, probably the case that both you and Mr Hutchinson were way out of your depth in all this but, unfortunately, for the pair of you, you have now got to pay the price for doing that. 

35The prospects of rehabilitation, Mr Hughes, I think, have to be guarded.  The comments made in the community corrections order assessment would fit with the views I have taken, and the risk of you reoffending if you use drugs is going to be high.  If you do not use drugs in the future, the risk of your reoffending may well be moderate or even low, but that will a matters for others to determine at a future date. 

36Insofar as you are concerned, Mr Hutchinson, you are younger and your prior history is, in my view, not as significant.  Again, matters were put on your behalf and I take them all into account.  There is a report from Ms Lechner, which I have read.  There were submissions from your counsel.  You have done courses in gaol, as indeed has Mr Hughes, which is to the credit of each of you, rather than just sit in a cell and stare at the floor, that you are trying to achieve things and making some sort of endeavour to rehabilitate yourself. 

37You, Mr Hutchinson, as I have said, have been in gaol before.  The simple circumstances in your situation are that your parents separated when you were very young.  There was domestic violence involved in all that.  Your family history, I do no think, needs to be gone to, you grew up around Murchison, relocated to Melbourne.  You do have a good work record.  You left Mooroopna High School to do an apprenticeship. 

38You completed a certificate in retail management.  You have been managing a local IGA at the age of 18.  You did an adult apprenticeship in automotive and worked at various places, which are all outlined in the plea material.  After suffering a shoulder injury, you were on WorkCover for four years and unable to work at all for three years. 

39Upon trying to get back to work, your shoulder that had been injured was injured again.  I am told that you now have two pins in that shoulder, and you cannot lift your arm above a height.  Obviously, that causes you difficultly, and the inability to work has caused you to be depressed.  You then broke up with your, at that time, partner and you started to use more and more ice, and that was the situation with each of you.  Your drug use has, as undoubtedly with
Mr Hughes, estranged you from family and friends.

40Ms Lechner said that you have impressed her as being capable of reflecting and consequential thinking, but easily overwhelmed by emotional factors that, with drug use, undermine judgment and decision-making skills.  She reports that you had - yourself had reported good progress in prison, and you are now accommodated in a lodge, which from my own knowledge, I know, shows that you are indeed trying to make the best of a bad lot whilst you are in gaol. 

41The prospects of your rehabilitation - indeed, with Mr Hughes, I think - have to be regarded as guarded, but I think you are probably a better chance, if I can put it that way.  The risk of you reoffending is again, I think, totally dependent upon whether you can give up the use of drugs or not. 

42The submission on your behalf was that a sentence with a community corrections order to follow would be appropriate, and in these circumstances, there is some reservation.  I have decided that is the course to take.  I had you assessed for a CCO and you have been found to be suitable.  Each of you has now served 233 days in prison, and each of you, if you can get out of gaol and if you cannot use drugs, you should be capable of being useful members of the community, but ‑ ‑ ‑

43MS ROLFE:  I hesitate to interrupt, Your Honour. 

44HIS HONOUR:  No, that is all right.

45MS ROLFE:  Just in relation to pre-sentence detention, we had it at 237, it was 230 at the time of the plea, which was the 11th, and we are now at the 18th, so that is correct.

46HIS HONOUR:  Yes, thank you.  Thanks. 

47MS ROLFE:  Yes.

48HIS HONOUR:  No, thanks for that.  Yes, 237 days.  Yes, thanks, Ms Rolfe.  I forgot what I was going to say next.  All right.  Yes, look, this is a situation where the pair of you, if you keep up this sort of behaviour, you are going to spend most of the rest of your lives in gaol.  It is a situation where the sentence has to reflect the damage that you did to your victims, the sheer invasion of their personal space and the lifetime, I suspect, the effect that this will have upon them.

49I have to take into account, of course, current sentencing practices, it is not an aggravated burglary and I must be careful not to impose an aggravated burglary sentence.  However, my real concern is the firearms.  If people think they are going to be able to steal firearms and put them into the community and put the lives of other people at risk without receiving significant gaol terms, they have to be mistaken.  However, there does not have to be a crushing gaol term and I have taken into account the concepts of totality. 

50Accordingly, taking all those matters into account and the materials that has been provided on behalf of each of you, I sentence as follows.  I have indicated the difference that I see between you insofar as parity is concerned.  I do not know that I need to go into any more detail than that, other than pointing out, as I think I would have; if I have not, I apologise that you, Mr Hughes, have had a number of opportunities through Corrections and you, Mr Hutchinson, have never had an opportunity through Corrections, which is again one of the factors I take into account. 

51Mr Hughes, on Charge 1, 18 months.  On Charge 22, the theft of the firearms, 21 months.  On Charge 3, 12 months.  On Charge 4, 12 months.  As I indicated, on the two summary matters, one month on each concurrent.  I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2. 

52I direct that Charge 3 and Charge 4 be served concurrently because there is very significant overlap, and we have discussed that during the course of the plea.  That is a total effective head sentence of 27 months  In these circumstances, I direct that you serve a minimum term of 20 months before becoming eligible for parole, and I direct that 237 days be reckoned as having been served under this sentence.

53By reason of s.6AAA, I say to you that but for your plea of guilty - in other words, if you decided to fight these out and been convicted of these charges - I would have sentence to be imprisoned for a period of three years and four months, with a minimum period of two years and six months. 

54You, Mr Hutchinson, are in a somewhat different category though, the objective seriousness of the offending.  It seems pretty much the same.  Charge 1, nine months.  Charge 2, 12 months.  Charge 3, eight months.  And Charge 4, eight months. 

55I direct that three months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.  I direct that Charge 3 and Charge 4 be served concurrently.  And as I already indicated, on the two summary matters, one month on each to be served concurrently.  That means a total effective sentence of 15 months. 

56In the circumstances and bearing in mind the provisions of the Sentencing Act, I direct that 237 days be reckoned as having been served under that sentence.  That being so, I am then able, pursuant to the Sentencing Act, to impose a community corrections order to follow upon your release.  That community corrections order will be for a period of two years and will contain the following conditions. 

57That you must be under supervision.  It will be with conviction, obviously.  Must undergo an assessment and treatment for drug abuse and dependency and must participate in programs or courses that address factors relating to the offending as directed by the regional manager.  In other words, you will be under supervision for a period of two years, which is significantly longer than would have been the period of supervision, had you been granted parole. 

58Insofar as you are concerned, Mr Hughes, it was discussed with counsel - I am not really in a position to be discussing aspects of parole but that ultimately will be a matter between you and the parole board.  In your circumstances - yes, better get that signed first.  

59Yes, just while that is being signed, in respect of each of you, I make an order pursuant to s.464ZF of the Crimes Act, for you to provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

60MS ROLFE:  Might I approach, Your Honour?

61HIS HONOUR:  Yes, of course.  He does not have to sign it.  All right, now before I sign this, Mr Hutchinson, you understand what the consequences of this are?  Mr Hughes is going to have to deal with the parole board.  If you reoffend or breach this, you are going to have to deal with me.  Now, if you had not been given this chance, start doing burglaries again or anything along these lines, I will gaol you; clearly understood?

62ACCUSED HUTCHINSON:  I understand, Your Honour.

63HIS HONOUR:  All right.  Sorry, gaol you again.  All right, the CCO is made.  There is no other orders I have to make, I think.

64MS ROLFE:  No, Your Honour.

65HIS HONOUR:  No, all good.  All right, we will just stand down till we come back.

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