Director of Public Prosecutions v Hughes

[2018] VCC 2169

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00613

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN HUGHES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2018
DATE OF SENTENCE:	18 December 2018
CASE MAY BE CITED AS:	DPP v Hughes
MEDIUM NEUTRAL CITATION:	[2018] VCC 2169

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Goodenough
For the Accused	Mr M White

HIS HONOUR: 

1Mr Hughes, on 18 March 2017, your victim was in the public car park of a supermarket in Ballarat.  It was about ten at night when he asked you and your co-accused for a cigarette lighter.  He knew your co-accused, but did not know you.  Shortly after this innocuous request, you set upon the victim, beating him with punches, kicks and stomping.  He was rendered unconscious.

2The attack, with kicks and stomps, continued while he was down and unconscious.  After he came to, you and the co-accused decided to rob him.  It should be noted that you restrained your co-accused to some degree, but in the end, a knife was brandished and held to his face, and his bag was removed from around his waist by you and then stolen.  He lost his phone and his wallet and his personal cards.

3This brutal, unprovoked, senseless attack was witnessed by members of the public who bravely chased you and your co-accused, eventually bringing the police to where you were.  You were arrested and interviewed.  You denied any wrongdoing.

4This was serious offending by two violent men in a public place.  The victim stood no chance.  The dangerous weapon was brandished and frightening threats made.  The proceeding assault was cowardly and sickening.  You have pleaded guilty to intentionally causing injury and armed robbery.  Your sentence will be less because of your plea of guilty.  I have seen the photographs and read the material relating to the victim's injuries.

5As I hope I have made clear, this conduct was serious offending of a kind that must be met with stern punishment, being years of imprisonment.  This is the case so as to express proper denunciation and deterrence to you and to others.  I must also give weight to deterrence to you, as I have noted, given your past extensive criminal history.  I will detail those matters in due course, touching on your own personal circumstances, and I turn to those now.

6You are now 40.  You were raised in Ballarat in an unhappy family.  You left school at about 15, the later years being unproductive due to poor attendance and mixing with others not terribly interested in education.  You have never had significant periods of employment, living, it seems, on your own account, an itinerant-type lifestyle in and around Ballarat.

7Your criminal history is extensive, commencing in the adult courts over 20 years ago in 1997 and continuing with regular appearances for a wide array of offences, including some of violence but not as many as other offending in respect of drug offences, dishonesty, and driving.  You were placed on many community corrections orders or the like, and have routinely breached them and been returned to court.  You have served several short sentences of imprisonment.  But this offending is by far the most serious offending in your past.

8You have a long history of drug use and alcohol abuse.  The prison sentence that I will impose will be your longest period of abstinence.  You must endeavour to seek help to deal with these issues, but in the end, it is for you.  Otherwise, you will see yourself wasting more of your life in the inevitable further gaol terms if you are unable to deal with your drug and alcohol problems.  And in this regard, I will allow for a potential parole period so that you are supervised and hopefully supported upon your release.

9You had a view that over the years, you had an acquired brain injury.  The plea that was commenced was adjourned so as you could be assessed during the assessment undertaken by an acquired brain injury specialist service, Arbias, by a clinical neuropsychologist, Ms Blazniak, whose report is dated
14 December 2018.

10During that assessment, you reported a number of assaults and other incidents where you lost consciousness.  She had access to medical records as well.  However, in the end, her expert opinion was the following, and I quote:

"Mr Hughes performed at expected levels on tasks assessing verbal skills, visual skills, working memory, most aspects of executive function, and visual, learning and memory.  His performance on processing speed tasks were not consistently slow.  He presents with an isolated cognitive weakness in verbal learning and memory which is consistent with his self-reported difficulties of distractibility and forgetting conversations.

Taken together, there is no convincing evidence of an acquired brain injury on formal neuropsychological evaluation.  It is possible that Mr Hughes has experienced a mild traumatic brain injury or injuries in the past.  However, it is noted that most individuals demonstrate good recovery from concussion-type injury of this nature within three months."

11She went on:

"Mr Hughes' current performance, presentation, and background history, including medical records, are not consistent with an acquired brain injury."

12It was noted that you have anxiety and are depressive.  These were not said to be relevant impaired mental functionings, but I note them.

13You have been in custody since 20 December 2017, but there have been intervening sentences, meaning that your pre-sentence detention is less than the full amount since 20 December 2017.  But I do take into account the whole time that you have been in custody.

14Your crimes were violence on a man who became quickly overwhelmed. 
As explained, your role in the armed robbery was not as violent as your co-accused, but you were complicit and have pleaded guilty to both offences. 
This gratuitous violence in public streets, seemingly over other criminality such as drug supply and use, is to be condemned.

15Denunciation is paramount, as is deterrence to others and to you.  Those sentencing purposes mean, in practical terms, stern punishment involving years of imprisonment.  Your rehabilitation is not overlooked, but your prospects, in my view, are guarded at best.

16As indicated, your plea of guilty has been taken into account and your sentence is less than it otherwise would be.

17Just before I announce the sentence, gentlemen, I have just lost the piece of paper that has the pre-sentence detention recorded.  I am sorry.  Two hundred and forty-seven days?

18MR WHITE:  Twenty-four, Your Honour.  Two hundred and twenty-four.

19MR GOODENOUGH:  Two hundred and twenty-four.

20HIS HONOUR:  Two hundred and twenty-four.  The last one.  Two twenty-four days?

21MR WHITE:  Yes.  There was that Renzella.

22HIS HONOUR:  Yes, that is right. 

23For committing the crime of intentionally causing injury, you are sentenced to a term of imprisonment of two years.

24For committing the crime of armed robbery, you are sentenced to a period of three years and six months.

25I order that one year of the sentence imposed on the intentionally cause injury be cumulative upon the sentence imposed on the armed robbery, giving a total effective sentence of four years and six months.

26And I order that you serve two years and eight months before being eligible for ‑ ‑ ‑ 

27OFFENDER:  Are you fuckin' mad?

28HIS HONOUR:  ‑ ‑ ‑ eligible for parole.  Just be quiet please.

29MR WHITE:  Quiet.

30OFFENDER:  You're mad. 

31MR WHITE:  Quiet, Stephen.  Please.

32HIS HONOUR:  The time that you have spent in custody has been reckoned at 224 days.  That period of time having been reckoned, I declare that it is part of the sentence that I have just imposed, and I will ensure that this declaration is entered into the records of the court so that the authorities are left in no doubt that you have already served 224 of the sentence I have just imposed.  What other orders are there?

33MR WHITE:  Just 6AAA, Your Honour.

34HIS HONOUR:  Sorry.  In respect of the sentence, 6AAA, had you pleading not guilty to these matters and been found guilty of them, I would imposed a sentence of six years with a minimum of four.  Is there anything further?

35MR WHITE:  No, Your Honour. 

36HIS HONOUR:  Thank you.  Mr Hughes can be taken downstairs.

37OFFENDER:  Fuckin' dog.  Appeal it.  Don't even talk to me.  Just appeal it.  Fuckin' dog.

38MR WHITE:  Sorry, Your Honour.  I regret that.

39HIS HONOUR:  It is no skin off my nose.

40MR WHITE:  I tried to prepare the ground, but there is only a certain amount of control you have, Your Honour.

41HIS HONOUR:  Yes, that is no problem at all.  I am surprised it does not happen more.  Thank you very much for your assistance.

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